Delhi District Court
State vs . Mohd. Kadim Qureshi on 6 August, 2022
IN THE COURT OF SH. SNEHIL SHARMA,
METROPOLITAN MAGISTRATE-08, SOUTH EAST
DISTRICT, SAKET COURTS, SAKET, NEW DELHI
JUDGMENT
STATE VS. Mohd. Kadim Qureshi FIR NO: 145/2021 P. S. Jamia Nagar U/s 188 IPC a Sl. No. of the case : 7612/2021 b Date of commission : 09.04.2021
c Date of institution of the case : 21.10.2021
d Name of the complainant : Vikash Kumar
E Name of the accused and his : Mohd. Kadim Qureshi, S/o Sh.
parentage Mohd. Idrish Qureshi, R/o D-
103,Abul Fazal-2, Shaheen Bagh,
South-East, Delhi.
f Offence complained of : 188 IPC
g Plea of accused : Not guilty
h Orders reserved on : Not reserved.
i Final order : Accused is convicted for the
offence punishable u/s 188 IPC
j Date of judgment : 06.08.2022
BRIEF STATEMENT OF REASONS FOR THE DECISION FIR No. 145/2021 PS Jamia Nagar PAGE 1 OF PAGE 10
1. As per the case of the prosecution that on 09.04.2021, at about 10.25 pm, at Okhla Head, Jamia Nagar, New Delhi, within the jurisdiction of P.S. Jamia Nagar, accused was found found wandering without mask and thus violated the prohibitory orders u/s 144 Cr.P.C. vide notification no. 1750- 1789/SO/ACP/New Friends Colony, New Delhi, dated 06.04.2021 in violation of the prohibition order issued by ACP and thereby committed an offence punishable U/s 188 IPC and within my cognizance. On the said complaint, FIR was registered and investigation was carried out. After completion of the investigation, chargesheet was filed against the accused Mohd. Kadim Qureshi.
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/HC Vikas Kumar deposed that he was posted at PS Jamia Nagar as HC. On 09.04.2021, he alongwith Ct. Rajesh were on patrolling duty in the area of Okhla Head. During patrolling duty, he found that one person was coming from the side of Shaheen Bagh and was going towards Batla House without mask. PW1/HC Vikas Kumar asked him about the mask for which he said that he had forgotten the mask in his house. He informed FIR No. 145/2021 PS Jamia Nagar PAGE 2 OF PAGE 10 accused about the order regarding mask and curfew. Thereafter, PW1 prepared rukka/tehrir vide memo Ex.PW1/A and handed over the same to Ct. Rajesh and sent him to PS for registration of FIR. After registration of FIR, Rajesh returned to the spot and handed over the copy of FIR and original rukka to him. PW1 prepared the site plan vide memo Ex. PW1/B. PW1 arrested the accused vide memo Ex.PW1/C. PW1 recorded statement of Ct. Rajesh and prepared the challan. PW1 correctly identified the accused before the court.
4. PW-2/HC Rajesh Kumar deposed that on 09.04.2021, PW2 was posted at PS Jamia Nagar as Constable. On that day, he along with HC Vikas Kumar were on patrolling duty in the area of Okhla Head. During patrolling duty, they found that one person was coming from the side of Nayi Basti and was going towards Batla House without mask. HC Vikas Kumar asked him about the mask for which he said that he had forgotten the mask in his house. HC Vikas Kumar informed him about the order regarding mask and curfew. Thereafter, HC Vikas Kumar prepared rukka/tehrir vide memo Ex.PW1/A and handed over the same to PW2 and sent him to PS for registration of FIR. After registration of FIR, PW2 returned to the spot and handed over the copy of FIR and original rukka to HC Vikas Kumar(PW1). IO/HC Vikas Kumar prepared the site plan vide memo Ex. PW1/B. IO arrested the accused vide memo Ex.PW1/C. IO recorded his statement. PW2 correctly identified FIR No. 145/2021 PS Jamia Nagar PAGE 3 OF PAGE 10 the accused before the court.
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 in this case and he was going alone to deliver vegetables to Okhla Mandi Market and therefore, IO asked his presence at the place and in this regard and accused argued with the IO. Accused said that he was having the mask and was wearing the same. 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 ;FIR No. 145/2021
PS Jamia Nagar PAGE 4 OF PAGE 10
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 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 order of ACP i.e. order no. 1750-1789/SO/ACP New Friends Colony, dated 06.04.2021 is not made part of the charge-sheet but court can take notice of certain facts to be true without either party requiring to produce evidence for their support. The section 57 of the Indian Evidence Act says that the Court must take judicial notice of the facts given under this section. The section further prescribes that the judge is also expected to have knowledge regarding matters of public history, literature, art or science. The judge may refer to books and documents. It is clear upon reading Section 57 that the Court has no other option but is obligated to take judicial notice of facts mentioned in the Section as it uses the word "shall" and not "may". Apart from the list of facts mentioned in the provision, the Court may take judicial notice of the passing FIR No. 145/2021 PS Jamia Nagar PAGE 5 OF PAGE 10 away of eminent personalities, date, and result of election polls or an event so famous that the whole nation is aware of it. These judicial noticeable facts are widely known by every person and everyone knows them to be true, hence, proving these facts is a waste of time and effort.
10. Relevant facts that are admitted under judicial notice are accepted by the Court even without producing a witness. This rule is often used for the simplest and obvious facts that are considered to be common sense and need not be proved. The same was held by the Hon. Supreme Court in Onkar Nath & ors v. The Delhi Administration (1977 AIR 1108) that "Recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowledge. Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present." Therefore, even if order of ACP was not made part of the case file till it was a widely known fact that mask is compulsory/mandatory to save oneself from corona virus and hence, this court takes judicial notice of this fact.
FIR No. 145/2021PS Jamia Nagar PAGE 6 OF PAGE 10
11. Perusal of the case file also shows that accused in his statement recorded u/s 313 Cr.P.C. admits that he was found at the spot though he submits that he was wearing the mask and was going to deliver vegetable to Okhla Mandi Market but nothing is produced by the accused with respect to the same that he has purchased the vegetable from one person and was selling/ delivering to Okhla Mandi. Statement u/s 161 Cr.P.C. of both the witnesses shows that accused was wandering without mask and on asking accused submits that he came here to meet the friend and has forgotten the mask at home. He said that he has been falsely implicated in this case and he was going alone to deliver vegetables to Okhla Mandi Market and therefore, IO asked his presence at the place and in this regard and he argued with the IO. It is not a case of IO that accused was arguing with him if it was the situation, IO may also lodged the FIR against the accused in the relevant section for preventing the police official to discharge his duty.
12. He did not brought any defence evidence or any documentary evidence to show that he was having movement pass during corona. 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 FIR No. 145/2021 PS Jamia Nagar PAGE 7 OF PAGE 10 mask. This reason is not sufficient to allow accused to be part of spreader of pandemic.
13. 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 had forgotten the mask at home. It was night time and night curfew was imposed and hence it is expected that there were no public persons. Also accused's reason to appear before the court rather than paying the challan on the spot, is not brought on record during trial by the accused.
14. 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.
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15. 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 the accused. Neither accused could justify his reason for not wearing the mask nor any medical documents is brought as defence nor movement pass is shown 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, PW1 is found wholly reliable.
16. 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.
17. Thus, in view of the above, accused Mohd. Kadim FIR No. 145/2021 PS Jamia Nagar PAGE 9 OF PAGE 10 Qureshi is convicted u/s. 188 IPC.
18. Let the convict Mohd. Kadim Qureshi be heard on the point of sentence.
Announced in the open court (Snehil Sharma) on 06.08.2022 Metropolitan Magistrate-08, South East, Saket, New Delhi.
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