Delhi District Court
State vs Parvej Khan on 12 September, 2007
IN THE COURT OF ANAND SWAROOP AGGARWAL : METROPOLITAN
MAGISTRATE : KARKARDOOMA COURTS, DELHI
State V/s Parvej Khan
FIR No. 171/04
U/s 25 of Arms Act
PS : Khajuri Khas, Delhi
a) The Sl. No. of the case : 142/3
b) Date of the commission of : 30/04/04
offence
c) Name of the complainant : Ct Netrapal, No. 1333/NE, Ps
Khajuri Khas, Delhi
d) Name of the accused person and : Parvej Kha, S/o Firoz Khan,
his parentage and residence R/o C-Block, Gali No. 17, Sri
Ram Colony, Delhi
e) Offence complained of or proved : U/s 25 of Arms Act
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
1. Date of institution of case : 29/06/04
2. Date of hearing/conclusion of : 12/09/07
arguments & fixing the case for
orders
3. Judgment delivered on : 12/09/07
h) BRIEF STATEMENT OF THE REASONS FOR DECISION
1. In brief case of the prosecution against the accused is that on 30/04/04 at 8:00 p.m at DDA Park, Shree Ram Colony near Rajeev Nagar Bus Stand, within the area of PS : Khajuri Khas, Delhi accused was found in possession of one button operated knife Ex. P1 having the length and breadth as shown in sketch of the knife Ex. PW2/A without any valid permit or licence of the same. As such as per prosecution, accused has committed an offence punishable U/s 25 of Arms Act. On the basis of statement made by Ct Netrapal and pursuant to ruqqa sent by ASI Surender Pandey a formal FIR Ex. PW1/A was registered for the offence U/s 25 of Arms Act. Case was investigated into. The investigation ended in filing of charge-sheet U/s 173 of Cr.PC charging the accused with the commission of offence U/s 25 of Arms Act.
2. Vide order dated 09/08/07, accused was charged for the offence U/s 25 of Arms Act. Accused had pleaded not guilty to the charge and claimed trial.
3. To substantiate its case on judicial file, prosecution has examined as many as three witnesses. PW1 is ASI Ram Manohar, the D/O, who registered the formal FIR Ex. PW1/A. PW2 ASI Surender Pandey who is the IO of this case and PW3 Ct Narender Pal are who is the recovery witness/complainant and thereafter P/E was closed vide order dated 06/09/07. On 12/09/07, statement of accused recorded U/s 313/281 CrPC wherein accused denied the case of the prosecution in toto. However, accused did not intend to lead D/E.
4. I have heard Ld. APP for state and accused in person and gone through the case file very carefully.
5. In my opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted of the charges against him.
6. Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:
''22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
In the present case, the above said provision appears to have not been complied with by prosecution. The DD entry vide which Ct. Netrapal and ASI Surender Pandey had left the P/S for duty has not been produced/proved on judicial record. Even the number of the said DD entries made in Register No. II has not been brought on judicial record. In my opinion, at least in the facts and circumstances of the case, prosecution was under an obligation to prove on record, the above said DD entries vide which Ct. Netrapal and ASI Surender Pandey had left PS : Khajuri Khas, Delhi for duty so as to prove the possibility of two police officials reaching at the same place i.e the place of apprehension of the accused by Ct Netrapal within a very short interval of time. In this case immediately after the apprehension of the accused by Ct Netarapal ASI Surender Pandey also happened to reach at the spot of the incident. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution.
7. In the present case, before taking the formal/casual search of the accused Ct Netrapal had made no efforts whatsoever to ensure that search of the accused by him is witnessed by independent public witnesses, although the same were very much available at the place of the apprehension of the accused as the facts of this case suggests.
Also Ct Netrapal had not offered his own search to the accused before taking the search of the accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under:-
''10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated''.
Being guided by above said case law, it can be said that search of the accused by Ct Netrapal was in complete violation of the above said case law and the same can be said to be illegal.
8 As per the statement of Ct Netrapal/ruqqa sent by ASI Surender PAndey in the present case no efforts whatsoever were made by Ct Netrapal/ASI Surender Pandey to join independent public witnesses in the police proceedings despite the availability of the such witnesses near the place of the apprehension of the accused inasmuch as as per the site plan Ex PW2/E, there existed residential colony nearby the place of the apprehension of the accused. This failure on the part of the prosecution to make efforts to join independent witnesses in the police proceedings creates very serious doubts in the version of the prosecution case. At this juncture, it would be pertinent to refer to some case laws.
In case law reported as Pawan Kumar V/s The Delhi Administration, 1987 C.C. Cases 585 (HC), the Hon'ble Delhi High Court observed as under:-
6. ................................................................... Admittedly, '' there is no impediment in believing the version of the Police officials but for that the procedure has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses of that they refused to join the investigation. Here is a case where no effort was made to join any public witnesses even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not-
joining the independent witnesses in a case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstances throwing doubt on the arrest or the recovery of the knife from the person of the accused''.
In Sans Pal Singh Vs. State of Delhi 1999, CRI.L.J.19, Hon'ble Supreme Court of India has observed as under:-
''3.Inter alia, it has been urged by learned counsel for the appellant that it would not be safe to maintain the conviction because the recovery of the illicit arms did not inspire confidence, supported as it is, by the evidence of two police officials alone, unassociated by the testimony of any independent witnesses. It has also been urged that witnesses of the public were available and neither were they associated nor was any explanation given at the trial as to why they were not associated. From the evidence of PW-5 Head Constable, Sat Pal Singh, it is clear that the police party did not ask public witness to be witness at the time of search of the accused. Likewise P.W.6 Sub Inspector, Mahipal Singh has also stated that no public witness was joined at the time when the recovery was being effected. It is thus evident that public witnesses were available and could have been associated to witness the recovery. It would have been a different mater altogether had there been no public witness available or none was willing to associate. Here, as said before, public witnesses were available but no explanation on these lines is forthcoming. Thus, we got to the view that it would be unsafe to maintain the conviction of the appellant for the offences charged. We, therefore, order his acquittal''.
In case law reported as Pardeep Narayan Madgonkar etc, etc., vs. State of Maharashtra, AIR 1995, Supreme Court 1930, Hon'ble Supreme Court of India has observed that failure of police to join any independent witnesses of locality creates doubt about fairness of investigation. Accused would be entitled to benefit of doubt.
In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
18. It is repeatedly laid down by this Court that in such '' cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shop-
keepers had declined to join the raiding party, the police could have later on taken legal action against such shop- keepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
In a case law reported as Roop Chand V/s The State of Haryana, 1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
3. I have heard the learned counsel for the parties and '' gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do do so on the ground that their joining will result into enmity between them and the petitioner''.
4.
'' It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
9 In this case as per the version of the prosecution, accused was in possession of a button operated knife without any licence/permit for the same. Very surprisingly, no efforts whatsoever have been made by the prosecution to have clue about the source from where knife was arranged for by the accused. At least some efforts must have been made by the police to interrogate the accused and conduct requisite investigation to know as to from where accused arranged the button operated knife.
10. As per the averments made in the ruqqa, the seal after used on the pulanda containing the knife allegedly recovered from the accused was given to none else but to the complainant himself. Complainant of a case is always interested in the success of the case of the prosecution and keeping in view of this factum chances of fabrication of case property cannot be ruled out beyond doubts. Further is is equally pertinent to note that the entire judicial file as well as police file is silent as to when the seal was given back by Ct. Netrapal to the IO of this case.
11. Also there is no explanation from the side of the IO as to from where he had arranged for the necessary material/articles for sealing the knife allegedly recovered from the possession of the accused by making a pulanda of the same by using white cloth.
Also it has not been mentioned as to from where the stamp pad for taking the thumb impression of the accused on search memo, khakha chaku, personal search memo and arrest memo was arranged for. There is no averments in the statement of Ct Netrapal or in the ruqqa that at the relevant point of time, ASI Surender Pandey was carrying alongwith him the IO bag.
12 In this case police has not complied with provisions of standing order No. 82 regarding the time from within which the charge-sheet must have been filed by the concerned SHO. Accused was arrested on 30/04/04 and charge- sheet was filed on 29/06/04. As per standing order No. 82 it is the responsibility of the SHO concerned to see that in case like the present one investigation is completed within 24 hours and charge-sheet is submitted immediately thereafter. In this case there is inordinate delay in filing the charge-sheet.
As such accused is acquitted of the charge against him. Bail bonds are discharged. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 12/09/2007 (ANAND SWAROOP AGGARWAL) METROPOLITAN MAGISTRATE KARKARDOOMA COURTS, DELHI