Delhi District Court
State vs . on 13 September, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 81280/2016
Unique Case ID No. -: DLSH020019622014
DD No. -: 35B of 15.03.2014
Police Station -: Harsh Vihar
Section(s) -: 53/116 Delhi Police Act
In the matter of -
STATE
VS.
RAMESH VERMA
S/o Sh. Yogender Verma,
R/o H. No. 210, Street No. 6,
Mandoli Extension, New Delhi.
.... Accused
1. Name of Complainant : HC Abdesh Kumar
2. Name of Accused : Ramesh Verma
Offence complained of or
3. : 53/116 Delhi Police Act
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 15.03.2014
offence
6. Date of Filing of case : 15.03.2014
7. Date of Reserving Order : 09.09.2022
8. Date of Pronouncement : 13.09.2022
9. Final Order : Acquitted
Argued by -: Sh. Bhuvnesh Sharma, Ld. substitute APP for the State.
Sh. Vinod Sharma, Ld. counsel for the accused.
Digitally
signed by
DEV
DEV CHAUDHARY
CHAUDHARY Date:
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INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Prosecution Evidence 3-4
3. Statement of accused and defence evidence 4
4. Arguments 5
5. Ingredients of the offence 5-7
6. Appreciation of evidence 7-13
7. Conclusion 13
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution is that on 15.03.2014, HC Abdesh Kumar alongwith HC Harender were on area patrolling duty. At around 09:45 am, a secret informer met them and stated that accused Ramesh Verma, who has been externed from Delhi, will come to his house and he can be nabbed, if raided. The police party took their positions and after some time, the secret informer pointed towards the accused. The accused was then apprehended by the police officials and it was found that he was externed from Delhi for a period of one year, vide order of the Addl.
DCP dated 08.08.2013. As such, it is alleged that the accused violated the externment order and committed the offence punishable under Section 116 of the Delhi Police Act, 1978 (hereinafter, "the DP Act"), for which DD No. 35B dated 15.03.2014 was registered at the Police Station Harsh Vihar, New Delhi.
2. After completion of formalities, the present kalandra was filed in the Court. After taking cognizance of the offence, the accused was summoned to face trial. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
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3. On his appearance, a copy of kalandra was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice of accusation under Section 53/116 of the DP Act was served upon the accused. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW-1 : HC Harender (arrest witness) PW-2 : HC Abdesh (complainant) PW-3 : HC Chaman Lal (formal) DOCUMENTARY EVIDENCE Ex. PW1/A : Arrest memo of accused Ex. PW1/B : Personal search memo of accused Ex. PW2/A : Kalandra Mark A : Copy of externment order Ex. PW3/A : Order of destruction of record
5. HC Abdesh Kumar (PW2) is the complainant, who stated on oath that on 15.03.2014, he was on patrolling duty alongwith HC Harender (PW1) in the morning. When they reached near Mandoli Chungi, one secret informer met them and informed that the accused will come to his house via Wazirabad road. The secret informer also conveyed that the accused has been externed from Delhi for a period of one year and around 6-7 months have already passed. Some passersby were requested to join the proceedings but they refused to so do after citing their excuses. They Digitally signed by DEV CHAUDHARY Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 3 of 13 DEV CHAUDHARY Date:
2022.09.13 11:42:53 +0530 took position in a TSR and apprehended the accused. The accused disclosed that he has been externed from Delhi for a year and was going to meet his father. The details about the externment order were sought from the police station and the accused was arrested. The witness correctly identified the accused from the dock. 5.1. In cross-examination, HC Abdesh Kumar (PW2) stated that he could not give any notices to the public persons due to scarcity of time. He admitted that he had his mobile phone but did not take pictures of the public persons or the accused. He admitted that Bhopra village is within the territorial jurisdiction of Uttar Pradesh.
He could not depose about the details of the TSR. He admitted that he did not have the externment order with him at the time the accused was apprehended.
6. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
7. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. The accused stated that he is falsely implicated in the present case and is innocent. He stated that he was residing at Village Bhopura, Sahibabad, District Ghaziabad, Uttar Pradesh at the time of his arrest and the village does not come within the territorial jurisdiction of Delhi. Pursuant thereto, he stated that he does not wish DEV CHAUDHARY to lead any defence evidence. Digitally signed by DEV CHAUDHARY Date: 2022.09.13 11:43:16 +0530 Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 4 of 13 ARGUMENTS -
8. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
9. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the ocular as well as documentary evidence has clearly proved that the accused violated the externment order passed against him by entering Delhi. As such, it is prayed that the accused be punished for the said offence.
10. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that the externment order itself has not been proved in accordance with law. He has argued that the accused was residing outside the territorial jurisdiction of Delhi, on the date of incident. The U.P. border is merely at a distance of 1-1.5km from the boundary of Delhi and the accused has been apprehended from outside Delhi. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE -
11. The accused has been charged for the offence under Section 116 of the DP Act. The provision provides for penalty for contravention of the direction issued against a person under Section 46/47/48 of the DP Act. Entering or returning to Delhi in contravention of an externment order passed under Section 46/47/48 of the DP Act makes a person liable under the said provision. For Digitally signed by DEV DEV CHAUDHARY Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 5 of 13 CHAUDHARY Date:
2022.09.13 11:43:37 +0530 purposes of the present case, Section 47 of the DP Act is relevant. Under the said provision, the Commissioner of Police is empowered to direct a person to remove himself from Delhi or a part thereof, for a period as may be specified. The provision also lays down the circumstances in which such an order can be passed. Same are reproduced below :-
"(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 or 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"
Therefore, on satisfaction of the above circumstances against a person, an order for externment can be passed. In terms of Section 49 of the DP Act, the order for externment of a person cannot exceed a period of two years. Section 54 of the DP Act provides for temporary permission to the externed person to return to Delhi. Such permission for a specified duration is to be obtained by the externed person from the Commissioner of Police. In case of violation of the order, Section 53 of the Act provides that a person either not complying with the order or violating the same by entering into Delhi, without any permission, can be arrested and removed outside Delhi in police Digitally signed by DEV DEV CHAUDHARY Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 6 of 13 CHAUDHARY Date:
2022.09.13 11:44:05 +0530 custody.
12. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
13. The whole case of the prosecution is based on the externment order and its consequent violation by the accused. The version of the prosecution is that the police officials were on patrolling duty, when they received secret information that the accused, against whom an externment order has been passed by competent authority, shall be returning to his house within Delhi.
They prepared a raiding team and nabbed the accused on the basis of identification by the said secret informer. Since the accused was found present within the territorial jurisdiction of Delhi, he violated the externment order passed against him and committed the offence under the DP Act.
14. At the outset, it is noted that the said order Mark A itself has not been proved as per the provisions of the Indian Evidence Act, 1872 (hereinafter, "the Evidence Act"). Chapter V of the Act deals with documentary evidence and Section 64 of the Evidence Act enshrines the principle of best evidence rule. It provides that documents must be proved by primary evidence, i.e. the document itself. Section 65 lists the situations in which secondary evidence of the document is allowed to be brought into evidence. Secondary Digitally signed by DEV DEV CHAUDHARY Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 7 of 13 CHAUDHARY Date:
2022.09.13 11:44:25 +0530 evidence is defined under Section 63 of the Evidence Act. In the present case, PW3 is the official from the Externment Cell, who was summoned with the externment order dated 08.08.2013. However, instead of the order, be produced an order dated 13.06.2020 (Ex. PW3/A), vide which the record pertaining to the said externment order has been destroyed. Ex. PW3/A is the order of the ACP/HQ whereby the old record of the externment cell has been ordered to be destroyed. Although said order is a general order, which does not specify the period for which the orders have been destroyed, PW3 has deposed that the order dated 08.08.2013 has been destroyed in terms of the said order. As such, suffice to say, the primary evidence of the externment order is not available in this case and the State has led evidence of foundational facts entitling it to lead secondary evidence.
15. As such, in terms of clause (c) of Section 65 of the Evidence Act, when the original document has been destroyed or lost, any secondary evidence of the contents of the document is admissible in evidence. In this case, PW2 is the star witness, who has produced a photocopy of the externment order dated 08.08.2013, which is Mark A. However, in the opinion of this Court, mere production of a photocopy does not ipso facto satisfy the requirements of Section 63 of the Evidence Act. Under Section 63, secondary evidence includes the following-
(1) certified copies, (2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not DEV
CHAUDHARY
execute them, Digitally signed by
DEV CHAUDHARY
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(5) oral accounts of the contents of a document given by some person who has himself seen it.
Therefore, it is clear that mere production of a photocopy is not sufficient and it has to be shown by leading positive evidence that the photocopy is of the original document. The authenticity of the photocopied document is to be established. Mere marking or exhibition of a document does not amount to its proof and in this case, PW2 has only stated that he obtained a copy of the externment order Mark A. There is no further elaboration on the point. There is no mention as to where the copy was prepared and by whom. There is also no assertion that the copy was prepared from the original.
16. At this juncture, it would be apposite to mention that Section 133 of the DP Act provides for the method of proving orders and notifications. It reads as under -
"133. Method of proving orders and notifications - Any order or notification published or issued by the Administrator or by the Commissioner of Police or any other police officer under any provision of this Act, and the due publication or issue thereof may be proved by the production of a copy thereof in the Official Gazette, or of a copy thereof signed by the Administrator or Commissioner of Police or other police officer, as the case may be, and by him certified to be a true copy of an original published or issued according to the provisions of this Act applicable thereto."
(emphasis supplied) The aforesaid provision itself stipulates that the officer who has passed the order has to sign and certify a copy to be a true copy, in order for it to be proved. Section 134 of the DP Act provides for presumptions on production of an authentic copy. The document Mark A, which is a copy, does not contain any mark or stamp of the officer who passed it. There is no stamp of the office of Addl. DCP or any officer who is the custodian of records in the said office. An DEV CHAUDHARY offshoot of the above discussion is that the externment order, which Digitally signed by DEV CHAUDHARY Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 9 of 13 Date: 2022.09.13 11:46:12 +0530 was critical for the prosecution to prove, remains unproved. Therefore, it cannot be read into evidence to prove its contents and ascertain other details like extent, operation and terms and conditions of the order.
17. Moving forward, the case of the prosecution hinges on the testimony of the two-star witnesses of the prosecution, PW1 and PW2, who were on patrolling duty on the date of incident. However, in the opinion of this Court, the testimony of the witnesses does not inspire confidence. Even though mere fact that the witnesses are police officials is not sufficient to doubt their testimony, the other factors discussed below throw a doubt on the reliability of the police witnesses. In this regard, it is to be noted at the outset that the prosecution has failed to produce any documentary evidence to prove that the police witnesses were on patrolling duty of the date of incident.
18. There is no proof of any departure entry in the police station at the time when PW1 and PW2 left for patrolling duty. The departure entry in the Daily Diary would have been a substantial piece of evidence to corroborate the version of the police officials. It is pertinent to mention here that the duty to record the departure and arrival is mandatory for the police officials, as per Rule 49, Chapter 22 of the Punjab Police Rules, 1934. The relevant portion of the said Rule reads as under-:
"22.49 - Matters to be entered in Register no. II - The following matters shall, amongst others, be entered :-
... (c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station of elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on the arrival or prior to the departure of the officer concerned and shall Digitally signed by DEV be attested by the latter personally by signature or seal." DEV CHAUDHARY CHAUDHARY Date:
2022.09.13 11:46:40 +0530 Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 10 of 13 Further, PW1 and PW2 have deposed that they had met a secret informer during patrolling and he had informed about the whereabouts of the accused. There is no mention that the said information was conveyed to the police station at that point of time. Both the witnesses have stated that after they apprehended the accused, PW2 called the police station via phone and they confirmed about the existence of an externment order against the accused. There is no DD entry on record regarding the same. Therefore, the version of the prosecution witnesses does not have any corroboration by documentary evidence. Non-production of the same puts a doubt on the version of the prosecution.
19. The next issue pertains to non-joining of independent witnesses. Although it is true that non-joining of independent witnesses cannot be a sole ground to discard the evidence of police witnesses (Refer: Appabhai vs. State of Gujarat AIR 1988 SC 696), however, evidence in every case is to be weighed in light of the peculiar facts of the case. Both PW1 and PW2 have deposed that after receipt of information, they took positions in a TSR, which was stationed near the spot. PW1 has not deposed about any details of the TSR in his testimony. PW2 was cross examined on this point but he failed to disclose any details of the TSR. He could not depose about either the registration number of the TSR or the details of its owner.
Further, there is no explanation as to why the owner of the TSR was not made a witness. He would have been an important independent witness who could have corroborated the version of the police officials. However, he was not made a witness for reasons unknown. As per version of the witnesses PW1 and PW2, after they received Digitally signed by secret information, they requested passersby to join the investigation.
DEV
DEV CHAUDHARY
CHAUDHARY Date:
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However, they left the spot without disclosing their names and addresses.
20. The police officials remained at the spot for a considerable duration. PW2 has stated the secret information was received at around 09:45 am. As per the arrest memo Ex. PW1/A, the accused was arrested at 11:30 am. The arrival entry is of 12:45 pm. During this period of more than three hours, no public persons were joined in the investigation. The explanation offered is the stereotypical refusal on part of such persons to join the instigation. There is no justification as to why the arresting officer did not issue any notice to the public persons. Failure to join the investigation would entail penal consequences and this shows that no sincere efforts were made to join such witnesses. The availability of public persons at/near the place of incident is undeniable. Thus, the fact that despite availability, no public persons were joined, casts a doubt on the version of the prosecution. Pertinently, there is no site plan in the present case so as to examine the spot of apprehension and its surroundings. The arresting officer has his mobile phone with him during the whole duration, as per his own admission. Despite the same, he did not take any pictures to corroborate his version.
21. The defence of the accused is that he has been falsely implicated and he has stated in his statement under Section 313 CrPC that he was residing at Village Bhopura, Shahibabad, District Ghaziabad, U.P. at the time of his apprehension and was arrested from there. PW2 has admitted in his cross examination that U.P. border is merely 1-1.5 km from the spot where the accused was apprehended. In view of the above discussion, the accused has been DEV CHAUDHARY able to punch holes in the version of the prosecution and his Digitally signed by DEV CHAUDHARY Date: 2022.09.13 Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 12 of 13 11:47:13 +0530 apprehension from the territorial jurisdiction of Delhi is not proved beyond and shadow of doubt.
CONCLUSION -
22. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence under Section 116 read with Section 53 of the DP Act beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The externment order, which is the basis of the present prosecution, has not been proved in accordance with law. The evidence of police witnesses is not reliable and no independent witnesses were joined, despite abundant availability. I have no hesitation to hold that the accused is entitled to benefit of doubt.
23. Resultantly, the accused RAMESH VERMA son of Yogender Verma is entitled for benefit of reasonable doubt and is hereby found not guilty. He is hereby ACQUITTED of the offence under Section 116 of the Delhi Police Act, 1978.
Pronounced in open court on 13.09.2022 in presence of accused person. This judgment contains 13 pages and each page has been signed by the undersigned. Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2022.09.13 11:47:34 +0530 (DEV CHAUDHARY) Metropolitan Magistrate - 07 Shahdara District, Karkardooma Courts, New Delhi, 13.09.2022 Cr. Case no. 81280/2016 State Vs. Ramesh Verma Page 13 of 13