Delhi District Court
State vs Najim on 5 August, 2024
IN THE COURT OF MS. RICHA SHARMA ADDITIONAL
CHIEF JUDICIAL MAGISTRATE-01, TIS HAZARI COURTS,
DELHI
STATE VS. NAJIM
FIR No. 404/2023
PS: Pahar Ganj
U/s 188 IPC
Date of Institution of case : 05.06.2024
Date of Judgment reserved : 05.08.2024
Date on which judgment pronounced : 05.08.2024
JUDGMENT
1. Cr. Case No. :9601/2024
2. Date of commission of offence: 06.06.2023
3. Name of complainant : HC NIRDESH,
No. 1903/C, PS-
Paharganj, Delhi.
4. Name and address of accused : NAJIM
S/o Sh. Naseer Ahmad,
R/o Ward No. 4, Adrsh
Mishri Nagar Mahua
Khera Ganj, Kashipur,
Udham Singh Nagar, UK.
5. Offence complained of : U/s 188 IPC
or proved
6. Plea of accused : Pleaded not guilty
7. Final Order : ACQUITTED
Cr. Case No. 9601/2024
FIR No. 404/2023
PS Paharganj State Vs. Najim Page 1/15
BRIEF REASONS FOR DECISION
1. Vide this judgment, I shall decide the final outcome in the FIR No. 404/2023, registered at Police Station: Paharganj, wherein alleging the commission of the offence punishable under section 188 of The Indian Penal Code, 1860 (shall be referred to as 'IPC' in short).
PROSECUTION CASE
2. The prosecution case in brief is, that on 06.06.2023, at 10:00 pm, PW1/HC Nirdesh alongwith HC Krishan Kumar were on patrolling duty with respect to tenant/ servant verification. When they reached at Shop No. 102, Raja Saloon, Amrit Kaur Market, Pahar Ganj, Delhi, they found one person namely Danish, employed as servant in the above said saloon/shop, without due police verification and thereby the order No. 560- 620/ACP/Paharganj, dated 28.05.2023 Ex. A6, promulgated under Section 144 of The Code Of Criminal Procedure, 1973 (shall be referred to as 'Cr.P.C' in short) by ACP, Pahar Ganj, Delhi has been disobeyed. Hence, the instant FIR was registered against Najim, the owner of the said saloon/shop.
3. Investigation was conducted. Upon completion of investigation, charge-sheet was filed in the Court on 05.06.2024, against Najim for the alleged commission of the offence punishable under section 188, IPC.
Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 2/154. Thereafter, five witnesses were cited to be examined to prove its case by the prosecution
5. On 05.08.2024, cognizance of offence was taken and the accused was summoned. Accused put in an appearance in the Court. Copy of charge-sheet was supplied to him.
NOTICE U/s 251 Cr.P.C
6. On 05.08.2024, notice in terms of section 251 Cr.P.C was served upon the accused for the alleged commission of the offence punishable under sections 188 IPC, to which she pleaded not guilty and claimed trial. Therefore, further proceedings were carried out to record the evidence of prosecution.
ADMISSION AND DENIAL STATEMENT OF THE ACCUSED IN TERMS OF PROVISION OF SECTION 294 Cr.P.C.
7. The accused person has not disputed the genuineness of FIR Ex. A1, Certificate U/s 65-B of Indian Evidence Act Ex. A2, Endorsement on rukka Ex. A3, GD No. 0084A Ex. A4, GD No. 0062A Ex. A5, Notification No. 560-620/ACP/Paharganj, dated 28.05.2023 Ex. A6 and complaint U/s 195 Cr.PC Ex. A7. Therefore, the name of DO/ASI Ravinder Kumar and SO to ACP/ Paharganj, were dropped from the list of witnesses.
8. It is pertinent to note that PW/HC Krishan Kumar was dropped from the list of witnesses on the submissions of Ld. APP Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 3/15 for the State that he is the repeat witness and the relevant documents have already been exhibited during the testimony of PW1/HC Nirdesh.
WITNESSES EXAMINED BY THE PROSECUTION
9. HC Nirdesh and Sh. Danish were examined as PW1 and PW2.
PROSECUTION EVIDENCE
10. Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the prosecution witness.
11. As deposed by the PW1/HC Nirdesh, that on 06.06.2023, he was on patrolling duty with respect to tenant/ servant. At 10:00 pm, when he reached at Shop No. 102, Raja Saloon, Amrit Kaur Market, Pahar Ganj, Delhi, they found one person whose name was disclosed as Danish, who was working as servant in the abovesaid shop. On enquiry, that person said that Najim is the owner of the abovesaid shop and till today, his police verification has not been done by accused. He further deposed that on prior occasion, Delhi Police had already informed the public through camp and loudspeaker regarding the police verification of tenants/servants. By doing so accused, has violated the order of ACP bearing no. 560-620/ACP Paharganj, dated 28.05.2023, Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 4/15 which is already Ex. A6. Thereafter, PW1 prepared rukka Ex. PW1/A and FIR was got registered through HC Krishan Kumar After registration of FIR, HC Krishan Kumar came back alongwith the original rukka and the copy of FIR and Certificate 65-B of Indian Evidence Act and handed over the same to PW1. Thereafter, PW1 prepared site plan, Ex. PW1/B and Notice u/s 41A Cr.P.C Ex. PW1/C was served upon the accused. Accused was bound down vide pabandinama Ex. PW1/D. Complaint U/s 195 Cr.P.C Ex. A7 was obtained and after completion of investigation, charge-sheet was filed before Court.
This witness was cross-examined by the Ld. LAC for accused.
12. As deposed by the PW2/ Danish, that he was working with accused Najim since last two years at his shop at shop no. 102, Raja Saloon, Amrit Kaur Market, Pahar Ganj, Delhi. It is further by him, accused was running a saloon at the abovesaid shop and used to pay Rs. 10,000/- as salary to me. At the time of appointment he had given his voter ID card and two photographs to accused Najim. Accused used to give him salary in cash. It is further submitted by him, that accused was not maintaining any register qua his attendance and duties at the shop. He did not remember the exact date of his joining at the said shop. At one point of time, police met him and inquired him about the working duration at the said shop. He told to the police that he was working there since last two years. He did not know if his police Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 5/15 verification was got conducted. Thereafter, police recorded his statement.
This witness was cross-examined by the Ld. LAC for accused. Thereafter, prosecution evidence was closed vide order dated 05.08.2024.
STATEMENT OF THE ACCUSED PERSON
13. Statement of the accused has been recorded in terms of provisions of section 313 Cr.P.C. r/w 281 Cr.P.C. She stated that she is innocent and has been falsely implicated in the present case. Accused opted not to lead evidence. Thereafter, the matter was listed for final arguments.
FINAL ARGUMENTS
14. Final arguments have been heard. Records have been perused and considered.
15. The Ld. APP for the State has submitted that the prosecution has successfully proved its case against the accused beyond reasonable doubt as the disobedience of the said order, Ex. A6, by accused has been proved beyond reasonable doubt and accused is liable to be convicted in this case.
On the other hand, Ld. LAC for accused, in crux, has vehemently submitted that the accused was not having any knowledge about the promulgation of order, Ex. A6, and that he Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 6/15 has been falsely implicated. It has been submitted that when the accused was not having any knowledge about the promulgation of the order, he cannot be convicted. Ld. LAC has pleaded for the acquittal of the accused.
RELEVANT LAW AND PROVISIONS
16. "Section 188 IPC: Disobedience to order duly promulgated by public servant.--
"Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris- onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.--Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 7/15
It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm....."
"xxxxxxxxxxxxxxxxxxxxxxx"
EXAMINATION OF MATERIAL AVAILABLE ON RECORD INCLUDING THE EVIDENCE
17. In the instant case, the prosecution has alleged disobedience by the accused of the said order no. 560-620/ACP Pahar Ganj dated 28.05.2023 Ex. A6.
18. Relevant portion of the order dated, 28.05.2023, Ex. A6, reads as under:-
"Now therefore, in exercise of the powers conferred upon me by section 144 criminal procedure code, 1973 (No. 2 of 1974) read with Govt. of India, Ministry of Home Affairs and New Delhi's Notification no. U-11036/ (i) UTL, dated 09.09.2010, I, NARESH KHANKA, Assistant Commissioner of Police, Sub -Division Paharganj do hereby make this written order for strict compliance by the Owner/ Manager/ Leaser/ Caretaker of all such establishments of Hotels/ Guest Houses/ Hostels/ Paying Guest Accommodations/ institutions/ PG's/ Women hostels etc in the jurisdiction of Sub Division Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 8/15 Pahar Ganj, Central District, Delhi, who shall within the period of 2 months from the date of publication of this order:
(a) Install good quality of CCTV cameras in sufficient numbers and recording system with play back facility, to cover the area outside such Hotels/ Guest Houses/ Hostels/ paying guest Accommodations/ institutions/ PG's. The CCTV should monitor anyone entering or loitering outside such premises.
(b) ....xxxxxxxxxxxxxxxxx
(c) .....xxxxxxxxxxxxxxxxxx
(d) .....xxxxxxxxxxxxxxxxx
(e) Ensure deployment of security guard at the Main Gate entry.
(f) Ensure checking of Guests/ visitors at main gate with DFMDs/ HHMDs with trained staff.
(g) Maintain a register of guests/visitors and keep the copies of ID proofs systematically date wise.
.....xxxxxxxxxxxxxxxx This order shall come into force with effect from 28.05.2023 and shall remain in force for a period of 60 days upto 26.07.2023 (both days inclusive) unless withdrawn earlier.
Any such Hotels/Guest Houses/ Hostel/paying guest Accommodations/ institutions/ PG's/ Women hostel etc girl schools/ colleges, PG's for girl students and women (working) & girl hostels, which contravenes this order Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 9/15 shall be liable to be punished in accordance with the provision of section 188 of the Indian Penal Code: and As notice cannot be served individually on all concerned, the order is hereby passed ex-parte. It shall be published for the information of the public through the press and by affixing copies on the notice boards of the offices of all DCsP, Addl. DCsP, ACsP, Tehsil offices, all Police Stations concerned and the offices of NDMC & MCD.
19. The prosecution case is that the accused was the owner of the said shop / saloon and had appointed Danish as a servant in the said shop. As per the complaint made u/s 195 Cr.P.C by the ACP concerned, Ex. A7, also the accused had appointed said Danish as a servant and thereby disobeyed the said order Ex. A6.
20. A bare perusal of the said order Ex. A6, reveals that the said order had prohibited the landlord/owner of shops/ restaurants/ hotels/ guest house and any kind of business falling within the jurisdiction of PS: Paharganj from appointing a servant unless and until he had furnished the particulars of the said servant to the Station Head Officer of the PS concerned.
21. As submitted by the Ld. LAC for the accused, the promulgation of the said order Ex. A6, was not in the knowledge of the accused. It would be apt to note the authoritative pronouncement made by the Hon'ble Delhi High Court in Bhoop Singh Tyagi v. State, 2002 SCC Online Del 277. It has been Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 10/15 observed in that judgment that in order to secure conviction of the accused for the offence under Section 188 IPC, it was incumbent upon the prosecution to prove that (i) there was an order promulgated by a public servant, (ii) such public servant was lawfully empowered to promulgate such order, (iii) The accused necessarily had the knowledge of such order directing them to abstain from an act or to take certain order with certain property in their possession or under their management, (iv) The accused have disobeyed the order having its knowledge, (v) Such disobedience caused or tended to cause (a) obstruction, annoyance or injury or risk of it to any person lawfully employed or (b) danger to human life, health and safety.
22. It may be noted that the word 'promulgate' mentioned in section 188 IPC means "making known to the public, to publish, to officially announce. Form of publication may be different but prosecution has to prima facie indicate by placing some material on record to show that the order had been actually 'promulgated'. Where an order u/s 144 Cr.P.C. is not served in the manner prescribed under the law, section 188 shall not be applicable. If an accused does not know that an order has been promulgated, the requirement of the Section are not fulfilled.
23. No evidence has been produced to prove that order Ex. A6 was published or publicized in the locality where the accused residing or running the said shop. Further, neither in the charge-
Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 11/15sheet nor during evidence has the prosecution been able to produce any evidence to show that the accused had actual knowledge of the aforesaid order promulgated by the ACP concerned.
24. The prosecution has also failed to produce copy of any newspaper etc. wherein such order may have been published. Prosecution also failed to mention the name of the newspaper and date of publication of order in question. It has not even produced any photographs of the said order affixed on any notice board of any of the offices mentioned in the order of the ACP. Thus, there is no evidence produced by the prosecution to show that the order in question was ever published in any newspaper, affixed on notice boards of any of the offices specified in the order Ex. A6 or given any publicity in the general public on radio or T.V. Accordingly, presumption of knowledge of the order Ex. A6, cannot be attributed to the accused.
25. Further, no documentary evidence came on record which could prove beyond reasonable doubt that said Danish was appointed as servant by the accused. Furthermore, pertinently said Danish, who as per the case of prosecution and as deposed, was appointed as servant by the accused has not been examined by the prosecution and for which no plausible explanation has been offered by the prosecution which is fatal to the case of the prosecution.
Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 12/1526. Furthermore, as per the case of the prosecution and as deposed by prosecutions witnesses, the accused had employed Danish. The date of the alleged incident is 06.06.2023. Whereas the said order Ex. A6 came in force w.e.f 28.05.2023 and was effected till 26.07.2023. The language of the said order Ex. A6, appears to be progressive in nature and was not having retrospective effect. Thus, the said order Ex. A6, was not applicable on already existing appointment of servant but on the fresh appointment of the servant from 28.05.2023 till 26.07.2023. Therefore, even if it is presumed for the sake of argument that the accused had appointed Danish as a servant as alleged, the alleged appointment of servant was not covered by the said order Ex. A6.
27. Further, PW2/Danish deposed in his examination-in-chief, that accused did not maintain any attendance register and he did not remember the exact date of his joining at the said shop / saloon. He further deposed, that if his police verification was conducted or not.
In his cross-examination, he deposed, that no joining letter/ appointment letter was issued to him by accused but he does not have any documentary proof qua his working at the abovesaid shop / saloon.
28. In view of the above discussion, it is observed that the prosecution has failed to prove its case against the accused and Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 13/15 the disobedience of the said order Ex. A6, by the accused beyond reasonable doubt.
29. It is cardinal principle of law that the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the case of the prosecution should stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
30. In view of the above examination of the evidence and the material available on record, it is observed that the prosecution has failed to prove its case against the accused. Therefore, the accused person, namely NAJIM, is hereby acquitted.
Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 14/1531. Bail bond in terms of Section 437A Cr.P.C has been already obtained from the accused (since acquitted) in compliance of the judgment of the Hon'ble High Court in State Vs. Virender Yadav & Anr. 2014 I A.D (Del.) 389. Bonds accepted in terms of provision of section 437A Cr.P.C, 1973, shall remain in force for six months from today.
Digitally signed by RICHA RICHA SHARMA SHARMA Date:
Announced in the open Court today 2024.08.05 16:50:25 +0530 i.e. 05.08.2024 (RICHA SHARMA) ACJM-01(CENTRAL) TIS HAZARI COURTS/ DELHI Cr. Case No. 9601/2024 FIR No. 404/2023 PS Paharganj State Vs. Najim Page 15/15