Delhi District Court
Unknown vs State Of on 3 October, 2012
1
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, SOUTH EAST DELHI, SAKET
State v. Papinder
DD No. 27/10
PS HNDIN
U/s 53/116 D P Act
JUDGMENT
C C No. : 78/10/10
Date of Institution : 02.02.2010
Date of Commission of Offence : 25.01.2010
Name of the complainant : Krishan Lal
S/o Late Sh. Daulat Ram
R/o 8/9, Pant Nagar, Double Storey
Jangpura Extn. New Delhi
Name & address of the accused : Papinder Singh
S/o Late Sh. Bhag Singh
r/o House No. 7/9, Pant Nagar
Double Storey, Jangpura, New Delhi
Offence complained of : U/s 53/116 DP Act
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of reserve for judgment : 21.09.2012
Date of announcing of judgment : 03.10.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 53/116 State v. Papinder U/s 53/116 DP Act DD No. 27/10 , PS HNDIN 2 Delhi Police Act.
2. The story of the prosecution is that on 13.03.2010 accused Papinder was found roaming around 8/9 Pant Nagar, Double Storey, Jangpura Extension, New Delhi and despite direction issued to him to remove himself from that area, he failed to do so and thereby committed an offence under Section 53/116 DP Act. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused under Section 53/116 DP Act in the court. Notice under Section 53/116 DP Act was framed against the accused vide order dated 19.05.2011 to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused, the prosecution examined three witnesses namely (1) Krishan, (2) HC Prem Raj and (3) Ct. Sonu.
5. PW-1 Krishan deposed that on 25.01.2010 while he was standing outside his house, the accused started using filthy language to him. He objected to the same. Thereafter, the accused started beating him and one neighbour came and saved him from the accused. He informed the State v. Papinder U/s 53/116 DP Act DD No. 27/10 , PS HNDIN 3 police on 100 number. Police reached on the spot and recorded his statement which is Ex. PW1/A. Accused was arrested in his presence vide memo Ex. PW1/B and his personal search was also conducted vide memo Ex. PW1/C.
6. During cross examination, PW-1 denied that the accused never entered outside his residence. He deposed that he informed the police at about 4-5 PM and police reached the spot 10-15 minutes later.
7. PW-2 HC Prem Raj deposed that on 25.01.2010 he was posted at PP Jungpura, PS HNDIN as constable. He deposed that on receipt of DD No. 21 regarding quarrel, he along with IO HC Malkhan Singh reached at the spot where complainant met them. Thereafter, he along with complainant and Ct. Sonu went to Police Post where the complainant gave his statement Ex. PW1/A. He deposed that the accused was already declared BC (Tadipar) vide order dated 17.09.2009 of Additional DCP. Accused was arrested in his presence. He identified the accused in the court.
8. During cross examination, he deposed that the DD was received at about 4-5 PM but he does not remember the exact time. He along with IO State v. Papinder U/s 53/116 DP Act DD No. 27/10 , PS HNDIN 4 reached at the spot at about 5.30 PM. They reached at police post at about 6.30 PM. He deposed that he made departure entry in Roznamcha.
9. PW-3 Ct. Sonu deposed that on 25.01.2010 he was posted at PP Jungpura PS HNDIN as constable. He further corroborated the testimony of PW-2. During cross examination, he deposed that spot of incident is a residential colony. When he reached at the spot, accused was talking loudly and complainant was sitting in front of his house. He deposed that the residents of the colony were also present at the time of quarrel. He deposed that IO did not record the statement of any resident who were present at that time.
10.Thereafter PE was closed. Statement of accused was recorded wherein the accused pleaded innocence but did not lead any evidence in his defence.
11.I have heard the arguments addressed by the Ld APP for the state and by the Legal Aid Counsel for the accused. I have gone through the documents on record carefully.
12.Before recording the findings of the court, let us discuss the relevant State v. Papinder U/s 53/116 DP Act DD No. 27/10 , PS HNDIN 5 provisions of law for the purpose of this case. Section 53 DP Act 1978 provides for procedure on failure of a person to leave the area and his entry therein after removal. It says that if a person to whom the direction has been issued under Section 46, Section 47 or Section 48 of DP Act from the police or any party thereof and he -
a) fails to remove himself as directed; or
b) having so removed himself enters Delhi or any part thereof within the period specified in the order; otherwise than with the permission in writing of the Commissioner of Police under Section 54, the Commissioner of Police may cause him to be arrested and removed in police custody to such place outside Delhi or any part thereof.
13.Further Section 116 DP Act provides the penalty for entry without permission in the area from which such a person was directed to remove himself, or overstaying when permitted to return temporarily. If the person in contravention of direction issued to him under Section 46, 47 or 48 enters or return without permission to Delhi or from the part he was directed to removed himself from shall be convicted for punishment not State v. Papinder U/s 53/116 DP Act DD No. 27/10 , PS HNDIN 6 less than six months extendable up to two years and also fine.
14.In the case at hand, the accused was directed by the Assistant Police Commissioner under Section 47 of the DP Act to remove himself beyond the limits of NCT of Delhi for a period of six months starting from 17.09.2009. However, the accused was found roaming around the Birbal park in Delhi on 13.03.2010. He was directed to remove himself from that area but he failed to do so and hence he was charged for the offence punishable under Section 53/116 DP Act.
15.From the overall testimony of the witnesses, it is seen that the IO has not joined any public witness. Infact, not even an effort was made to join the public witnesses. Admittedly, at the time and place from where the accused was apprehended and when the formalities were being completed, public persons were present. All the witnesses examined are police witnesses. This casts doubt about the sincere efforts made by the IO to join independent witnesses.
16.In Roop Chand v. State of Haryana reported in 1990(1) CLR 69, it was observed that such explanations that the public persons refused to join the proceedings are unreliable. In case of Pradeep Narayana V. State of State v. Papinder U/s 53/116 DP Act DD No. 27/10 , PS HNDIN 7 Maharashtra reported AIR 1995 Supreme Court 1930, it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused. The Section 100(4) CrPC provided that " before making a search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issued an order in writing to them or any of them so to do" . The IO have failed to note down the particulars of the person who refused to join the investigation and this creates doubt regarding the fairness of the investigation.
17. However, in the statement of accused under Section 313 Cr.P.C, he himself has stated that he was arrested from his home. Admittedly, the house of accused is within the territorial jurisdiction of Delhi. Hence it is clear that despite directions of the Assistant Police Commissioner dated 17.09.2009, the accused remained in his house in Delhi only. As such, he State v. Papinder U/s 53/116 DP Act DD No. 27/10 , PS HNDIN 8 committed an offence punishable under Section 53/116 DP Act.
18.I am of the opinion that prosecution has proved the guilt of the accused beyond reasonable doubt that he was roaming in the area of Delhi despite the order of Assistant Commissioner of Police. Accordingly, the accused is held guilty and convicted on charge u/s U/s 53/116 DP Act in the present matter.
19.List for argument on sentence at 2.00 pm today itself.
Announced in the open court (SAUMYA CHAUHAN)
on 03.10.2012 METROPOLITAN MAGISTRATE
SOUTH EAST, SAKET COURTS, NEW DELHI
State v. Papinder U/s 53/116 DP Act
DD No. 27/10 , PS HNDIN