Delhi District Court
In Re: State vs Anil Kumar Chaurasia on 21 January, 2016
IN THE COURT OF GAURAV RAO: ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT:SAKET COURTS :
NEW DELHI
In Re: STATE VERSUS ANIL KUMAR CHAURASIA
FIR No: 516/14
U/s 283 IPC
P.S. Saket
Date of Institution of Case : 26.08.2014
Judgment Reserved for : 21.01.2016
Date of Judgment : 21.01.2016
JUDGMENT:
(a) The serial no. of the case : 119/2/14
(b) The date of commission of offence : 22.07.2014
(c)The name of complainant : HC Vijender Sharma, No.
104/SD, PS Saket, New Delhi.
The name, parentage, of accused : Anil Kumar Chaurasia
S/o Sh. Raja Ram,
R/o H.No. B210, JJ Colony,
Khanpur, New Delhi.
Present Address : As above
FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 1/12
(e) The offence complained of : U/s 283 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 21.01.2016
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 22.07.2014 at about 5:45 PM, near out gate, Asian Market, M.B. Road, Pushp Vihar, Saket within jurisdiction of PS Saket, New Delhi accused had kept a fridge on patri (footpath) thereby causing obstruction on public way and thus thereby committed offence punishable U/s 283 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide orders dated 04.09.2015 notice U/s 283 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. So far the prosecution has examined two witnesses.
FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 2/12 A brief scrutiny of the evidence recorded in the matter is as under.
4. PW01 Ct. Dharmender deposed that on 22.07.2014, he was posted as constable at PS Saket and on that day at around 5:45 PM, he alongwith HC Vijender were on patrolling duty in area of PS Saket. He deposed that during the course of patrolling duty, they reached at Asian Market, M.B. Road. He deposed that accused Anil Chaurasia (correctly identified in court) was running a shop on the footpath and placed a old fridge on the footpath as a result footpath was blocked and people got difficulty to move on the footpath. He deposed that HC Vijender requested the accused to move the said fridge, but accused did not heed any attention on the said request. He deposed that thereafter, HC Vijender Singh requested the accused to produce any document for running the said shop, but accused did not produce any document. He deposed that thereafter, HC Vijender Singh took the photograph of the spot and prepared a tehrir which was handed over to him for registration of FIR. He deposed that he went to PS and got the FIR registered and after registration of FIR, he returned to the spot with original tehrir and copy of FIR and the same were handed over to HC Vijender / IO. He deposed that thereafter, HC Vijender seized the said fridge vide seizure memo Ex. PW FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 3/12 1/A. He deposed that HC Vijender / IO prepared the site plan. He deposed that after interrogation, IO arrested and carried out personal search of accused vide memos Ex. PW 1/B and Ex. PW 1/C. He deposed that thereafter, they returned to PS alongwith the accused and case property. He deposed that the case property was deposited in malkhana PS Saket and IO recorded his statement. He identified the spot as well as case property in photographs before court and the photographs were exhibited as Ex. P1 (Colly).
5. This witness was crossexamined by ld. defence counsel Sh. S.P. Mishra. During his cross examination, he stated that he was posted at PS Saket since 2012. He stated that he reached the spot at around 5:45 PM alongwith HC Vijender only. He stated that only one Khokha that of the accused is situated on the left side of the Asian market gate. He stated that the site plan was prepared in his presence. Thereafter, the site plan was shown to the witness by ld. defence counsel and he stated that the khokha was placed / situated at point A on the site plan. He stated that the footpath is constructed over the Nala / sever / drain and the khokha is placed on the footpath. He denied the suggestion that the Khokha was placed on an empty land behind the footpath and the footpath is behind the Nala. He denied the suggestion that they used to demand monthly money from the FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 4/12 accused for letting the Khokha being there and also demanded freebies from accused and when one day, accused refused to give the same, they implicated him in this false case. He denied the suggestion that the accused had shown them a copy of order dated 19.05.2011 passed by Presiding Officer / Zonal Vending Committee, constituted by Hon'ble High Court of Delhi on the direction of Hon'ble Supreme Court marked as Mark A (Colly) vide which accused alongwith other appellant were granted status quo till 31.12.2014. He denied the suggestion that while they were removing the Khokha, brother of accused namely Shiv Kumar came there and they took them behind the Khokha and beat him up with fist blows and also banged his head against tree. He denied the suggestion that accused recorded the above act in his mobile which was snatched by them and after deleting the video, they handed back mobile phone back to Shiv Kumar. He denied the suggestion that a call was made on 100 number in this regard. He stated that he has no knowledge whether Shiv Kumar was removed to hospital by his son where his MLC was prepared. He denied the suggestion that the accused was called to PS and falsely implicated in this case. He denied the suggestion that he was deposing falsely at the instance of IO or that the actual details are not reflected in the site plan relating to footpath, drainage and the actual position of Khokha.
FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 5/12
6. PW02 HC Vijender Sharma deposed that on 22.07.2014, he was posted as HC at PS Saket and on that day at around 5:45 PM, he alongwiht Ct. Dharmender were on patrolling duty in area of PS Saket. He deposed that during the course of patrolling duty, they reached at Asian Market, M.B. Road. He deposed that accused Anil Chaurasia (correctly identified in court) was running a shop on the footpath and placed a old fridge on the footpath as a result footpath was blocked and people got difficulty to move on the footpath. He deposed that he requested the accused to move the said fridge, but he did not heed any attention on the said request. He deposed that thereafter, he requested the accused to produce any document for running the said shop, but accused did not produce any document. He deposed that thereafter, he took the photographs of the spot and prepared a tehrir as Ex. PW 2/A which was handed over to Ct. Dharmender for registration of FIR. He deposed that Ct. Dharmender went to PS and got the FIR registered. He deposed that after registration of FIR, Ct. Dharmender returned to the spot at around 7:00 PM with original tehrir and copy of FIR and the same were handed over to him. He deposed that thereafter, he seized the said fridge vide seizure memo Ex. PW 1/A. He deposed that he prepared the site plan which as Ex. PW FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 6/12 2/B and after interrogation, he arrested and carried out personal search of accused vide memos Ex. PW 1/B and Ex. PW 1/C. He deposed that thereafter, they returned to PS alongwith the accused and case property and the case property was deposited in malkhana PS Saket. He deposed that he recorded the statement of Ct. Dharmender, prepared the challan and filed in court through concerned SHO. He identified the spot as well as case property in photographs before court and the photographs were exhibited as Ex. P1 (Colly).
7. This witness was crossexamined by ld. defence counsel Sh. S.P. Mishra. During his cross examination, he stated that he was posted at PS Saket since 2014. He stated that he alongwith Ct. Dharmender reached the spot at around 5:45 PM. He stated that only one Khokha that of the accused is situated on the left side of the Asian market gate. He also stated that the site plan was prepared by him in presence of Ct. Dharmender. He denied the suggestion that the accused had shown them a copy of order dated 19.05.2011 passed by Presiding Officer / Zonal Vending Committee, constituted by Hon'ble High Court of Delhi on the direction of Hon'ble Supreme Court marked as MarkA (Colly) vide which accused alongwith other appellant were granted status quo till 31.12.2014. He denied the suggestion that during the course of investigation, accused FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 7/12 came to PS and placed before him the copy of orders, however, he deliberately did not take the said orders on record and instead wrongfully filed the present chargesheet against the accused. He admitted that in Petition no. 1699/1987, the name of the accused appears at Sl. No. 91 and the address of Khokha as appears in the petition / against the name of the applicant, is the same address as is the subject matter of present trial and the copy of said petition is MarkB (Colly). Thereafter, ld. defence counsel shown copy of orders dated 31.01.2013, 05.03.2013 & 29.04.2013 to him specifically to which he stated that he was not aware of any such order nor any such order was shown to him. He denied the suggestion that he was shown the above order by accused or that he was deposing falsely today. He admitted that the Khokha of the accused situated on the footpath near Asian Market is at the same address as appears in order dated 20.04.2012 passed by Hon'ble Justice J.P. Singh (Appellate Authority) marked as MarkA1. He voluntarily stated that he was not shown the said orders ever. He denied the suggestion that he was deposing falsely. He denied the suggestion that while they were removing the Khokha, brother of accused namely Shiv Kumar came there and they took him behind the Khokha and beat him up with fist blows and also banged his head against tree. He denied the suggestion that accused recorded the above act in his mobile FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 8/12 which was snatched by them and after deleting the video, they handed his mobile back to him. He denied the suggestion that a call was made on 100 number in this regard. He stated that he had no knowledge whether Shiv Kumar was removed to hospital by his son where his MLC was prepared. He denied the suggestion that the accused was called to PS and falsely implicated in this case. He further denied the suggestion that this is a false case against the accused.
8. This is as far as the prosecution evidence in the matter is concerned.
9. I have perused the records and after going through the records I am of the opinion that in view of deposition of PW1 & PW2 as recorded today, no purpose shall be served with further continuation of trial in the present case.
10. In order to prove its case and establish the guilt of accused Anil Kumar Chaurasia the prosecution has to prove that he caused obstruction to the public at large by keeping an old fridge on the patri/footpath which caused obstruction to public way.
FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 9/12
11. The present prosecution was launched on the basis of complaint of HC Vijender i.e. PW2/A who was examined as PW2 by the prosecution. The gist of the complaint is that HC Vijender along with Constable Dharmender during patrolling reached near Asian Market, MB Road, Saket, New Delhi where they saw that accused had kept an old fridge on the partri/footpath which was causing obstruction in public way. HC Vijender asked the accused to remove the fridge however the accused claimed that he had the "teh bazari" to keep the fridge there but he could not show any document in support of his claim and accordingly after taking the photographs the fridge was removed from there, seized and deposited in Malkhana. Let that be the case today during the cross examination of HC Vijender i.e. PW2 as well as Constable Dharmender they were confronted with certain documents by the Ld. Defence counsel and these documents coupled with the admissions made by PW2 during his deposition entitles the accused for acquittal. These documents which are exhibited as Annexure A, A1 and Mark B gives the accused a right to keep the fridge on the patri/footpath/at the disputed place. Once he is given the right to keep the fridge on the parti/footpath. Therefore even if obstruction is caused to the public still he cannot be prosecuted u/s 283 IPC. Annexure A basically is set of documents containing numerous orders FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 10/12 passed by the Appellate Authority, constituted by the Hon'ble High Court of Delhi on the directions of Hon'ble Apex Court, from time to time wherein squatters/hawkers including accused Anil Kumar Chaurasia have been given a protection against removal/eviction. The protection given to accused Anil Kumar is in respect of disputed site. Accused Anil Kumar is one of the original petitioner in writ petition/contempt petition (civil) no. 187/13 in writ petition (civil) no. 1699/1987 and his name appears at Sl. No. 91. The Appellate Authority constituted by the Hon'ble High Court as per the directions of the Hon'ble Apex Court passed the following order on 20.04.2012 in appeal no. 607/2012.
"Heard. Perused the file. The learned Presiding Officer of Zonal Vending Committee has already granted status qua vide order dated 19.5.2011 which continued upto 31.12.2011, under the NCT of Delhi Laws (Special Provisions) Act 2011, which Act has been extended under the NCT of Delhi Laws (Special Provisions) second Act 2011 upto 31.12.2014. The site of squatting mentioned in the fine receipts is Footpath, Sector3, M.B. Road, Pushp Vihar, New Delhi."
12. Today complainant HC Vijender who is also IO of the case admitted during his cross examination as under: ".........It is correct that in Petition no. 1699/1987, the name of the accused appears at Sl. No. 91 and the address of Khokha as appears in the petition/against the name of the applicant, is the same address as is the subject matter of present trial. The copy of said petition is marked as MarkB FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 11/12 (Colly)..................It is correct that the Khokha of the accused which is situated on the footpath near Asian Market at the same address as appears in order dated 20.04.2012 passed by Hon'ble Justice J.P. Singh (Appellate Authority) which is marked as Mark A1. vol. I was not shown the said orders ever."
13. The above admission of the IO coupled with documents Mark A, Mark A1 and Mark B entitles the accused for acquittal. As long as he is given the protection he cannot be prosecuted u/s 283 IPC.
14. Hence continuation of trial shall be a exercise in futility with no prospect of a result in favour of the prosecution. In all likelihood prosecution case shall fall flat. PE is accordingly closed. SA is accordingly dispensed with as prosecution could not bring any worthy incriminating material on record against the accused.
15. Accused stands acquitted.
16. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 21.01.2016 ACMM (SD)/Saket/New Delhi
FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 12/12
FIR No. 516/14
PS Saket
21.01.2016
Present: Sh. Narender Yadav, ld. APP for the State.
Accused Anil Kumar on bail present today with ld. defence counsel Sh. S.P. Mishra.
PW01 & 02 namely Sh. Dharmender and HC Vijender have been examinedinchief, crossexamined and discharged.
No other PW is present today.
I have gone through the testimonies of witnesses recorded in court today.
Vide my separate judgment announced today in the open court, accused Anil Kumar Chaurasia has been acquitted of the charges in the present case.
Accused is directed to furnish his bail bond U/s 437A Cr.P.C. on 23.01.2016.
(Gaurav Rao) ACMM/South/Saket/21.01.2016 FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 13/12 FIR No. 516/14 PS Saket 23.01.2016 Present: Sh. Narender Yadav, ld. APP for the State.
Accused Anil Kumar on bail present today with ld. defence counsel Sh. S.P. Mishra.
I have perused my last orders vide which accused was acquitted in the present case and matter is listed today for furnishing of bail bond U/s 437A Cr.P.C.
Fresh bail bond U/s 437A Cr.P.C. has been furnished and same is accepted for further six months from today.
Previous bail bond of accused stands canceled. Previous surety is discharged. Endorsement upon document if any, be canceled. Original document if any, be returned to its rightful claimant against receiving.
File be consigned to Record Room.
(Gaurav Rao) ACMM/South/Saket/23.01.2016 FIR No. 516/14 St. Vs. Anil Kumar Chaurasia 14/12