Delhi District Court
State vs Ashok Tokas on 20 March, 2024
IN THE COURT OF MS. SAMIKSHA GUPTA
Addl. Chief Metropolitan Magistrate
South West District; Dwarka Courts: New Delhi
Date of Institution : 28.04.2022
Date of reserving judgment : 19.03.2024
Date of Judgment : 20.03.2024
In the matter of :
State Vs. Ashok Tokas
FIR No.468/2021
PS : Sector-23 Dwarka
U/s: 188 IPC & 14C Foreigners Act
1. Registration. No. of Case : 5436/2022
2. CNR No. of Case : DLSW02-018426-2022
3. Name of complainant : SI Balu Ram
4. Name of accused : Ashok Tokas
S/o Late Sh. Ajeet Singh
R/o House No. 96,
Near Chillar House,
Amberhai village, Sector 19,
Dwarka, New Delhi.
5. Offence charged under : 188 IPC & 14C Foreigners Act
Section
6. Plea of accused : Not guilty
State Vs. Ashok Tokas
FIR No. 468/2021; PS Sector 23 Dwarka
Page No.1 of 11
7. Final Order : Acquitted.
State represented by : Sh. Rohit Grewal, APP for State.
Accused represented by : Sh. Nagender Deshwal, Advocate.
JUDGMENT
1. It is the case of prosecution that accused Ashok Tokas was the owner of house No. 96, Near Chillar House, Amberhai village, Dwarka, New Delhi. He had not got done the police verification of his tenant namely Amaechi Charlie, a Nigerian national, which was in contravention of order No. 11407-496R- ACP/Dwarka dated 05.11.2021. Thus, prosecution has set up a case u/s 188 IPC against accused. Further, his tenant was arrested in FIR No. 467/21 PS Sector 23 Dwarka, for staying in India without any valid passport and visa. Thus, Section 14C Foreigners Act was also invoked against accused.
2. On the basis of investigation carried out by police, charge sheet was filed and copy of the same was supplied to accused. On the basis of charge sheet, notice for committing offence punishable under Section 188 IPC and 14C Foreigners Act was served upon accused to which he pleaded not guilty and claimed trial.
State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.2 of 11
3. In order to prove its case, the prosecution has examined one witness, who is as under:
Sr. No Name of Prosecution Nature of Evidence Witness
1. PW-1/SI Balu Ram Complainant/IO.
Prosecution has relied upon the following documents:
S. No. Exhibits Documents 1. PW 1/A Tehrir 2. PW 1/B Site plan 3. PW 1/C Notice under Section 14A Cr.PC to the accused 4. Mark X1 Copy of FIR 5. A-1 Copy of FIR without contents 6. A-2 Certificate U/s 65 B of Indian Evidence Act 7. A-3 Complaint under Section 195 Cr.PC 8. Mark X2 Permission under Section 195 Cr.PC
4. Statement of accused under Section 313 Cr.PC was recorded wherein he stated that he was falsely implicated. He also stated that he did not induct Amaechi Charlie as tenant in the aforesaid house on 18.11.2021 or at any point of time. Accused did not lead evidence in defence.
5. Arguments heard. Record perused.
State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.3 of 11
6. The evidence of prosecution witness is discussed hereunder:
(i) PW-1 SI Balu Ram has deposed that on 18.11.2021, information was received from ASI Chitter Singh that he had arrested one foreigner in FIR No. 467/21, under Section 14 of Foreigners Act. ASI Chitter Singh also informed that the landlord Ashok Tokas / accused did not conduct tenant verification of the tenant. Accordingly, this witness prepared tehrir and got the FIR registered. Site plan was prepared. Further investigation was conducted. After obtaining permission under Section 195 Cr.PC, charge sheet was filed. He correctly identified the accused present in Court.
During cross-examination, he admitted that statement of ASI Chitter Singh was not recorded and copy of FIR No. 467/21 was not filed with the charge sheet. Further, certificate under Section 65 B of Indian Evidence Act Ex.A2 is undated. He admitted that site plan is not signed by any other witness. He could not recall the date when permission under Section 195 Cr.PC was obtained and admitted that no date is mentioned on the same. He did not enquire from any neighbour residing in the premises in question or adjacent to the property. Rent agreement was not provided by accused. Notice under Section 91 Cr.PC was not served upon accused to provide rent agreement. He denied the suggestion that order of ACP dated 05.11.2021 was never State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.4 of 11 circulated in the locality where property in question was situated. He admitted that no photograph showing affixation of the order of ACP has been placed on record. He denied the suggestion that accused has been falsely implicated.
7. Charge under Section 188 IPC
(i) The entire case of the prosecution is based on the allegation that the accused had violated Notification/order No. 11407-496R-ACP/Dwarka dated 05.11.2021 issued by ACP Dwarka since he had failed to submit the tenant verification form of his tenant to the SHO concerned.
The relevant portion of the aforesaid order of the ACP, Sub- division, Dwarka, Delhi reads as under:
"2. ... I, Sunil Kumar Singh, Assistant Commissioner of Police, Sub-Division Dwarka District, Dwarka, Delhi, do hereby order that no landlord/owner/person of any house/property which falls under the jurisdiction of area of Police Stations as specified above, shall let/sublet/rent out any accommodation to any person unless and until he has furnished the particulars the particulars of the tenant(s) in a specified Performa to the Station House Officer of the Police Station concerned i.e. PS Dwarka Sector 23, Dwarka North, Dwarka South under Sub Division Dwarka in whose jurisdiction the premises fall.
State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.5 of 11
3. The order shall come into force with effect from 06.11.2021 to 04.01.2022 and shall remain in force for a period of 60 days (both days inclusive) unless withdrawn earlier."
(ii) A bare perusal of the aforesaid order of ACP concerned reveals that the same had prohibited the owner/landlord of a property from letting/sub-letting/renting out any accommodation to any person until he had furnished the particulars of the tenant in the specified proforma to the Station House Officer of the police station concerned. The language of the said order clearly indicates that the same is prospective in nature and prohibited induction of fresh tenants into any property within the area in question without furnishing of particulars of the tenants to the SHO concerned. The said order did not require owners/landlords, in respect of premises which were already in occupation of tenants/had already been let out prior to the date of the said order, to furnish particulars of the tenants to the SHO concerned.
(iii) In the instant case, as per the contents of FIR, the tenant Amaechi Charlie had informed the IO that he was residing as tenant in the property in question owned by accused. No investigation has been conducted by the IO about the date when the said tenant was given the premises in question on rent. It is not State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.6 of 11 clear from the investigation of IO whether the tenancy in respect of the premises in question was an old one or a newly created tenancy contracted during the period in which the order Mark X-1 remained in force.
(iv) Even otherwise, in order to convict any person for commission of offence punishable under Section 188 IPC, the court has to satisfy itself that the accused had not only violated the order promulgated by a public servant but also that the accused had actual knowledge of issuance of such order.
The Hon'ble High Court of Delhi in Bhoop Singh Tyagi v. State, 97 (2002) DLT 374, held that a person booked under Section 188 IPC must have actual knowledge of public servant's order requiring him to do or abstain from doing some act. It was further held that acquiring or gaining of such knowledge is a pre- requisite and any proof of general notification promulgated by a public servant would not satisfy the requirement.
The order No. 11407-496R-ACP/Dwarka dated 05.11.2021 issued by ACP Dwarka itself provides for its publication in the following terms:
"5. As the notice cannot be served individually on all concerned the order is passed ex-parte. It shall be published for the information of the public through the press and by affixing copies on the notice boards of the offices of all the State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.7 of 11 DCPs, Addl. DCPs, ACPs, Tehsil offices of the Districts, all police stations concerned and the offices of the NDMC and MCD."
(v) In the present case, in the FIR, it is not mentioned that accused had knowledge of order promulgated by the ACP concerned and he knowingly disobeyed the same. All that is stated in the FIR is that the accused had not got tenant verification conducted. It is nowhere the case of prosecution that the accused had violated the aforesaid order regarding tenant verification despite having knowledge that he was required to furnish particulars of his tenant to the police by the said notification/order. During cross-examination by accused, IO has admitted that no photograph regarding affixation of order Mark X-1 in the locality of accused has been placed on record.
(vi) In the entire charge-sheet, it has not even been asserted that the alleged order/notification was published or publicized in the locality where the accused resided. Further, neither in charge-sheet nor during evidence has the prosecution been able to produce any evidence to show that accused had actual knowledge of the aforesaid order promulgated by the ACP concerned. In fact, even in his testimony, the complainant/investigating officer PW1 SI Balu Ram has simply stated that the order was circulated but no record to corroborate State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.8 of 11 such assertions has been placed on record.
The prosecution has also failed to produce copy of any newspaper etc. wherein such order may have been published. Prosecution also failed to mention the name of the newspaper and date of publication of notification in question. It has not even produced any photographs of the said order affixed on any notice board of any of the offices mentioned in the order of the ACP. Thus, there is no evidence produced by the prosecution to show that the notification in question was ever published in any newspaper, affixed on notice boards of any of the offices specified in the order. Accordingly, presumption of knowledge of the order dated 05.11.2021 cannot be attributed to the accused. Even otherwise, the star witness of prosecution, the tenant Amaechi Charlie has not been cited as witness. In fact, IO has not bothered to even record his statement. This is relevant as accused has denied any tenancy executed with Amaechi Charlie. Prosecution has not even bothered to collect even the ID proof of the said tenant namely Amaechi Charlie. IO has not placed the rent agreement on record. Hence, the charge under Section 188 IPC cannot be sustained against the accused.
8. Charge under Section 14C Foreigners Act
(i) Charge under Section 14C Foreigners Act has also been framed against the accused. Section 14C Foreigners Act State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.9 of 11 penalizes abetment by any person of offences punishable under Section 14/14A/14B of Foreigners Act. To prove the said offence against the accused, it was incumbent on the prosecution to prove the following:
(i) that tenant Amaechi Charlie had remained in India even after the expiry of his visa;
(ii) that accused was aware of such overstaying of tenant Amaechi Charlie beyond the prescribed duration of visa;
(iii) that accused had instigated or intentionally aided tenant Amaechi Charlie to violate the conditions of his visa and stay beyond the prescribed period; or
(iv) that accused had engaged in a conspiracy with tenant Amaechi Charlie consequent to which the said tenant had stayed in India beyond the prescribed visa duration.
(ii) Perusal of record shows that IO has only stated that tenant Amaechi Charlie was arrested in FIR No. 467/21 under Section 14 Foreigners Act since he was staying in India despite expiry of his visa on 02.08.2014 and expiry of his passport on 12.01.2019. However, IO has not placed the copy of said FIR on record. IO has not bothered to record the statement of concerned IO in FIR No. 467/21 to prove that tenant Amaechi Charlie was in-
fact arrested under Section 14 Foreigners Act. The record regarding involvement of Amaechi Charlie in FIR 467/21 is State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.10 of 11 conspicuous by its absence. In the absence of record regarding Section 14 Foreigners Act, there is nothing on record in the present case to connect the accused with the charge of Section 14C Foreigners Act. This is especially relevant that IO has not even collected the rent agreement allegedly executed between the accused and tenant Amaechi Charlie. There is no material on record to show that accused willingly and knowingly inducted Amaechi Charlie as tenant in his house. In fact, there is no record to show that Amaechi Charlie had ever resided as tenant in the property of accused. In the absence of such record, it cannot be said by any stretch of imagination that accused instigated or helped in any manner tenant Amaechi Charlie to stay in India beyond the prescribed duration of his visa. Thus, charge under Section 14C Foreigners Act cannot be sustained.
9. In view of the above discussion, the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused Ashok Tokas is acquitted of the offence punishable under Section 188 IPC and under Section 14C Digitally signed Foreigners Act. by Samiksha Samiksha Gupta Pronounced in open Court Gupta Date:
2024.03.20 on 20th of March, 2024 15:41:29 -0200 SAMIKSHA GUPTA Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi 20.03.2024 State Vs. Ashok Tokas FIR No. 468/2021; PS Sector 23 Dwarka Page No.11 of 11