Delhi District Court
State vs Yadram on 23 August, 2024
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA
COURT, NEW DELHI.
FIR No.: 631/2021
PS: Mohan Garden
U/s: 188 IPC & 14C Foreigners Act
Case no. 1464/2022
State
Vs.
Yadram
S/o Late Sh. Chunni Lal
R/o H. No. A-43, Sidhatri Enclave,
Mohan Garden, New Delhi ..... Accused
S. No. of the case : 1464/2022
The date of offence : 05.11.2021
The name of the complainant : ASI Om Parkash
The name of the accused : Yadram
The offence complained : 188 IPC &
14C Foreigners Act
The plea of the accused : Pleaded not guilty
Argument heard on : 23.08.2024
The date of order : 23.08.2024
The final order : Acquittal
Ld. APP for the State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that on 05.11.2021 SI Ram Niwas arrested four African nationals namely, Namakula Doreen, Nicole, Doreen and Theresa, in FIR No 629/21 and informed ASI Om Prakash that the said four African Nationals are residing at H No Q 37, Mohan Garden, Delhi which belonged to the accused Yadram and he had kept the abovesaid Nationals, who were not having valid FIR No.: 631/2021 State versus Yadram Page No. 1 of 10 VISA and passport, without any police verification. It is the case of the prosecution that the accused Yadram did not carry out the police verification of the abovesaid tenants who were residing in his house. An FIR bearing no. 631/2021 u/s 188 IPC and Section 14 C Foreigners Act came to be registered at PS Mohan Garden.
2. Investigation was set into motion and was conducted by ASI Om Prakash. Chargesheet was filed by IO ASI Om Prakash under Section 188 IPC and 14 C Foreigners Act.
3. After taking cognizance of the offence, the accused was summoned to face trial. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC') . On finding a prima facie case against him, charge under Section 188 IPC and 14 C Foreigners Act was framed against the accused on 12.12.2023 to which the accused pleaded not guilty and claimed trial.
4. During the course of the trial the accused admitted FIR No 631/2021 PS Mohan Garden along with certificate 65B IEA Ex P1, Application for permission under Section 195 CRPC and complaint under Section 195 CRPC as Ex P2. Thus, witnesses at serial no 2, 3 & 5 were dropped in furtherance of statement of the accused under Section 294 CRPC.
Prosecution Evidence
5. The prosecution examined the following witnesses:
i. ASI Om Prakash was examined as PW1. He stated that on 05.11.2021, one FIR was registered by SI Ram Ni- was u/s 14A Foreigner Act in which four African cit- izens were arrested. SI Ram Niwas informed him that FIR No.: 631/2021 State versus Yadram Page No. 2 of 10 at H. No. Q 37, Mohan Garden, Delhi, arrested four ac- cused in FIR No. 629/21 were residing at the abovesaid address. After that he prepared the rukka Ex. PW-1/A bearing his signature at point A and got the FIR re- gistered through DO. On 08.11.2021, the owner of the said house namely Yadram came at the PS where he was arrested vide arrest memo Ex. PW-1/B bearing his signature at point A, personal search memo Ex. PW- 1/C bearing his signature at point A. At the instance of accused Yadram, he prepared site plan Ex. PW-1/D bearing his signature at point A. Accused submitted photocopy of BSES bill, same is now marked as Mark Y, photocopy of his Aadhar card marked as Mark Z, photocopy of power of attorney for the abovesaid plot marked as Mark Z1 (colly), rent agreement marked as Mark Z2 (colly). He got the accused medically ex- amined. After that, he produced the accused on the same day in the concerned court, he was granted bail from the court. During investigation, he took the per- mission under section 195 Cr.P.C from the concerned ACP, same is Ex. PW-1/E. During investigation, he re- corded the statement of witness u/s 161 Cr.P.C. Ac- cused is present in the court and correctly identified by the witness.
ii. In his cross-examination PW 1 affirmed that the rent agreement present on record is not between any of the accused arrested in FIR No. 629/21 and the same is FIR No.: 631/2021 State versus Yadram Page No. 3 of 10 between person namely Okechuawu (vol. stated that accused informed him that the person who was arres- ted in the FIR 629/21 used to visit Okechuawu). He did not investigate the accused arrested under FIR No. 629/21 on the basis of which the present FIR was re- gistered. He ask the public persons regarding the ac- cused arrested in FIR No. 629/21, however, everyone refused by stating their personal reasons. He did not serve any notice to the public persons. He have no knowledge whether the accused were arrested from the alleged house. He did not got the rent agreement veri- fied (vol. accused shown him the original at the time of giving photocopy). He denied that arrested accused in FIR No. 629/21 used to visit the tenant Okechuawu of accused in present case. He denied that false case has been prepared against the accused while sitting at PS. He denied that he is deposing falsely.
iii. SI Ram Niwas was examined as PW 2. He stated that on 05.11.2021, he was posted at P.S Mohan Garden as SI. On that day, he arrested four foreign nationals namely Namakula Doreen, Nicole, Doreen and Theresa under FIR No. 629/21 Ex PW-2/A (colly) un- der Section 14A Foreigners Act and after that he in- formed about the same to ASI Om Prakash and in- formed him that all accused have disclosed their ad- dresses i.e. Q-37, Mohan Garden, New Delhi. During FIR No.: 631/2021 State versus Yadram Page No. 4 of 10 investigation, ASI Om Prakash recorded his statement u/s 161 Cr.P.C.
iv. In his cross examination he affirmed that none of the accused was arrested from Q-37, Mohan Garden, New Delhi. He also affirmed that he have not visited Q-37, Mohan Garden, New Delhi and checked whether ac- cused belongings were at the said address or not. He denied that he is deposing falsely or that accused per- sons never informed him that they were residing at Q- 37, Mohan Garden, New Delhi.
6. The prosecution evidence was thereafter closed and the statement of accused u/s 313 CrPC was recorded on 27.04.2024 wherein all the incriminating evidence appearing on record against the accused was put to him but he denied the same. The accused chose to lead any defence evidence and examined himself as DW 1.
7. In his examination DW 1 stated that he is the owner of plot No. Q-
37I/F, Mohan Garden, Uttam Nagar. On 08.10.2021 vide request no. 81762143515, he requested for registration of tenant information through online tenant verification portal of Delhi Police for his tenant namely Okechukwu Lawson S/o Osuji. Same is produced today along with certificate u/s 65 B IEA Mark DA. He have also brought arrival report of Foreigner namely Okechukwu Lawson S/o Osuji, E-FRRO regarding service granted stay visa for tenant Okechukwu Lawson S/o Osuji, copy of passport of tenant Okechukwu Lawson S/o Osuji, all are marked as Mark DB (colly) (total 3 pages). As per the regulations, he have done all the verification for his tenants and only allowed tenant FIR No.: 631/2021 State versus Yadram Page No. 5 of 10 Okechukwu Lawson S/o Osuji to stay at his property as a tenant.
8. In his cross examination DW1 denied that he allowed other foreign nationals to stay at his premises along with Okechukwu Lawson S/o Osuji. He also denied that he was aware about the fact that all other foreign nationals who were staying with Okechukwu Lawson S/o Osuji do not have valid visa for their stay in India. He also denied that he only got the police verification done for tenant Okechukwu Lawson S/o Osuji as only he had the valid visa at that time, therefore, to save himself in the case when others will be caught in future by the police, he can use his police verification as defence. He denied that he is deposing falsely.
9. DE was, thereafter, closed.
10. Ld. APP for the State argued that the prosecution has proved its case against the accused beyond reasonable doubt. It is contended that the witness has stated the case completely and the accused is liable to be convicted in this case.
11. Ld. counsel for the accused submitted that the prosecution has failed to prove its case beyond reasonable ground, therefore, accused may be acquitted in present case.
12. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughtful consideration to the matter. Findings of the Court
13. Before embarking on the analysis and appreciation of the statements and evidences on record it is apposite to state that to bring home the guilt of the accused in any criminal matter beyond the shadow of reasonable doubt the burden rests always upon the FIR No.: 631/2021 State versus Yadram Page No. 6 of 10 prosecution. The burden of proof on the prosecution is heavy, constant and does not shift. The case of the prosecution needs to stand on its own footing failing which benefit of doubt ought to be given in favour of the accused. Needless to say, in this case also, with or without defense evidence, the prosecution has to establish its case beyond reasonable doubt. On the touchstone of the above settled legal proposition the facts of the present case are to be analysed.
14. In this case accused has been charged and being tried for offence under section 188 IPC & 14C of The Foreigner Act. Before dealing with the offence U/S 188 IPC, it is imperative to note that Section 14C of The Foreigners Act, 1946 states that:
14C. Penalty for abetment.--Whoever abets any offence punishable under section 14 or section 14A or section 14B shall, if the act abetted is committed in consequence of the abetment, be punished with the punishment provided for the offence.
15. Therefore, in order to fulfil the ingredient of Section 14C, prosecution must prove that accused in this case has abetted an offence u/s 14/14A/14B of the act.
16. Section 14 of Foreigners Act is as under:
14. Penalty for contravention of provisions of the Act, etc.--Whoever. -- (a) remains in any area in India for a period exceeding the period for which the visa was issued to him;
(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;
FIR No.: 631/2021 State versus Yadram Page No. 7 of 10
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine; and if he has entered into a bond in pursuance of clause (f) of sub-section (2) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting Court why such penalty should not be paid by him.
Explanation.--For the purposes of this section, the expression "visa" shall have the same meaning as assigned to it under the Passport (Entry into India) Rules, 1950 made under the Passport (entry into India) Act, 1920 (34 of 1920).
17. The prosecution, thus, must prove that accused Yadram had let out his property to Namakula Doreen, Nicole, Doreen and Theresa as tenant. Further, accused Yadram has abetted this offence by allegedly allowing Namakula Doreen, Nicole, Doreen and Theresa to stay at his place as tenants without police verification. Prosecution version is that Namakula Doreen, Nicole, Doreen and Theresa were arrested in FIR No 629/2021 and disclosed to PW 2 their address as H No Q 37, Mohan Garden, Delhi. It is to be noted that this whole case is initiated on the alleged statements of Namakula Doreen, Nicole, Doreen and Theresa, who allegedly stated to PW2 in case FIR No. 629/2021 PS Mohan Garden that they were residing as tenant at the premises tenanted by accused Yadram. Further, accused has also been charged u/s 188 IPC for FIR No.: 631/2021 State versus Yadram Page No. 8 of 10 violating the aforementioned order of the concerned ACP for non- verification of tenant.
18. During the course of the trial and on reading the testimonies of the witnesses, it is not clear as to whether the accused was actually found keeping Namakula Doreen, Nicole, Doreen and Theresa as tenant. It is significant to note that the present case is only based upon the hearsay of alleged persons Namakula Doreen, Nicole, Doreen and Theresa claiming to be the tenant of accused in present case. It is further to be noted that Namakula Doreen, Nicole, Doreen and Theresa has also not been included as witnesses in this matter by the IO and IO has not even examined the alleged tenants in the course of investigation. Mere statements of Namakula Doreen, Nicole, Doreen and Theresa, that too oral, that they were living as a tenant at some other property does not prove the sanctity of the statement given by Namakula Doreen, Nicole, Doreen and Theresa. Besides, that particular statements will hit the bar of Sec.25 of Indian Evidence Act. Therefore, prosecution was casted a duty prove that Namakula Doreen, Nicole, Doreen and Theresa were staying at H No Q 37, Mohan Garden, Delhi as tenants of landlord/accused Yadram. However, the same could not be proved beyond reasonable doubt. Therefore, prosecution has failed to prove that accused Yadram had let out his property to Namakula Doreen, Nicole, Doreen and Theresa as a tenants.
19. Furthermore, the IO/PW 1 in his cross examination categorically stated that he have no knowledge whether the accused persons were arrested from the alleged house of the accused. Additionally, PW 2, who was the first person to arrest the accused in FIR 629/21 FIR No.: 631/2021 State versus Yadram Page No. 9 of 10 affirmed that none of the accused persons was arrested from Q-37, Mohan Garden, New Delhi. PW 2 also affirmed that he had not vis- ited Q-37, Mohan Garden, New Delhi and checked whether ac- cused belongings were at the said address or not. Thus, grave doubt exists in the case of prosecution and no connection whatsoever of the foreign nationals arrested in FIR No 629/21 gets established with the accused qua the present FIR.
20. Hence, the offences u/s 188 IPC and 14C of the Foreigners Act are not made out. Therefore, accused is bound to get to acquitted in this case.
21. Hence, accused Yadram S/o Late Sh. Chunni Lal R/o H. No. A-43, Sidhatri Enclave, Mohan Garden, New Delhi stands acquitted of the offence under section 188 IPC & 14C of The Foreigners Act, 1946, he has been charged and tried with. Digitally signed by HARSHAL NEGI HARSHAL Date:
NEGI 2024.08.23
22:23:41
Announced in the open court on 23.08.2024. +0530 (Harshal Negi) JMFC-02/Dwarka Court, New Delhi, 23.08.2024 It is certified that the present judgment runs into 10 pages and each page bears my signature. HARSHAL Digitally signed by HARSHAL NEGI NEGI (Harshal Negi) Date: 2024.08.23 22:23:51 +0530 JMFC-02/DwarkaCourt, New Delhi, 23.08.2024 FIR No.: 631/2021 State versus Yadram Page No. 10 of 10