Delhi District Court
State vs . : Vivek Kumar Saxena on 31 August, 2022
IN THE COURT OF SH. SUKHMAN SANDHU:
MM-03(SD) / SAKET COURT: DELHI.
State Vs. : Vivek Kumar Saxena
FIR No. : 104/2022
U/s. : 188 IPC
PS : S.J.Enclave
JUDGMENT
a). Sl. No. of the case : CRC/2649/2022
b). Date of institution of the case : 13.04.2022
c). Date of commission of offence : 14.01.2022
d). Name of the complainant : HC Anil Kumar No.
323/SD.
e). Name & address of the : Vivek Kumar Saxena,
accused S/o Shri Laxman Singh,
R/o Adrash School
Ke Pass, Stadium Nadar, Distt. -
Bharatpur,
Rajasthan.
f). Offence charged with : 188 IPC
g). Plea of the accused : Not guilty.
h). Arguments heard on : 30.08.2022
I). Final order : Acquitted.
j). Date of Judgment : 31.08.2022
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated the facts of the case, as culled out from charge-sheet are that on 14.01.2022 at about 10.25PM at IGNOU Road Picket near wine shop, New Delhi, within the jurisdiction of P.S. Neb Sarai, accused was found roaming without any just cause when lockdown was imposed in Delhi and thereby violated order no. 7284-92 / R. ACP / Sangam Vihar dated 27.12.2021 and thereby committed an offence punishable under Section 188 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). The present case was registered upon the complaint of HC Anil Kumar and after completion of investigation the present charge-sheet was filed against the accused for the offence punishable under section 188 IPC.
2. After going through the charge sheet and entire material available on record, cognizance was taken and the accused was summoned. Copy of charge sheet was supplied to accused in compliance of section 207 IPC. On the perusal of charge sheet, prima facie offence under Section 188 IPC was made out against the accused persons and accordingly, notice under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") was framed against the accused.
3. In order to substantiate its case, the prosecution has examined two witnesses.
4. PW1, HC Anil No. 4848 deposed that on on 14.01.2022, at about 10:30- 11:00 PM, he along with HC Anil were present at IGNOU Road picket, Near Wine Shop, New Delhi when he saw the accused Vivek was coming from Badapur side and was going towards IGNOU Road, upon being asked his reason for roaming in the curfew he could not give any satisfactory reply. Thereafter, he gave the information to the HC Anil Kumar who prepared the tehrir and handed it over to him for the registration of the FIR.
5. PW2, HC Sanjeev Kumar deposed similarly stating that at about 10:25 PM accused Vivek Kumar Saxena came in a car, he was stopped and asked as to why he was wandering on the road as lockdown was imposed, however he did not give any satisfactory answer.
6. Vide separate statement recorded under Section 294 CrPC, accused admitted the genuineness of FIR and permission under Section 195 CrPC. Therefore, the said documents were directed to be read in evidence without their formal proof.
7. After examination of the prosecution witnesses, prosecution evidence was closed and statement of the accused Vivek Kumar Saxena under section 313 CrPC was recorded. In the said statement, all the incriminating evidence against the accused was put to him for his explanation to which he denied all the evidence. He further stated that he is innocent and has been falsely implicated. He further stated that he does not wish to lead the defence evidence. Accordingly, DE was closed and the final arguments were heard.
8. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have also carefully perused the case file.
9. It has been argued by the Ld. APP for the State, that the essential ingredients for an offence under Section 188 of the IPC have successfully been proved by the prosecution beyond reasonable doubt, the witnesses have supported each other's testimony and have thus stood the test of cross examination.
10. Per contra, it has been argued by the Ld. Counsel for the accused that there are numerous contradictions in the case as put forth by the prosecution.
11. Firstly, it has been argued by the Ld. Counsel for the accused that the case of the prosecution as per the rukka, the FIR, the application for permission under Section 195, CrPC, the actual permission, is that the accused was found wandering without having sufficient reason during imposition of lockdown, whereas in their cross-examination it was elicited from the prosecution witnesses that the accused was travelling by car and was thereafter stopped.
12. Secondly, it has been argued by the Ld. Counsel for the accused that the notification of the ACP which the accused is stated to have violated, is not on record, and that the accused not being a resident of Delhi was not made aware of the same either.
13. Thirdly, it has been argued by the Ld. Counsel for the accused that the notification of the DDMA which the prosecution has sought to rely upon, provides for a curfew time of 11:00 PM, and in their examination the time stated by one prosecution witness is 10:25, and the other is between 10:30 and 11:00 pm, accordingly, the accused has not violated any order.
14. The cardinal principle of criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond a reasonable doubt. The burden of proving guilt of the accused exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
15. The notification of the ACP which the accused is stated to have violated, is not on record, no evidence has been led by the prosecution qua the same. The order on record, which too was placed on record by the Ld. Counsel for the accused, which is the notification of the DDMA, provides for a curfew time of 11:00 PM, and the accused was as per one prosecution witness at 10:25 and as per the other between 10:30 and 11:00.
16. In conclusion the prosecution has been unable to establish the order which was violated by the accused, the time when the same was violated by him, which is the essence of the same, and for that matter whether the accused was on foot or in his car! In the absence of proof with respect to the same, the prosecution has miserably failed in bringing home the charge under Section 188, IPC against the accused.
17. Moreover, there is another grave error in the approach of the investigating agency, in the investigation of the present case. In the instant case, only two witnesses that is, PW1 & PW2 have been examined and PW2 HC Anil Kumar No. 323SD is the complainant as well as IO in the present case. It is settled law that for the fair investigation which is the very foundation of fair trial the investigator and the complainant cannot be the one and the same person and if that is the case the said fact vitiates the trial.
18. In this regard I place my reliance upon the judgment of the honourable Supreme Court rendered in Mohan Lal vs State of Punjab reportable as AIR 2018 SC 3853, wherein, it was held that;
"In view of the conflicting opinions expressed by
different two Judge Benches of this Court, the importance of a fair investigation
from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual facts of a case, may not only lead to a possible abuse of powers, but more importantly will leave the police, the accused, the lawyer and the courts in a state of uncertainty and confusion which has to be avoided. It is, therefore held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof. Resultantly, the appeal succeeds and is allowed. The prosecution is held to be vitiated because of the infraction of the constitutional guarantee of a fair investigation."
19. This court is of the considered opinion that in view of the law laid down by the Hon'ble Supreme Court of India, the said fact has gone to the very root of the case of the prosecution and a doubt has been created in favour of the accused regarding the fair investigation being conducted in the present matter. The same, coupled with the lack of any evidence against the accused, it can be safely concluded that prosecution has failed to prove its case against the accused Vivek Kumar Saxena beyond reasonable doubt. Hence, the accused Vivek Kumar Saxena is acquitted of the offence under Section 188, IPC.
Announced in the open court (Sukhman Sandhu)
on 31.08.2022 MM-03 (South Distt.) / Saket
New Delhi.