Delhi District Court
State vs . Mahesh on 13 April, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-02,
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
PRESIDED BY: SH. VIPUL SANDWAR
JUDGMENT
State Vs. Mahesh FIR NO. : 232/2005, U/s 182/507 IPC PS : NEW USMANPUR A. CIS No. of the Case : 465496/2015 B. FIR No. : 232/2005 C. Date of Institution : 20.02.2006 D. Date of Commission of Offence : 19.07.2005 E. Name of the complainant : SI S. B. Gautam, No. D-3540, Anti Kidnapping Section, Crime Branch Delhi F. Name of the Accused, his : Mahesh S/o Murari Lal, R/o Parentage & Addresses A-32/05, Gali no.1, Gamri Extension, 4 ½ pushta, Delhi.
G. Representation on behalf of : Ms. Shivani Joshi, Ld. APP. State H. Offence complained of : U/s 182/507 IPC I. Plea of the Accused : Pleaded not guilty and claimed trial.
J. Order reserved on : 18.03.2023 K. Date of Order : 13.04.2023 L. Final Order : Acquitted FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.1 of 14
Brief Statement of Reasons for Decision of the Case
1. The present FIR is based on DD No.15A dated 20.07.2005, PS New Usmanpur, regarding a false information recorded in the form of DD No.17A dated 19.07.2005. It was mentioned in DD No.17A that one Rakesh, owner of Sachin Telecom, 4½ pushta, Som Bazar who has links with terrorists is involved in a conspiracy to kill the Prime Minister. On investigation, it was found that Rakesh Kumar is a respectable person and a false information has been given through a PCR call using phone number 22865397 belonging to a STD Anand Communications. On enquiry from one Sahid it was found that accused Mahesh had dialed 100 number from that phone and had given a false information.
2. FIR was registered under section 182/507 IPC and has been investigated by the officials of Police Station New Usmanpur and IO/SI S. B. Gautam filed the charge sheet against the accused upon which cognizance was taken by the learned Predecessor of this Court.
3. Accused appeared before the Court and copy of chargesheet along with other documents under Section 207 Cr.P.C. were supplied to them.
4. Vide order dated 03.12.2010 the accused charge was framed for the offences punishable Under Section 182/507 IPC against accused by the learned Predecessor of this Court, to which, the accused pleaded not guilty and claimed trial.
FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.2 of 14
5. Thereafter, matter was listed for Prosecution Evidence. The Prosecution has examined 05 witnesses in support of its case. In nutshell, the testimony of the prosecution witnesses is as follows :-
(i) PW1 HC Satish has deposed that on 20.07.2005 he joined the investigation with IO/SI Suraj Bhan. IO/SI Suraj Bhan has interrogated accused Mahesh in his presence and recorded his disclosure statement Ex. PW1/A. IO arrested accused Mahesh vide arrest memo Ex. PW1/B and conducted his personal search vide memo Ex. PW1/C. In his cross-examination, he has deposed that the accused was interrogated at about 06:00-06:30 pm. He denied the suggestion that accused was not arrested in his presence.
(ii) PW2 Lalit Anand is the owner of PCO/STD booth at Bhajanpura. He has deposed that in the year 2005 one person by the name of Mahesh had come to his shop alongwith his friend Himanshu. Mahesh entered the cabin and made a call on 100 number. He also made few other calls from the cabin while Himanshu was standing outside. After 15-20 minutes, PCR van came to his booth and he was informed that a 100 number call had been made from his STD booth He then told the police about Himanshu and his place of residence. He took the police officials to the house of Himanshu where he told about accused Mahesh.
The witness correctly identified the accused Mahesh in Court. Despite putting leading questions regarding the date after seeking permission of Court by Ld. APP for the State witness could not remember the date of incident. In his cross-examination, he has stated that he cannot tell as to what was conveyed by the accused on the phone in his cabin. He has also stated that he cannot tell FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.3 of 14 that how many telephone numbers were dialed. He has stated that many callers come to his PCO for making calls and he cannot recognise the faces of all the callers. He has categorically stated that he was not in his PCO at the time when the call was made.
(iii) PW3 Rakesh is the owner of M/s Sachin Telecome Centre situated at 4 ½ pushta. He has deposed that in July 2005 police officials came to his shop and he came to know from them that some body had filed a false complaint against him that he had connections with terrorists. He has deposed that again after 2-3 days somebody made a similar complaint against him from the same telephone number from Bhajanpura. On that day his shop was surrounded by police officials suspecting that he was related with terrorists and was looking for an opportunity to blow the Prime Minister on 15th August. He went to the STD shop Bhajanpura alongwith police officials and was told that one person Himanshu had come with 25-26 years boy who had made the call from the STD using cabin. They traced Himanshu who told that the accused Mahesh had made the bogus call from STD booth at Bhajanpura. He identified accused Mahesh in the Court. In his cross-examination, he has stated that he does not remember the date on which police officials had come to his shop. He has also stated that he has no personal knowledge of the bogus complaint made against him by the accused as informed by the police. He has also stated that accused was not known to him prior to incident.
(iv) PW4 SI S. B. Gautam on receipt of DD no.17A dated 19.07.2005 he alongwith Constable went to the spot i.e. Sachin Telecoms and met Rakesh. He was having information that Rakesh is having links with terrorists and blow the Prime FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.4 of 14 Minister on 15th August. He interrogated Rakesh but no clue was found against him and he kept the investigation pending. On enquiry he found that the call was made from an STD Bhajanpura with telephone number 22865397. He met one Sahil who told that two boys had come to his place, one of who was Himanshu. At the instance of Sahil he interrogated Himanshu and at the instance of Himanshu he arrested accused Mahesh. On enquiry it was revealed to him that call was made by accused Mahesh. He took permission from the Court under section 155 Cr. PC to register the case and thereafter, prepared tehrir. On 21.07.2005 Rakesh produced the accused Mahesh and interrogated Mahesh, recorded his disclosure statement. He arrested the accused, conducted his personal search and got the medical conducted. Thereafter, he was transferred and handed over the file to MHC(R). He recorded statements of Rakesh, Sahil, Lalitanand and Satish Chand. In his cross-examination, he has stated that he is the complainant as well as the initial IO in the present matter. He has also stated that he has not chargesheeted accused Himanshu whom he had named as a co-conspirator in his statement under section 161 Cr. PC. He has stated that he did not collect the voice sample of the alleged call or send any voice sample to FSL. He did not get the TIP of the accused conducted. He denied the suggestion that the call was not made by the accused or that the accused had not visited the STD booth on the day of incident.
(v) PW5 Retd. SI Pritam the present FIR was marked to him on 27.07.2005 for further investigation. He prepared the challan and filed it before the Court. In his cross-examination, he has stated that rukka was prepared by the first IO and he had not visited the FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.5 of 14 spot. He has also conceded to the fact that he did not make any investigation in this case and only prepared formal challan. He has stated that he cannot identify the accused.
6. PE was closed on 04.01.2023 and on 13.01.2023, statement of accused under Section 313 Cr. PC was recorded. The accused persons did not wish to lead any DE and the matter was thereafter, fixed for final arguments.
7. Final arguments heard. Case record perused meticulously.
8. This Court has thoughtfully considered the material on record and arguments advanced with due circumspection.
9. The offence under S. 182 IPC is defined as follows:
"S. 182. False information, with intent to cause public servant to use his lawful power to the injury of another person.--Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant--
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Illustrations
(a) A informs a Magistrate that Z, a police-officer, subordinate to such Magistrate, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.6 of 14 this section.
(b) A falsely informs a public servant that Z has contraband salt in a secret place knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z's premises, attended with annoyance to Z. A has committed the offence defined in this section.
(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assistants, but knows it to be likely that in consequence of this information the police will make enquiries and institute searches in the village to the annoyance of the villages or some of them. A has committed an offence under this section."
10. In State of Punjab v. Brij Lal Palta, (1969) 1 SCR 853 :
AIR 1969 SC 355 : 1969 Cri LJ 645, Supreme Court has noted that:
"In Queen Empress v. Sham Lal [ILR 14 Cal 707] , Galti Mandal v. Emperor [4 Cr LJ 68] , Munshi Isser v. Emperor [II Cr LJ 354] and Lachmi Shaw v. Emperor [33 Cr LJ 514] ). In Tayebulla v. Emperor [ILR 43 Cal 1152] a Division Bench consisting of Mookerjee and Sheepshanks, JJ., made a distinction between a case where a false charge has been made to the police and has not been followed by judicial investigation thereof by the court and where the police makes a report as to the falsity of the information and the complainant insists on a judicial investigation. It was held that in the former case no complaint under Section 195(1)(b) CrPC, was necessary but in the latter case it should be deemed that a complaint had been preferred to the Magistrate and if the Magistrate found the case to be false, sanction would be required as the offence could be said to have been committed in a proceeding in a court. In Brown v. Anandalal Mullick [ILR 44 Cal 650] Sanderson, C.J., delivering the judgment of the Division Bench went into the matter exhaustively and came to the conclusion that where an information to the police was followed by a complaint to the court based on the same allegations and the same FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.7 of 14 charges and such a complaint had been investigated by the court the sanction or the complaint of the court itself was necessary for the prosecution of the informant under Section 211 of the Indian Penal Code even in respect of the false charge made to the police."
11. In Brij Lal Palta (supra), Hon'ble Supreme Court has also observed that:
"7. It seems to us that so far as prosecution under Section 211 of the Penal Code is concerned, once a complaint filed by the informant is being proceeded with which is based on the same facts and allegations on which the first information was registered it is not open to a Magistrate to take cognizance of any offence alleged to have been committed under that section unless there has been proper compliance with the provisions of Section 195(1)(b) CrPC. It will lead to very anomalous results if any other view is accepted e.g., if the complaint is ultimately dismissed and the Magistrate refuses to lodge a complaint under Section 195(1)(b) its provisions will be defeated or circumvented if the police can move the Magistrate to take cognizance on a police report of an offence under Section 211. We are fortified in the view we are taking by the following observations at p. 528 in M.L. Sethi case [1967 (1) SCR 520] :
The question on which the decision in the present case hinges is whether it can be held that any proceedings in any court existed when that Magistrate took cognizance. If any proceeding in any court existed and the offence under Section 211, IPC in the complaint filed before him was alleged to have been committed in such a proceeding, or in relation to any such proceeding, the Magistrate would have been barred from taking cognizance of the offence. On the other hand, if there was no proceeding in any court at all in which, or in relation to which, the offence under Section 211 could have been alleged to have been committed, this provision barring cognizance would not be attracted at all."
FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.8 of 14
12. Based on the above discussions since no judicial investigation has been conducted in the present matter therefore, the requirement of sanction under section 195 Cr. PC is not required.
13. It is the case of the prosecution that accused Mahesh has given false information regarding the blowing up of Prime Minister on 15th August to the police. To prove the same prosecution has relied on the testimony of PCO/STD booth show owner PW2 Lalit Ahmed. PW2 has deposed that in the year 2005 one person by the name of Mahesh had come alongwith his friend Himanshu to his shop. Mahesh entered into the cabin and made a 100 number call there. He also made a few other calls. After 15-20 minutes PCR van came stating that 100 number call was made from his STD booth. He knew Himanshu as he was his frequent customer and he alongwith police officials went to this house where Himanshu told them about the accused Mahesh. In his cross-examination, he has stated that many persons used to come to his shop to make calls. He has also stated that he was not in his PCO at the time when the call was made from his PCO.
14. PW3 Rakesh is also an STD shop owner regarding whom intimation was given to the police that he has links with the terrorists. He has deposed that 2-3 days ago a similar complaint was made against him by the same telephone number. In his cross-examination, he has stated that he has no personal knowledge about the false complaint against him.
15. No other prosecution witness are relevant for establishing FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.9 of 14 the identity of the accused as the person who had made the call from the PCO of PW2. The prime witness of the prosecution i.e. PW2 has been unsettled in his cross-examination and he has stated that he was not present in his PCO when the call was made. Since, PW2 was not present at the time when the call was made anything deposed by him would be in the nature of hear say and hence, not admissible. Accordingly, the prosecution has failed to prove the offence punishable under section 182 IPC.
16. The prosecution has also charged accused Mahesh with offence under section 507 IPC. The offence punishable under S. 507 IPC, reads as follows:
"507. Criminal intimidation by an anonymous communication.--Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section.
17. In the present case as discussed above the prosecution has failed to established that accused Mahesh was the person making the call from his PCO shop of PW2, therefore, in the absence of identification of accused, offence punishable under section 507 IPC is not proved.
18. During arguments Ld. counsel for accused has relied on the judgment of Megha Singh vs. State of Haryana, Crl. Appeal No.479 of 1987 wherein Supreme Court has held that in an FIR the complainant should not be the investigating officer as it may cast a shadow on fair and impartial trial. In the present case the FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.10 of 14 FIR mentions the complainant as SI S. B. Gautam who also happens to be the IO in the present case, and the conviction cannot be based.
19. In a criminal trial, the burden on the prosecution is beyond reasonable doubt. The reasonable doubt is a rule of caution laid down by the Courts of Law in respect of assessing the evidence in criminal cases. In Awadhi Yadav v. State of Bihar, (1971) 3 SCC 116 at page 117, Hon'ble Supreme Court has observed that:
"Before a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond reasonable doubt. If those circumstances or some of them can be explained by any other reasonable hypothesis then the accused must have the benefit of that hypothesis. But in assessing the evidence imaginary possibilities have no place. What is to be considered are ordinary human probabilities."
20. In State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658 : 1999 SCC OnLine SC 577 at page 99 Hon'ble Supreme Court has observed that:
"But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.11 of 14 entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused. It is nearly impossible in any criminal trial to prove all the elements with a scientific precision. A criminal court could be convinced of the guilt only beyond the range of a reasonable doubt. Of course, the expression "reasonable doubt" is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the Judge."
21. Francis Wharton, a celebrated writer on criminal law in the United States has quoted from judicial pronouncements in his book Wharton's Criminal Evidence (at p. 31, Vol. 1 of the 12th Edn.) as follows:
"It is difficult to define the phrase 'reasonable doubt'. However, in all criminal cases a careful explanation of the term ought to be given. A definition often quoted or followed is that given by Chief Justice Shaw in the Webster case. He says:
'It is not mere possible doubt, because everything relating to human affairs and depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that consideration that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge."
22. In the treatise The Law of Criminal Evidence authored by H.C. Underhill it is stated (at p. 34, Vol. 1 of the 5th Edn.) thus:
"The doubt to be reasonable must be such a one as an honest, sensible and fair-minded man might, with reason, entertain consistent with a conscientious desire to ascertain the truth. An honestly entertained doubt of guilt is a reasonable doubt. A vague conjecture or an inference of the possibility of the innocence of the accused is not a reasonable doubt. A reasonable doubt is one which arises from a consideration of all the FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.12 of 14 evidence in a fair and reasonable way. There must be a candid consideration of all the evidence and if, after this candid consideration is had by the jurors, there remains in the minds a conviction of the guilt of the accused, then there is no room for a reasonable doubt."
23. In Shivaji Sahabrao Bobade v.State of Maharashtra (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : (1974) 1 SCR 489 Hon'ble Supreme Court cautioned that:
"the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt."
24. The evidence brought on record by the prosecution, is not sufficient to link the accused to the commission of the crime. As discussed above, the prosecution has failed to establish the identity of the accused as the person who had made the false call to the police. The prosecution has heavily relied on his only public witness PW2, the STD booth owner who has been unsettled in his cross-examination and has stated that he was not present in his shop at the time when the relevant call was made.
25. Thus, in view of the above discussion, the Prosecution has not been able to establish beyond reasonable doubt that accused Mahesh has committed offence under 182/507 IPC and is found not guilty in the present case and resultantly, they stand acquitted in the present case. Their bail bonds stand cancelled and sureties stand discharged.
FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.13 of 14
26. Accused persons each are directed furnish personal bond in the sum of Rs.10,000/- with one surety of like amount u/s 437A Cr.P.C and directed to be present before the Ld. Appellate Court as and when directed. Digitally signed by VIPUL SANDWAR VIPUL Date:
SANDWAR 2023.04.13
16:30:05
+0530
Announced in the open (VIPUL SANDWAR)
Court on 13th April, 2023 MM-02/NE/KKD COURTS
FIR No.232/05 State vs. Mahesh PS New Usmanpur Page No.14 of 14