Delhi District Court
Nitin @ Bagga vs The State (Govt. Of Nct Of Delhi) on 27 October, 2022
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
Criminal Revision No. 586/2022
CNR No.: DLCT01-014616-2022
Nitin @ Bagga
S/o Sh. Kale Ram
R/o 2287, Bagichi Raghunath
Sadar Bazar, Delhi-110006
..... Petitioner
VERSUS
The State (Govt. of NCT of Delhi)
..... Respondent
Date of Institution : 19.10.2022
Date of Arguments : 27.10.2022
Date of Judgment : 27.10.2022
JUDGMENT
1. The criminal revision petition under Section 397 of 'The Code of Criminal Procedure, 1973' (Hereinafter referred to as 'Cr.P.C.') is directed against judgment dated 08.09.2022 and order on sentence dated 08.09.2022 in Criminal Case No. 10/2022 titled as 'State vs. Nitin @ Bagga' arising from Kalandra vide DD No. 50A dated 29.03.2022 under Section 53/116 of 'Delhi Police Act, 1978' (In short 'DP Act') PS Sadar Bazar whereby Ld. MM-06 (Central), Tis Hazari Courts, Delhi (In short 'the trial Court') convicted the petitioner for committing offence punishable under Section 116 DP Act and sentenced him to simple imprisonment for a period of 3 months.
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2. The case of the prosecution is that on 29.03.2022 at about 12.00 noon, PW-1 SI Rajender Kumar with PW-2 HC Anuj apprehended the petitioner from his house i.e. H. No. 2287, Bagichi Raghunath, Sadar Bazar, Delhi-110006 vide DD No. 50A, within jurisdiction of PS Sadar Bazar, for breach of externment order dated 08.09.2021 issued by Addl. DCP, North District, Delhi under Section 47 DP Act directing him to remove himself beyond the limits of NCT of Delhi for a period of two years.
3. After taking cognizance of offence under Section 116 DP Act, the trial Court explained substance of accusations to the petitioner to which he pleaded not guilty and claimed trial.
4. During trial, the prosecution examined two witnesses, namely PW-1 SI Rajender Kumar and PW-2 HC Anuj.
5. The petitioner admitted externment order dated 08.09.2021 Ex.PW1/A and DD No. 50A dated 29.03.2022 lodged at PS Sadar Bazar Ex.PW1/D under Section 294 Cr.P.C.
6. The trial Court explained incriminating circumstances appearing in evidence against the petitioner. The petitioner pleaded innocence and claimed false implication.
7. The trial Court, vide impugned judgment, convicted the petitioner for offence under Section 116 DP Act and sentenced him to simple imprisonment for a period of 3 months.
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8. Feeling aggrieved, the petitioner filed the criminal revision petition.
9. I have heard Mr. Sunil Tiwari, Advocate for the petitioner and Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent and perused the trial Court record.
10. Ld. Counsel for the petitioner contended that the trial Court passed the impugned judgment of conviction and order on sentence mechanically without considering facts and circumstances and law. He contended that the trial Court did not consider that there is no evidence that the petitioner was served with externment order. He contended that the petitioner had no knowledge of externment order. He contended that there is no public witness to prove apprehension of the petitioner from his house. He contended that house of the petitioner is in a thickly populated area and Investigating Officer did not join any public witness. He contended that the petitioner belongs to a weaker section of the society and the impugned sentence is harsh and excessive. He contended that the petitioner can be released on probation.
11. Ld. Addl. PP for the State contended that there is no legal infirmity, illegality or perversity in the impugned judgment for conviction and order on sentence. He contended that the petitioner was directed to remove himself beyond the limits of NCT of Delhi vide externment order dated 08.09.2021. He contended that the petitioner was apprehended from his house for breach of externment order.
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12. The relevant part of the impugned judgment is as under:
"15. In the case at hand, the accused was directed by the Additional DCP under section 47 of the DP Act to remove himself beyond the limits of NCT of Delhi for a period of two years starting from 08.09.2021. The apprehension of the accused thereafter on 29.03.2022 i.e., within the period of 2 years from 08.09.2021 proves that the accused has violated the order of externment. The apprehension of the accused in violation of the externment order issued against him by the Additional DCP thus leaves no doubt in the case of the prosecution. The accused has failed to impeach the credibility of the testimonies of the prosecution witnesses and no explanation could be given by the accused for violation of the externment order and his presence within the limits of NCT of Delhi.
16. In light of the discussion made above, this Court has no hesitation in hereby arriving at the finding that the prosecution has proved its case beyond reasonable doubts and hence, the accused stands convicted for the offence u/s 53/116 DP Act."
13. PW-1 SI Rajender Kumar is a material witness. He received secret information regarding presence of the petitioner in his house in breach of externment order dated 08.09.2021. He alongwith PW-2 HC Anuj apprehended the petitioner from his house on 29.03.2022 at 12.00 noon. He proved externment order Ex.PW1/A. He proved arrest memo Ex.PW1/B and personal search memo Ex.PW1/C. He lodged DD No. 50A Ex.PW1/D regarding arrest of the petitioner.
14. PW-2 HC Anuj is also a material witness. He was accompanying PW-1 SI Rajender Kumar. He also deposed to the same effect.
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15. Section 116 DP Act is as under:
"116. Penalty for entering without permission area from which a person is directed to remove himself or overstaying when permitted to return temporarily.-Without prejudice to the power to arrest and remove a person in the circumstances, and in the manner provided in section 53, any person who-
(a) in contravention of a direction issued to him under section 46, section 47 or section 48 enters or returns without permission to Delhi, or any part thereof, as the case may be, from which he was directed to remove himself; or
(b) enters or returns to Delhi or any part thereof with permission granted under sub-section (1) of section 54, but fails, contrary to the provisions thereof, to remove himself outside such area at the expiry of the temporary period for which he was permitted to enter or return or on the earlier revocation of such permission or having removed himself at the expiry of such temporary period or on, revocation of the permission, enters or returns thereafter, without fresh permission, shall, on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."
16. On perusal of Section 116 DP Act, it is evident that it provides punishment for entering without permission area from which a person is directed to remove himself or for overstaying, if permitted. The said section provides punishment for contravention of a direction issued to a person, inter alia, under Section 47 DP Act.
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17. Section 47 DP Act is as under:
"47. Removal of persons about to commit offences.-Whenever it appears to the Commissioner of Police-
(a) that the movements or acts of any person are causing or are calculated to cause alarm, danger or harm to person or property; or
(b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, Chapter XVI, Chapter XVII or Chapter XXII of the Indian Penal Code (45 of 1860) or under section 290 or sections 489A to 489E (both inclusive) of that Code or in the abetment of any such offence; or
(c) that such person-
(i) is so desperate and dangerous as to render his being at large in Delhi or in any part thereof hazardous to the community; or
(ii) has been found habitually intimidating other persons by acts of violence or by show of force; or
(iii) habitually commits affray or breach of peace of riot, or habitually makes forcible collection of subscription or threatens people for illegal pecuniary gain for himself or for others; or
(iv) has been habitually passing indecent remarks on women and girls, or teasing them by overtures, and that in the opinion of the Commissioner of Police witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, the Commissioner of Police may, by order in writing duly served on such person, or by beat of drum or otherwise as he thinks fit, direct such person to so conduct himself as shall seem necessary in order to prevent violence and alarm or to remove himself outside Delhi or any part thereof, by such route and within such time as the Commissioner of Police may specify and not to enter or return to Crl. Rev. No. 586/2022 Nitin @ Bagga vs. State Page No. 6 of 9 Delhi or part thereof, as the case may be, from which he was directed to remove himself."
18. Section 47 DP Act confers jurisdiction upon the Commissioner of Police to remove certain categories of persons, against whom public persons are not coming forward to give evidence apprehending threat to their safety and security, from the limits of NCT of Delhi by a written order duly served on such person, or by beat of drum or otherwise.
19. On perusal of evidence on record, it is evident that there is no evidence that the petitioner was served with externment order. There is no evidence that the said externment order was publically announced by beat of drums in the area of the petitioner. There is no evidence that the said externment order was sent to the petitioner through post or courier.
20. In the absence of proof of service of externment order upon the petitioner, as provided under Section 47 DP Act, it cannot be said that the petitioner committed an offence under Section 116 DP Act by not removing himself from the limits of NCT of Delhi.
21. There is a patent jurisdictional error in judgment of the trial Court, if not corrected, it would occasion miscarriage of justice.
22. Accordingly, the criminal revision petition filed by the petitioner is allowed.
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23. Therefore, the judgment of the trial Court convicting the petitioner for commission of an offence under Section 116 DP Act and consequent, order on sentence are also set-aside.
24. The petitioner is acquitted from offence under Section 116 DP Act.
25. A copy of order be sent to concerned Jail Superintendent with the direction to release the petitioner forthwith, if he is not required to be detained in any other case.
26. A copy of judgment alongwith TCR be sent to the trial Court.
27. The criminal revision file be consigned to record room.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date:
2022.10.27
15:37:31 +0530
Announced in the open Court SANJAY SHARMA-II
on this 27th October, 2022 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
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Nitin @ Bagga vs. State
CNR No.: DLCT010146162022
Crl. Revision No. 586/2022
27.10.2022
Present : Mr. Sunil Tiwari, Advocate for the petitioner.
Mr. Amit Dabas, Ld. Addl. PP for the State / the respondent.
The petitioner is produced from JC.
The Court has heard arguments. Vide separate judgment, the criminal revision petition filed by the petitioner is allowed. The criminal revision file be consigned to record Digitally signed room. by SANJAY SANJAY SHARMA SHARMA Date:
2022.10.27 15:37:50 +0530 Sanjay SharmaII ASJ03, Central District, Tis Hazari Courts, Delhi NK 27.10.2022 Crl. Rev. No. 586/2022 Nitin @ Bagga vs. State Page No. 9 of 9