Delhi District Court
State vs . Faizan on 3 September, 2022
IN THE COURT OF SH. SNEHIL SHARMA, METROPOLITAN
MAGISTRATE-08, SOUTH EAST DISTRICT, SAKET
COURTS, SAKET, NEW DELHI
JUDGMENT
STATE VS. Faizan
FIR NO: 217 /2021
P. S. Jamia Nagar
U/s 188 IPC
a Sl. No. of the case : 4793/2022
b Date of commission : 21.05.2021
c Date of institution of the case : 21.05.2022
d Name of the complainant : Ashok Kumar
E Name of the accused and his : Mohd. Faizan, S/o Mohd. Yusuf,
parentage R/o O5/A, second floor, Batla
House, Jamia Nagar, New Delhi.
f Offence complained of : 188 IPC
g Plea of accused : Not guilty
h Orders reserved on : 26.08.2022
i Final order : Accused is convicted for the
offence punishable u/s 188 IPC
j Date of judgment : 03.09.2022
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. As per the case of the prosecution that on 21.05.2021, at about 06.00 pm, at Kabristan Chowk, Jamia Nagar, New Delhi, within the jurisdiction of P.S. Jamia Nagar, accused was found to be wandering without mask and thus violated the prohibitory FIR No. 217/2021 PS Jamia Nagar PAGE 1 OF PAGE 7 orders u/s 144 Cr.P.C. vide notification order no. F/2/07/2020/Pt File-III/423 dated 16.05.2021 and 2081- 2120/SO/ACP/NFC dated 17.05.2021 and thereby committed an offence punishable U/s 188 IPC. On the said complaint, FIR was registered and investigation was carried out. After completion of the investigation, chargesheet was filed against the accused Faizan.
2. Notice in respect of the offence punishable under Section 188 IPC was served upon the accused, who pleaded not guilty and claimed trial.
3. The prosecution in all examined 2 witnesses. PW1/Ct.
Dinesh Kumar, deposed that on 21.05.2021, PW1 was posted as Constable at PS Jamia Nagar. On that day, PW1 joined the investigation in the present case. PW1 along with HC Ashok Kumar were present at beat area. When they reached near Kabristan Chowk they found that one person was wandering without wearing the mask which was against the prohibitory order issued by ACP, NFC. The said person disclosed his name as Faizan. They asked him why he was not wearing the mask, accused Faizan informed them that he had forgotten the mask at his house. Thereafter, IO/HC Ashok Kumar prepared the rukka and sent PW1 to the PS for the purpose of registration of FIR. PW1 went to the PS, got registered the FIR, after registration of the FIR, PW1 returned to the spot and handed over the copy of FIR and original rukka to IO/HC Ashok FIR No. 217/2021 PS Jamia Nagar PAGE 2 OF PAGE 7 Kumar. Thereafter, IO arrested the accused, the arrest vide memo Ex. PW1/A and IO prepared the site plan Ex. PW1/B. Thereafter, the accused was released on personal bond by the IO. IO recorded statement of PW1 at PS. PW1 correctly identified the accused before the court.
4. PW2/ ASI Ashok Kumar that on dated 21.05.2021, he was posted as Head Constable at PS Jamia Nagar. On that day, PW2 along with Ct. Dinesh were on patrolling duty in the area of PS Jamia Nagar. PW2 along with Ct. Dinesh were present at beat area. When they reached near Kabristan Chowk they found that one person was wandering without wearing the mask which was against the prohibitory order issued by ACP, NFC. The said person disclosed his name as Faizan. They asked him why he was not wearing the mask, accused Faizan informed us that he had forgotten the mask at his house. Thereafter, he prepared the rukka and handed over the same to Ct. Dinesh and sent him to the PS for the purpose of registration of FIR. After registration of the FIR, Ct. Dinesh returned to the spot and handed over the copy of FIR and original rukka to him. PW2 arrested the accused vide memo Ex. PW1/A bearing signature of PW2 at point B and prepared the site plan Ex. PW1/B bearing signature of PW2 at point A. Thereafter, PW2 released the accused on personal bond. PW2 obtained the standing order dated 17.05.2021 from the concerned authority Ex. PW2/A. PW2 recorded the statement of witnesses and prepared the challan. The accused Faizan was correctly FIR No. 217/2021 PS Jamia Nagar PAGE 3 OF PAGE 7 identified by PW2.
5. In his statement recorded under Section 313 Cr.P.C., the accused has denied the entire incriminating evidence put to him. He said that he has been falsely implicated and he was wearing mask at that time, but, it got slipped and was lying on his mouth, but, not on his nose. He further stated that he is innocent and has not committed any offence. He stated that he has been falsely implicated in the present case.
6. It has been argued by Ld. APP for the State that case of the prosecution has been fully proved as all the evidences are in line with the prosecution story. On the other hand, Ld. Counsel for accused has argued that accused is innocent and he has been falsely implicated in the present case and that there is contradiction in the testimony of prosecution witnesses.
7. I have heard Ld. APP for the State and Ld. Defence counsel for accused and considered the respective arguments as well as gone through case file very carefully.
8. In order to prove its case, prosecution needs to prove following:
1. There must be an order promulgated by a public servant ;
2. Public servant must have been lawfully empowered to promulgate such an order ;
3. A person must know the order and disobey it ;
4. Such disobedience must likely to cause or tends to cause danger to human life.
9. As per the fact, the period which is mentioned for the offence FIR No. 217/2021 PS Jamia Nagar PAGE 4 OF PAGE 7 is very well within the period of COVID 19 spread wold wide, which was a pandemic on human life and vast measurement and steps were being taken to contain the spread of corona virus to save the life. Except the necessary institutes, all the activities in the nation were stopped. Here perusal of the file shows that violated the prohibitory orders u/s 144 Cr.P.C. vide notification order no. F/2/07/2020/Pt File-III/423 dated 16.05.2021 and 2081-2120/SO/ACP/NFC dated 17.05.2021 is made part of the charge-sheet which says that curfew on movement is imposed from 05 am on 17.05.2021 to 5 am till 24.05.2021 but no mention of mask but court take notice of certain facts to be true without either party requiring to produce evidence for their support and pandemic Covid 19 is one of the fact. Hence, proving these facts is a waste of time & effort.
10. Therefore, order of ACP was widely known fact that mask was compulsory / mandatory to save oneself from corona virus and ACP being public servant was lawfully empowered.
11. Further, from the testimony of PW1 and PW2, we found that accused was correctly identified by them. When asked by PW1 and PW2, accused submitted that he was wearing mask at that time, but, it got slipped and was lying on his mouth, but, not on his nose. It is also admitted by prosecution witnesses that there were several people who were wearing mask except the accused Faizan. PW2 also corroborated the statement of PW1 on the point that when accused was stopped, he was not wearing mask.
FIR No. 217/2021PS Jamia Nagar PAGE 5 OF PAGE 7
12. Perusal of the case file also shows that accused in his statement recorded u/s 313 Cr.P.C. admits that he was having a mask but same was not on his nose. It pertinent to note here that when the whole world was suffering from pandemic and resulted in loss of many human life and guideline were issued by various government agencies to avoid spread of pandemic, accused was having knowledge of corona virus but found without wearing mask. This reason is not sufficient to allow accused to be part of spreader of pandemic.
13. Further PW1 and PW 2 both submit that public witnesses were not made the part of the present case though they were present. Testimony of police witness can not be doubted in absence of non joining of public witness. Moreover, with respect to public person not cited as witness, this court found no reason to show why police officer would falsely implicate the accused. As held in Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291, the presumption that a person acts honestly applies as much in favor of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. There is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon.
14. Thus from the fact, it is found that deposition made by PW1 and PW2 remained unchallenged and unrebutted. Nothing contrary or discrepancies came on record which could benefit FIR No. 217/2021 PS Jamia Nagar PAGE 6 OF PAGE 7 the accused. Neither accused could justify his reason for not wearing the mask nor any medical documents is brought as defence nor any other witness is brought to contradict the testimony of the PWs, who can suggest the accused action justified. Hence, it is clear that accused not only disobeyed the order issued by ACP but may also spread the corona virus or may get corona virus from others. Here after appreciation of the evidences, this court finds that both the police officers are not only the investigating officer but also the star witness of the fact that accused was wandering without the mask. Hence, PW2 is found wholly reliable.
15. In a well-balanced, well-analysed, well-articulated, well-reasoned and well-framed judgment titled Amar Singh vs The State (NCT Of Delhi) in Criminal Appeal No. 335 of 2015, delivered as recently as on October 12, 2020, the Supreme Court has laid down in no uncertain terms that conviction can be based on the testimony of a single eye witness so long he is found to be wholly reliable.
16. Thus, in view of the above, accused Faizan is convicted u/s. 188 IPC.
17. Let the convict Faizan be heard on the point of sentence.
Copy of this judgment is given to convict Faizan.
Announced in the open court (Snehil Sharma) on 03.08.2022 Metropolitan Magistrate-08, South East, Saket, New Delhi.
FIR No. 217/2021PS Jamia Nagar PAGE 7 OF PAGE 7