Interim Order 23

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF MS. DIVYA MALHOTRA
ADDITIONAL CHIEF JUDICIAL MAGISTRATE-01: ROUSE
AVENUE DISTRICT COURTS: NEW DELHI.
DLCT120001582024
CR Case No. 9/2024
CNR No. DLCT12-000158-2024
FIR No. 211/2011
u/s 188 IPC
PS : Connaught Place
State vs. Arvind Gaur & Ors.
CR Case No. : 09/2024
CNR No. : DLCT12-000158-2024
Date of Offence : 29.11.2011
Date of Filing : 27.11.2012
Names and Details of
Accused Persons
: 1) Arvind Gaur
s/o Sri Nandan
r/o 1/5243, Balbir Nagar,
Gali No. 8, Shahdara,
Delhi.
2) Neeraj Kumar Pandey
s/o Deena Nath Pandey
r/o 259, Nirman
Apartments,
Mayur Vihar, Phase I,
Delhi.
3) Swati Maliwal
(Member of Parliament)
d/o Sangeeta Maliwal
r/o 3B, Tower A-2,
Central Govt. Type-VII
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 1/34
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Flats, DDU Marg,
New Delhi.
Offence Complained of : u/s 188 IPC
Plea of the Accused
Persons
: Pleaded not guilty
Final Order : Acquitted
Date of Judgment : 30.09.2024
J U D G M E N T
In 2011, a series of protests and demonstrations took place
across India, popularly known as “Anna Andolan” or “India Against
Corruption Movement”. Present prosecution has been launched against
the three accused persons on allegations of having led one of such
protests in violation of Prohibitory Order promulgated by the then ACP,
Connaught Place.
CASE OF THE PROSECUTION
1. In brief, prosecution has alleged that on 29.11.2011 (in short
the “date of offence” or “date of incident”) at around 4.45 p.m., the
accused persons Arvind Gaur, Neeraj Kumar Pandey and Swati Maliwal,
alongwith one Sachin Tomar (not chargesheeted) in furtherance of their
common intention led a group of 100-125 people and assembled at the
Inner Circle, Connaught Place, New Delhi (in short the “spot”), raising
anti-government and pro-Lok Pal Bill slogans despite there being a
Prohibitory Order u/s 144 of the Code of Criminal Procedure, 1973 (in
short “Cr.P.C.”) Ex.PW4/A2 dated 18.11.2011 issued by Mr. Hareesh
H.P., the then ACP, Connaught Place. Their protest caused traffic jam at
the Inner Circle, Connaught Place and despite being warned about such
order, they did not leave the spot thereby committing offence punishable
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u/s 188 rws 34 of the Indian Penal Code, 1860 (in short “IPC”).
2. On the basis of these allegations, the subject FIR dated
29.11.2011 Ex. PW11/B was lodged against the accused u/s 188 IPC on
the complaint/tehrir Ex. PW13/A of PW13 ASI Pramod. After
conclusion of the investigation, charge-sheet was filed against the
abovesaid three accused whilst the remaining alleged person Sachin
Tomar could not be identified and hence, not charge-sheeted.
NOTICE
3. After completion of necessary formalities, including supply
of copy of the charge-sheet and other documents to the accused u/s 207
Cr. P.C., notice of the accusation for the offence u/s 188 IPC was served
upon them u/s 251 Cr. P.C. to which they pleaded not guilty and
claimed trial.
4. For ready reference, the relvant extract of notice dated
21.10.2014, is reproduced herein-below:
“ ..that on 29.11.2011 at 04.45 pm onwards at Inner Circle, Connaught Place, New
Delhi you all alongwith your unknown associate in furtherance of you common
intention knowing that by an order U/s 144 Cr.P.C. promulgated by ACP, Connaught
Place who was lawfully empowered to promulgate such order disobeyed the
directions given in the said order which caused obstruction and annoyance to the
general public and thereby committed offence punishable u/s 188 IPC….”
TRIAL
Prosecution Evidence
5. In order to prove its case, prosecution examined a total of
thirteen witnesses of which twelve were police witnesses who were
posted at P.S. Connaught Place on the date of incident. The testimonies
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of prosecution witnesses are summarized herein below :
6. Beat Patrolling Officers at Palika Bazar : PW1 HC Tara
Chand, PW6 HC Balbir, PW8 Constable Narender Kumar and PW13 SI
(Retd.) Pramod Kumar were on patrolling duty at Palika Bazar on the
date of incident. Their testimonies are more or less similar. All the
accused were either correctly identified by these witnesses in the Court
or in some cases, their identity (accused Swati Maliwal) was not
disputed.
6.1 PW1 HC Tara Chand : He deposed that at about 04:45
P.M., some 100-125 people shouting anti -government, pro - Jan Lokpal
Bill and “Anna Hazare Zindabad” slogans gathered at Inner Circle,
Connaught Place and pasted banners and posters at the grill of Central
Park; that their presence caused traffic jam at the Inner and Outer Circle;
that they were asked to remove from the spot but they stated that they
will continue till 7 pm; that PW13 ASI Pramod sent information to the
SHO; that SHO and ACP arrived at the spot; that they tried to pursuade
the crowd to stop the demonstration but to no avail and that PW6 Ct.
Balbir recorded the video of the incident with a private camera.
6.1.1 He further deposed that during the demonstration, he came
to know the names of the leaders of protest as Arvind Gaur, Swati,
Sachin Tomar and Neeraj; that the ACP, Connaught Place gave Notice to
all the demonstrators about invocation of Order under Section 144
Cr.P.C. in the area despite which the demonstrators continued the protest
till 07:00 P.M./07:30 P.M.; that PW13 ASI Pramod prepared
tehrir/rukka; that the witness took the same to the Duty Officer for
registration of FIR; that the investigation was marked to PW13 ASI
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Pramod and that upon his return from the PS, he along-with IO ASI
Pramod Kumar searched for all accused persons at the spot and their
associates but all in vain.
6.2 PW6 HC Balbir : His testimony is on similar lines as PW1.
He also recorded the video of the incident at the request of IO/PW13 ASI
Pramod and on 30.11.2011, he handed over the CD of video Ex. PW4/A
prepared by him to the IO vide Seizure Memo Ex.PW6/A who sealed it
by using his seal “PK”. He also placed on record the Certificate u/s 65B
of the Indian Evidence Act in support of the CD vide Ex.PW4/B. He
identified the place of incident shown in the videos and also stated that
he had made the videos through his mobile phone.
6.3 PW8 Constable Narender Kumar : He has deposed on
similar lines as PW1 and PW6. He also deposed that he came to know
the names of all the accused persons as the leaders of the protest at the
spot.
6.4 PW13 SI (Retd.) Pramod Kumar : He is the Investigating
Officer ( or“IO”) of the case. His testimony is on similar lines as above
three witnesses. He deposed that he had tried to pacify the situation and
asked the three accused to leave the spot due to invocation of Section 144
Cr.P.C. in the area but that the protesters instead of paying heed to him,
sat on the road in front of Central Park causing traffic jam; that he
immediately shared this information through wireless to the other police
staff; that the then SHO of PS Connaught Place reached the spot along-
with his police staff; that the SHO also tried to make all accused persons
along-with their unknown associates understand that Section 144 Cr.P.C.
was imposed in the area and carrying out any kind of protest in the said
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area was illegal and they should leave but all in vain; that the incident
was videographed by PW6 Constable Balbir through his private
camera; that it was informed by all the protesters that they all will
continue their protest till 6.30-7.00 P.M.; that the then ACP, Connaught
Place also reached the spot along-with his police staff and he also made
the same plea to the crowd; that no physical force was used against the
demonstrators to remove them from the spot and that they all left the spot
at around 6.30-7.00 P.M. on their own.
6.4.1 He has also deposed about the procedural aspects of
investigation carried by him including preparation of rukka Ex.PW13/A;
handing over of the same to PW1 HC Tara Chand; return of PW1 to
the spot with the original rukka and copy of the FIR Ex.PW11/B;
preparation of site plan of the spot Ex.PW13/B; efforts made by him to
search all accused and their associates; recording of statements of
witnesses under section 161 Cr.P.C.; production of CD Ex.PW4/A
containing footage of the incident by PW6 Constable Balbir on
30.11.2011; its seizure vide Ex.PW6/A; obtaining Sanction under section
195 Cr.P.C. Ex.PW12/A; placing the Prohibitory Order Ex.PW4/A2
through which Section 144 Cr.P.C. was imposed in the area/spot on
record etc. He also deposed that he had tried to search for the accused
persons along-with other police staff but all in vain. He made all the three
accused Arvind Gaur, Neeraj Pandey and Swati Maliwal join the
investigation but the other offender Sachin Tomar could neither be
identified nor apprehended hence, was not chargesheeted.
7. Cross-Examination : All the above witnesses were duly
cross-examined on behalf of the accused persons. Their cross-
examination mainly harped around the fact that the Order under Section
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144 Cr.P.C. was not promulgated in the manner prescribed by law; that
the departure and arrival entries from and to the Police Station were not
on record; that the certificate under Section 65-B Evidence Act
Ex.PW4/B was not in compliance of requirements of law; that the
camera used for videographing the incident was not seized or sent to FSL
for examination; that the videos Ex.PW4/A otherwise also did not show
the presence of the accused persons at the spot or raising of any slogans
by public or any traffic jam caused at the spot; that there was no
documentary evidence to establish the presence of the accused persons at
the spot and they were not apprehended from the spot; that point no. 8 of
Prohibitory Order Ex.PW4/A2 which required the information to be
published through Press and by affixing copies on the Notice Board of
the Government Offices was not complied with; that the accused persons
had been wrongly identified in the Court at the behest of the IO; that the
accused had been falsely roped in for political reasons or their
involvement in social activism; that PW12 and PW13 had refreshed their
memory before coming to the Court; that the site plan Ex. PW13/B did
not show the place of traffic jam or the place of protest; that ACP being a
material witness was not examined and that all the police witnesses had
made material improvements in their respective testimonies.
8. Other Patrolling Officers : PW2, PW3, PW4 and PW5 are
the police officials who were present at different areas of Connaught
Place.
8.1 PW2 ASI Rakesh Kumar : On the date of incident, he was
present in the beat area of F-Block, Connaught Place. On hearing
slogans, he went to Central Park Gate, Inner Circle in front of Palika
Bazar, Connaught Place, New Delhi where he saw a gathering of 100-
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125 protesters and other police officials being already present. His
testimony on what happened on that day, is on similar lines as the other
police officials viz a viz the efforts made by PW13 ASI Pramod to
disperse the crowd; information being given to the crowd about
proclamation issued under Section 144 Cr.P.C.; arrival of ACP and SHO
at the spot etc. He named accused Arvind Gaur and Swati Maliwal being
part of the protest. He also deposed that the police officials detained 3-4
unknown protesters. He correctly identified the accused no.1 and 2 in
the Court whereas the identity of accused no. 3 Swati Maliwal was
not disputed.
8.2 PW3 SI Ashok Kumar : He was present in the beat area of
A Block, Connaught Place and has deposed on same lines as PW2
regarding the events that transpired on the date of incident i.e. including
detention of 3-4 protesters by the police officials. He named Arvind
Gaur, Neeraj and Swati Maliwal alongwith Sachin Tomar as the
protesters and identified Arvind Gaur and Neeraj in the Court
whereas the identity of accused no. 3 Swati Maliwal was not
disputed.
Both PW2 and PW3 were duly cross-examined.
8.3 PW4 HC Ajay Panwar : He was on beat patrolling duty at
A Block, Connaught Place on the date of incident and has deposed on
similar lines as PW1 and PW2. He further deposed that the protesters sat
on the road of the Inner Circle, Connaught Place causing huge traffic
jam. After watching the five video clips from the CD that was apparently
prepared by PW6 HC Balbir he identified the spot and the CD was
exhibited as Ex.PW4/A. He correctly identified the accused in the
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Court.
8.3.1 During his cross-examination, the witness deposed that the
police officials were giving warning to the protesters on loud speakers
and admitted that the same was not stated in his statement u/s 161 Cr.P.C.
He also stated that he could not say and later on even admitted, that
written warning was not displayed on the spot about imposition of
section 144 Cr.P.C. in the area. He also admitted that no person was
arrested from the spot.
8.4 PW5 SI Jai Singh : He was on beat patrolling duty in the
area of Regal Cinema and Pind Balluchi Restaurant, Connaught Place.
He deposed on similar lines as PW4. He deposed that all the accused
persons sat on the road of Inner Circle, Connaught Place and continued
their protest due to which the road at Inner Circle causing traffic jam in
the area. He named all the accused persons as the leaders of the protest
and correctly identified them in the Court.
8.4.1 During his cross-examination, the witness deposed that IO
had giving warning to the protesters verbally in high pitched voice. He
also admitted that no written warning was displayed on the spot about
imposition of section 144 Cr.P.C. in the area. He also admitted that no
person was arrested from the spot.
9. Other Police Officials
9.1 PW9 Constable Pradeep : He was conducting the duty of
operator and was attached with the SHO PS Connaught Place on the date
of incident when around 5.00 P.M., he received a wireless message
regarding the gathering of 100-150 people at Gate No.1 of Palika Bazar
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 9/34
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at Inner Circle, Connaught Place and at the Main Entrance, Central Park,
Connaught Place. He shared this information with the then SHO who
immediately moved towards the above-said spot. His remaining
testimony is on similar lines as other police officials/witnesses as to what
happened thereafter. He identified accused Arvind Gaur in the Court but
failed to identify accused no. 2 Neeraj Kumar Pandey citing lapse of
time. The identity of accused no. 3 Swati Maliwal was not disputed.
9.1.1 During his cross-examination, the witness deposed that SHO
had informed the gathering about imposition of Section 144 Cr.P.C. in
the area with the help of a loudspeaker while the other police officials
had informed the gathering by going to them individually. He further
stated that police officials had shown the banner displaying the
imposition of Section 144 Cr.P.C. to the crowd after taking the same out
of the police vehicle but admitted that no such banner was seized in his
presence. He admitted that he had not stated such facts in his statement
u/s 161 Cr.P.C or in his examination -in -chief.
9.2 PW10 ASI Dinesh Kumar : He produced Ex.PW10/A, the
destruction Order no. 3404-3473 issued by the then Dy. Commissioner,
New Delhi District viz a viz the Prohibitory Order under Section 144
Cr.P.C.
9.3 PW11 Retired ASI Nepal Singh : On 29.11.2011, he was
posted at PS Connaught Place as Duty Officer. He deposed that he
received rukka from PW1 HC Tara Chand and had prepared FIR
Ex.PW11/B (OSR). He also placed supporting Certificate under Section
65-B of Indian Evidence Act vide Ex.PW11/C on record.
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10. SHO PS Connaught Place
10.1 PW12 (Retired) ACP Sukhdev Singh : He was the SHO
PS Connaught Place on the date of incident. He deposed that at about
5:05 PM, he was on patrolling duty in the area of Connaught Place
along-with other police staff and on receipt of information through
wireless message, he immediately proceeded to Inner Circle, Connaught
Place. At the spot, he met ASI Pramod, Ct. Balbir, HC Tara Chand and
Ct. Narender who apprised him about the situation. He heard all accused
persons along-with their unknown associates raising anti-government and
pro-Anna Hazare slogans. He addressed all accused persons with the help
of a loud-hailer that section 144 of Cr.P.C. was imposed in the above-said
area i.e. Inner and Outer Circle of the Connaught Place and he also
showed all the protesters the banners carried by him regarding the above-
said imposition. He also found that one banner mentioning imposition of
Section 144 Cr.P.C. was already affixed/placed at Gate No. 1, Central
Park, Connaught Place, New Delhi. He indicated the said banner to all
accused persons along-with their unknown associates to inform them that
the gathering was illegal and their protest should end.
10.2 Despite his repeated warnings, all accused persons
continued their protest and did not leave the spot and rather blocked the
Inner Circle and also occupied the road and sat on the same, which
caused huge traffic jam. After some time, the then ACP of Connaught
Place also reached the spot and he also similarly addressed all the
accused persons but they continued their protest. PW6 Ct. Balbir
videographed the incident of protest. In the meantime, some of the
protesters spread in the area of Inner and Outer Circle. He deposed that
the accused were continuously addressing and instigating the gathering
and that the crowd left the spot at about 7:15 P.M.
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10.3 He identified the signatures of ACP Hareesh H.P. on the
notification under Section 144 of Cr.P.C. vide no. 1075-1103/SO/ACP,
Connaught Place dated 18.11.2011 Ex.PW4/A2 and on sanction under
Section 195 of Cr.P.C. dated 19.11.2012 Ex.PW12/A. He correctly
identified the accused.
11. Cross-Examination :- All the above-said witnesses were
duly cross-examined on behalf of the accused persons on similar lines as
the previous witnesses. In particular, PW12 Retd. ACP Sukhdev Singh
was questioned as to whether he had refreshed his memory before
entering the Court, to which the witness had answered in affirmative. His
remaining part of the cross-examination harped around the additions that
he had made in his examination-in-chief regarding use of loud-hailers for
making announcements regarding the Prohibitory Order; display of
banners in the area and instigation by the accused persons to the
gathering. He was also questioned regarding the non-fulfillment of the
requirement of law in using the prescribed methods for disseminating the
information of Section 144 Cr.P.C. The witness also admitted during
cross-examination that there was no material to show that the
promulgation of Section 144 Cr.P.C. was carried out as per law or as per
para no. 8 of Ex.PW4/A2. He also stated that PW6 Constable Balbir had
recorded the video of the incident through his mobile phone.
12. Public Witness
12.1 PW7 Durga Nand Jha : He is the only public witness
examined by the prosecution. He deposed that on the date of incident, he
was working as Counter Clerk at the pre-paid counter of auto and taxi
services, Palika Bazar; that on 29.11.2011, at about 5 p.m. around 100-
150 protesters gathered at Inner Circle, Central Park, Connaught Place
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who were protesting and supporting Anna Hazare protest and were also
supporting Jan Lokpal Bill; that due to the said protest, traffic jam was
caused at Inner Circle, Connaught Place; that the police officials arrived
at the spot and tried to convince the above-said supporters but all in vain;
that the said protest continued for about one hour and the said protest
ended after the police officials arrived at the spot.
12.1.1 The witness failed to identify either of the accused
persons in the Court citing lapse of time and as there was a huge
gathering of people on the date of incident. Leading questions as well
as cross-examination like questions were put to the witness by the Ld.
APP for the State.
12.1.2 During his cross-examination, he stated that he worked on
daily wages under the control, supervision and pay roll of Delhi Traffic
Police. He also stated that no announcement was made through speakers
nor any banner or poster reflecting the imposition of Section 144 Cr.P.C.
was affixed.
STATEMENT OF ACCUSED
13. After examination of all the Prosecution witnesses,
prosecution evidence was closed and statements of all accused persons
were recorded under Section 281 r/w/s 313 Cr. P.C. whereby all
incriminating evidence was put to them.
13.1 Accused stated that they were innocent and had been falsely
implicated in this case due to political reasons. In particular, accused
no.1 stated that he was a social activist and that he had been wrongly
identified for political reasons and had no role to play in the present case.
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Accused no. 2 on the other hand, denied his presence at the spot and
stated that he neither participated nor was involved in any of the alleged
protest. He also stated that there was no notice of promulgation of Order
under Section 144 Cr.P.C. and that the witnesses had falsely identified
him at the behest of the IO. Accused no. 3 also stated that she was a
social activist and a public figure and thus, had been identified by the
witnesses at the behest of the IO.
14. Despite opportunity, accused persons preferred not to lead
any evidence in their defence. Accordingly, DE was closed and matter
was fixed for final arguments.
ARGUMENTS
15. Ld. Counsels for the accused persons have more or less
addressed similar arguments. In short, it is argued that the prosecution
has miserably failed to establish the identity or presence of all the
accused persons at the spot; that the videography Ex.PW4/A has not
been proved as per law and the supporting Certificate u/s 65B Evidence
Act vide Ex.PW4/B is not in compliance of law; that the videos
otherwise also do not show the presence of either of the accused persons
at the spot; that there are only bald oral testimonies of police witnesses,
unsupported and uncorroborated by any documentary evidence against
the accused; that it is a case of selective prosecution where the
prosecution has deliberately left out from chargesheeting suspect Sachin
Tomar; that no investigation has been carried to establish the identity and
presence of the accused persons at the spot as apparent from testimony of
IO/PW13 who admitted to not having noted down even the names of the
accused persons at the spot; that even Judicial Test Identification Parade
was not done to prove identification; that the concerned ACP Hareesh
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H.P. who issued the prohibitory Order has not being examined; that the
witnesses refreshed their memories outside the Court; that the Order
under Section 144 Cr.P.C. was not as per law and that there was no
imminent danger and that the ingredients of Section 188 IPC have not
been met.
15.1 Written arguments have also been filed on behalf of accused
no.1. Citations have been filed by all the accused persons.
15.2 Ld. APP for the State on the other hand has argued in favor
of the conviction of the accused persons. He has argued that all the
Prosecution witnesses have reiterated the entire evidence as brought in
the charge-sheet and identified the accused persons in the Court and
hence, on account of the consistent testimonies of the witnesses, the case
stands duly proved against the accused persons. Thus, on account of
Complaint of ACP under Section 195 Cr.P.C. Ex. PW12/A read with
Prohibitory Order Ex.PW4/A2 and uniformity in the testimonies of the
Prosecution witnesses, the guilt of the accused persons stand duly
established and hence, they should be convicted and given maximum
punishment.
CITATIONS
16. Ld. Counsels for the accused persons placed reliance on the
following judgments to buttress their arguments :
Accused no.1
S.No. Case Title Citation
1. Jeet Ram v State of Himachal MANU/HP/0091/2003
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Pradesh
2. Mahender Daulatram v State of
Maharashtra
MANU/MH/4790/2023
3. Ramlila Maidan incident v
Home Secretary, UOI
MANU/SC/0131/2012
4. Niharendu Dutt Majumdar v
Emperor
AIR 1939 Cal 1703
5. State v Rajender Pal Gautam &
Others
MANU/OT/0120/2022
6. Harbeer Singh v Sheeshpal (2016) 16 SCC 418
7. Ashok Vishnu Devare v State
of Maharashtra
(2004) 9 SCC 431
8. Baldev Singh v State of Punjab (2014) 12 SCC 473
9. Govindaraju v State (2012) 4 SCC 722
10. Takhaji Hiraji v Thakore
Kubersin Chamansing and Ors.
(2001) 6 SCC 145
Accused no. 2
S.No. Case Title Citation
1. Mazdoor Kisan Shakti
Sangathan v UOI and Anr.
(2018) 17 SCC 324
2. Bhoop Singh Tyagi v State 2002 (62) DRJ 870 (DB)
3. Ramlila Maidan incident v
Home Secretary, UOI
(2012) 5 SCC 1
4. Babulal Parate v State of
Maharashtra and Others
1961 SCC OnLine SC
48
Accused no. 3
S.No. Case Title Citation
1. Dr.Sunil Kumar Sambhudayal
Gupta and Ors.
Criminal Appeal no. 891
of 2004
2. Khushal Chand v The State
(NCT of Delhi)
Crl. Appeal no. 109 of
2008
3. Chandrapal Singh v State of
UP
2024: AHC : 12519
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 16/34
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4. M.S. Ahlawat v State of
Haryana and Another
(2000) 1 SCC 278
5. Standing Order no. 309 of the
Delhi Police
-
6. Arvind Kejriwal and Ors. v
Govt of NCT of Delhi
Criminal Revision No.
23/2021
Heard. Perused.
FINDINGS
17. To recapitulate, the case of the prosecution is that the
accused persons in furtherance of their common intention knowingly
contravened the Order u/s 144 Cr.P.C. Ex. PW4/A2 (hereinafter the
“Prohibitory Order”), by holding a protest with 100-125 people at the
Inner Circle, Connaught Place which caused traffic jam and annoyance to
the public. In order to prove its case, prosecution has examined some
thirteen witnesses, out of which twelve were police witnesses and one
was a public witness. All the witnesses were apparently present at the
spot and witnessed the incident.
17.1 Having gone through the record, I find certain pitfalls in the
case of the prosecution. Same can be broadly categorised as below:
A. Non-Communication of the Prohibitory Order
18. The order in question which is alleged to have been violated
by the accused persons was issued by Sh. Hareesh H.P., the then ACP ,
Sub-Division, Connaught Place bearing no. 1075-1103 SO-
ACP/Con.Place, dated 18.11.2011 Ex.PW4/A2. The order interalia
prohibited holding of any public meeting, processions, demonstrations &
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dharnas; assembly of 5 or more persons; carrying of banners, placards;
shouting of slogans etc. in any public place in the area and building
surrounded by Outer Circle, Connaught Place and was made effective for
a period of 32 days from 21.11.2011 till 22.12.2011 (incorrectly written
as 22.12.2012). It is alleged that by carrying the protest on 29.11.2011,
the accused persons violated the directions issued by the public servant
vide Ex. PW4/A2 and hence committed an offence u/s 188 r.w.s. 34
IPC.
18.1 The Prohibitory Order Ex. PW4/A2 was issued by invoking
Section 144 Cr.P.C. which allows the authorities mentioned therein to
issue order in urgent cases of nuisance or apprehended danger by
directing any person interalia to abstain from certain act etc. For ready
reference, the abovesaid provision is reproduced herein below:-
18.1.1 144 : Power to issue order in urgent cases of nuisance
or apprehended danger -
1. In cases where, in the opinion of a District Magistrate, a
Sub-divisional Magistrate or any other Executive
Magistrate specially empowered by the State Government
in this behalf, there is sufficient ground for proceeding
under this section and immediate prevention or speedy
remedy is desirable, such Magistrate may, by a written
order stating the material facts of the case and served in the
manner provided by section 134, direct any person to
abstain from a certain act or to take certain order with
respect to certain property in his possession or under his
management, if such Magistrate considers that such
direction is likely to prevent, or tends to prevent,
obstruction, annoyance or injury to any person lawfully
employed, or danger to human life, health or safely, or a
disturbance of the public tranquility, or a riot, or an affray.
2. An order under this section may, in cases of emergency or
in cases where the circumstances do not admit of the
serving in due time of a notice upon the person against
whom the order is directed, be passed Ex-parte.
3. An order under this section may be directed to a particular
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 18/34
-- 18 of 34 --
individual, or to persons residing in a particular place or
area, or to the public generally when frequenting or visiting
a particular place or area.
4. No order under this section shall remain in force for more
than two months from the making thereof;
Provided that, if the State Government considers it
necessary so to do for preventing danger to human life,
health or safety or for preventing a riot or any affray, it may,
by notification, direct that an order made by a Magistrate
under this section shall remain in force for such further
period not exceeding six months from the date on which the
order made by the Magistrate would have, but for such
order, expired, as it may specify in the said notification.
5. Any Magistrate may, either on his own motion or on the
application of any person aggrieved, rescind or alter any
order made under this section, by himself or any Magistrate
subordinate to him or by his predecessor-in-office.
6. The State Government may, either on its own motion or on
the application of any person aggrieved, rescind or alter any
order made by it under the proviso to Sub-Section (4).
7. Where an application under Sub-Section (5), or Sub-Section
(6) is received, the Magistrate, or the State Government, as
the case may be, shall afford to the applicant an early
opportunity of appearing before him or it, either in person
or by pleader and showing cause against the order, and if
the Magistrate or the State Government, as the case may be,
rejects the application wholly or in part, he or it shall record
in writing the reasons for so doing.
18.2 The consequences of disobedience of such order are
contained in Section 188 IPC. It states:
188 : Disobedience to Order duly Promulgated by Public
Servant -
Whoever, knowing that, by an order promulgated by a public
servant lawfully empowered to promulgate such order, he is
directed to abstain from a certain act, or to take certain order
with certain property in his possession or under his
management, disobeys such direction,
shall, if such disobedience causes or tends to cause
obstruction, annoyance or injury, or risk of obstruction,
annoyance or injury, to any persons lawfully employed, be
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 19/34
-- 19 of 34 --
punished with simple imprisonment for a term which may
extend to one month or with fine which may extend to two
hundred rupees, or with both;
and if such disobedience causes or tends to cause danger to
human life, health or safety, or causes or tends to cause a riot
or affray, 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.
Explanation.—It is not necessary that the offender should
intend to produce harm, or contemplate his disobedience as
likely to produce harm. It is sufficient that he knows of the
order which he disobeys, and that his disobedience produces,
or is likely to produce, harm.
18.3 In case titled “Manjit Kumar Singh v. State of Bihar
and Anr.”, 2010 (9) R.C.R. (Criminal) 749, the ingredients of Section
188 IPC were stated to be as -
(i) that there must be an order promulgated by a public servant;
(ii) that the public servant must have lawfully empowered to
promulgate such order;
(iii) that a person having knowledge of some order and directed by
such order (a) to abstain from a certain act, or (b) to take certain
order with; certain property in his possession or under his
management, has disobeyed such direction and
(iv) that such disobedience causes or tends to cause (i) obstruction,
annoyance, or injury, or risk of it, to any person lawfully employed,
or (ii) danger to human life, health or safety, or (iii) a riot or affray
etc.
18.4 The prosecution in the present case was launched on the
basis of the complaint/rukka of PW13 ASI Pramod Ex.PW13/A
complaining that the accused persons were leading a group of 100-125
people, raising slogans and carrying banners and had assembled at some
distance on the footpath of the Inner Circle, Connaught Place and despite
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 20/34
-- 20 of 34 --
repeated warnings from the IO, SHO as well as ACP about invocation of
Section 144 Cr.P.C. in the area, they did not leave the spot until 07:00
PM., causing traffic jam in the area. On the basis of these allegations,
FIR Ex. PW11/B u/s 188 IPC was registered. In order to attract the
offence u/s 188 IPC, it is necessary that the accused must have
“knowledge” of the Prohibitory Order. The order must be widely
published and must also be personally communicated to the accused.
Aforesaid manner of publication or service of order is provided u/s 134
Cr.P.C.
Section 134 . – Service or notification of order.
1. The order shall, if practicable, be served on the person
against whom it is made, in the manner herein provided
for service of a summons.
2. If such order cannot be so served, it shall be notified by
proclamation, published in such manner as the State
Government may, by rules, direct, and a copy thereof
shall be stuck up at such place or places as may be fittest
for conveying the information to such person.
18.5 Infact, there is also a Standing Order No. 309 issued by the
DCP (Headquarters) dated 31.01.2003 : Regulation of Processions
and Rules, which prescribes the mode of service of the order passed
under Section 144 Cr.P.C. It interalia states as follows :
XXXX
Arrangement at the place of demonstration should include
the following :
(i) Display of banner indicating promulgation of Section
144 Cr.P.C.
(ii) At least 2 video graphers be available one either side
of the demonstration to capture both demonstrators as
well as police response/action.
(iii) Loud hailers should be available.
(iv) Repeated use of PA system by a responsible officer-
appealing/advising the leaders and demonstrators to remain
peaceful and come forward for memorandum/deputation etc
or court arrest peacefully. Announcements should be
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 21/34
-- 21 of 34 --
videographed.
(v) If they do not follow appeal and turn violent declare the
assembly unlawfully on PA system and videograph.
(vi) Warning of PA System prior to sue of any kind of force
must be ensured and also videographed.
(vii) Announcement for injured to take them to hospital for
medical aid use of stretchers to carry the injured up to the
vehicle/ambulance etc and videographed.
(viii) In case of arrest/detention of MPs, MsLA, MsLC,
information to be given to concerned department, sepaker,
Lok Sabha Chairman, Rajya Sabha, Speaker Assembly by
quickest means both in writing and on wireless.
(ix) Special attention be paid while dealing with women’s
demonstrations only women police to take them.
(x) During registration of case evidence regarding use of
stone, lathis, dandas etc to be videographed and taken into
possession from the site.
18.6 It is the first and foremost defence of the accused that the
mandate of law has not been followed as far as the notification of the
order was concerned. Such objection appears to be correct when the
entire record is seen.
18.6.1 Except for bald oral statements of the police witnesses, there
is nothing on record to show as how the Order was communicated to the
public at large or the crowd that had gathered at the spot. Even though all
the above modes i.e. announcement through loud-hailers; use of PA
system; display of banners etc, for communication of the Prohibitory
Order had to be cumulatively followed in terms of Section 134 Cr.P.C.
and Standing Order No. 309, here there is no evidence to show that even
one of such modes were used for disseminating information about the
Order. The FIR Ex. PW11/B, which is the beginning point for the launch
of the prosecution against the accused persons, only states that the group
was told about the order by the police officials by standing in front of
them. Some of witnesses have also deposed that the IO and SHO either
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 22/34
-- 22 of 34 --
used high pitched voice or personally went to the crowd to inform them
about the Prohibitory Order. Even if such version is accepted to be
correct, the procedure I am afraid, is not as per the mandate of the law.
Although PW12 (Retd.) ACP Sukhdev Singh during his examination in
chief deposed that he had used loud hailers to address the gathering and
had also carried as well as seen display boards affixed at Central Park
regarding the imposition of Section 144 Cr.P.C. in the area, these
statements that have come up for the first time only during trial. There is
no reference of use of any such modes in the entire chargesheet let alone
any iota of evidence being produced in support thereof. Besides, there are
no photographs to show the presence of banners nor any seizure by the
IO. Therefore, the inclusion of such statements for the first time in the
examination-in-chief by the witness is an improvisation and appears to
be an afterthought.
18.6.2 It is also alleged by the defence that the Prohibitory Order
Ex. PW4/A2 was not issued in compliance of law as it did not reflect the
imminent danger that necessitated the issuance of such Order. Perusal of
Paras 2 & 3 of the impugned Order however records that in light of
reports of likelihood of protests etc. in the area which could cause
obstruction to traffic, danger to human safety and disturbance of public
tranquility, the order is issued to prevent danger to human life and
disturbance of public tranquility which prima facie reflects the
application of mind by the public servant in issuing such order. Still, it is
not sufficient that an Order u/s 144 Cr.P.C. is promulgated by the
concerned authority and there is a disobedience of such order. What is
imperative is that the accused must also have the knowledge of the order
promulgated by the public servant and the disobedience must lead to
consequences mentioned in section 188 IPC. It is mandatory and a pre-
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 23/34
-- 23 of 34 --
requisite, failing which the provisions of Section 188 IPC cannot be
attracted.
18.7 The compliance of the above provisions regarding
knowledge of the accused regarding the existence of the Order is strict
and has to be necessarily asserted and proved. No presumption of having
gained knowledge of the said order can be raised against or attributed to
the accused in the absence of its actual proof. Infact, para 8 of the Order
Ex. PW4/A2, itself required the notice to be “published for the
information of public through Press and by affixing copies on the boards
of all District Addl. CPs/ DCPs/ DCPs/Police Stations concerned...” etc.,
but no evidence has been brought on record to show that it was so
published and the same is also admitted by the witnesses during their
deposition in the Court.
18.8 In a similar but olden case titled “Niharendu Dutt
Majumdar and Ors. vs Emperor”, AIR 1939 Cal 703, the order of
conviction was set aside under section 188 IPC observing that the
communication of the order under section 144 CrPC had not been
established. Hon’ble Calcutta High Court had observed that:-
“4. On the second point, the learned Deputy Legal Remembrancer
conceded that he had no evidence apart from the evidence relating to
what took place at the actual meeting. It is said that the petitioners
knew of the order because they were told of it by the Sub-Inspector
while the meeting was actually going on. The evidence on the point is
extremely scanty and is to be found in the deposition of P.W. 1, P.W. 3
and P.W. 4. P.W. 1, the Sub-Inspector, says that he ordered the crowd to
disperse as they had assembled in violation of the order. The order was
given in an audible voice and part of the crowd actually dispersed. It is,
of course, difficult for him to say whether the order was audible to
other persons or not. P.W. 3, the Town Inspector, corroborates this
account of the action taken by the officer-in-charge of the thana and
adds that petitioner 1 and five other persons were addressing the
meeting at the time. P.W. 4 merely says that the police arrived and
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 24/34
-- 24 of 34 --
began to move people telling them that there was a Section 144 Order.
It appears therefore that his version is not quite the same. From this
evidence it is abundantly clear that no personal communication was
made to any of the petitioners. There is no distinct evidence as to the
relative positions of the petitioners and the thana officer in the crowd.
The learned Judge did not consider whether it necessarily follows that
petitioner 1 heard what was said by the Sub-Inspector at a time when
he himself was actually delivering a speech. The prosecution really did
not take sufficient trouble to see that the evidence on this very essential
point was sufficient and clear.”
“Before it can be said that the petitioners had knowledge of the order,
it must be shown that its terms were communicated to them. Instead of
doing that, the Sub-Inspector merely gave his own interpretation of it,
which is quite a different thing. We must accordingly accept the
contention raised in the second ground that there is no evidence upon
which it can be held that the petitioners had any knowledge of the
order. The rule is accordingly made absolute, the convictions and
sentences are set aside and the petitioners are discharged from their
bail.” (emphasis supplied).
18.9 Similarly, in the landmark Ramlila Maidan Case (supra),
the Hon’ble Apex Court observed that :-
“24. The gist of action under Section 144 is the urgency of the
situation, its efficacy in the likelihood of being able to prevent some
harmful occurrences. As it is possible to act absolutely and even ex
parte it is obvious that the emergency must be sudden and the
consequences sufficiently grave. Without it the exercise of power
would have no justification. It is not an ordinary power flowing
from administration but a power used in a judicial manner and
which can stand further judicial scrutiny in the need for the exercise
of the power, in its efficacy and in the extent of its application.”
“The section is directed against those who attempt to prevent the
exercise of legal rights by others or imperil the public safety and
health. If that be so the matter must fall within the restrictions
which the Constitution itself visualises as permissible in the interest
of public order, or in the interest of the general public. We may say,
however, that annoyance must assume sufficiently grave
proportions to bring the matter within interests of public order.”
“Section 144 Cr.P.C. is intended to serve public purpose and
protect public order. This power vested in the executive is to be
invoked after the satisfaction of the authority that there is need
for immediate prevention or that speedy remedy is desirable and
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 25/34
-- 25 of 34 --
directions as contemplated are necessary to protect the interest of
others or to prevent danger to human life, health or safety or
disturbance of public tranquility or a riot or an affray. These
features must co-exist at a given point of time in order to enable the
authority concerned to pass appropriate orders.”
“Moreover, an order under Section 144 Cr.P.C. being an order
which has a direct consequence of placing a restriction on the right
to freedom of speech and expression and right to assemble
peaceably, should be an order in writing and based upon material
facts of the case. This would be the requirement of law for more
than one reason. Firstly, it is an order placing a restriction upon the
fundamental rights of a citizen and, thus, may adversely affect the
interests of the parties, and secondly, under the provisions of the
Cr.P.C., such an order is revisable and is subject to judicial review.
Therefore, it will be appropriate that it must be an order in writing,
referring to the facts and stating the reasons for imposition of such
restriction.”
“Reasonable notice is a requirement of Section 144 of Code of
Criminal Procedure” (emphasis supplied)
18.10 Thus, it is mandatory for the prosecution to prove beyond
reasonable doubt that the Prohibitory Order was duly communicated to
the protesters and despite such communication, they violated the
directions given in such order and that their action led to one of the
consequences as mentioned in Section 188 IPC. Mere disobedience of
such order cannot be made punishable under section 188 IPC unless it is
also shown that such disobedience caused any obstruction, annoyance or
injury to a person lawfully employed. In this connection, only simplicitor
statements are made that the protest led to traffic jam in the area without
producing any corroborative piece of evidence in support. The only piece
of documentary evidence produced by the prosecution are few videos
apparently taken by PW6 Constable Balbir, which digital evidence does
not fulfill the requirements of law in so far as proof of secondary
evidence is concerned but which even when taken at its face value, do
not show any obstruction or traffic jam being caused in the area and
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 26/34
-- 26 of 34 --
therefore, does not favor the case of the prosecution.
18.11 Thus, it is held that there is a complete non-compliance of
the mandate of law regarding the manner of communication of the
Prohibitory Order and the ingredients required for attracting the offence
under Section 188 IPC have not been fulfilled.
B. Material Improvements and Contradictions in
Testimonies
19. Even though the reasons discussed above are sufficient to
discard the prosecution case, there are other inconsistencies and
loopholes in the case of the prosecution that may be discussed. Barring
PW7 Durganand Jha, all the witnesses in the present case are police
witnesses who were either already present at the spot or arrived later on
upon receipt of information of the protest. Their statements recorded u/s
161 Cr.P.C. are cyclostyled which they have more or less reiterated in
their testimonies in the Court barring a few exceptions which may be
noted.
19.1 The witnesses that were examined by the prosecution in the
beginning such as PW1 HC Tara Chand; PW2 ASI Rakesh Kumar &
PW3 SI Ashok Kumar, deposed nothing in their examination-in-chief
regarding the use of any of the prescribed modes such as loud hailer;
display through banner etc., for communication of the Prohibitory Order
to the public. They simply stated that the crowd was asked to stop the
demonstration so as not to cause traffic jam (see testimony of PW1) and
that the SHO and ACP informed the protestors personally that the
proclamation u/s 144 Cr.P.C. had been issued in the area (see testimonies
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 27/34
-- 27 of 34 --
of PW2, PW3 & PW4). However, once the questions on this aspect i.e.
regarding the manner in which the Prohibitory Order was made known to
the public, started recurring in cross-examination, all the subsequently
examined police witnesses started improving their versions over their
previous statements recorded u/s 161 Cr.P.C.
19.2 In particular, PW4, PW6 PW8, PW9 improved their
versions by stating in their cross-examination that loudspeakers and/or
banners displaying imposition of Section 144 Cr.P.C. were also used,
even though such assertions were completely missing in their previous
statements. The biggest improvisation, however, has occurred in the
testimony of PW12 (Retd.) ACP Sukhdev Singh, the then SHO of PS
Connaught Place who in his examination -in - chief itself deposed that he
had used loud-hailers and showed banners to the protesters for informing
them about the imposition of prohibitory order in the area and that he
also saw banners being affixed at the Gate of Central Park, which
assertions were neither made in his statement u/s 161 Cr.P.C. or in any
other document filed with the chargesheet. The improvements made by
witnesses at such a critical juncture are material in nature and go to the
root of the matter because the proper communication of the Order u/s
144 Cr.P.C. was one of the quintessential requirements for attracting the
offence u/s 188 IPC and the accused have time and again questioned the
manner of communication of the Order to the public.
19.3 The fact that such improvements were made to fill lapses in
the prosecution case, is also evidenced from the fact that there is no
documentary evidence on record to show that the Standing Order No.
309 of the Delhi Police requiring interalia display of banner indicating
promulgation of Section 144 Cr.P.C.; presence of at least 2 videographers
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 28/34
-- 28 of 34 --
to capture the incident; availability of loud-hailer; repeated use of PA
system by officer etc., or mode prescribed u/s 134 Cr.P.C. was followed.
19.4 There is no denying the general principle that minor
contradictions or improvements that do not go affect the merits of the
case, should not be made the basis of discrediting a witness. However,
when such improvements not only appear to be material but also an
attempt to create evidence, they should be seen with circumspect and
testimony of such a nature is not worthy of relied upon. In the case at
hand, the inclusion of such statements in the deposition of witnesses who
have been examined later in point of time and towards the end of the
trial, leaves no doubt that they are an an after-thought and an attempt to
fill the lacunas in the case.
19.5 Apart from the improvements made by the above-said
witnesses in respect of the mode of communication of the Prohibitory
Order, there is also contradiction in the testimony of witnesses regarding
the device which was used for recording video of the incident. As per the
prosecution, PW6 Ct. Balbir recorded video through his private camera,
the contents of which wer later transferred to a CD vide Ex. PW4/A.
Same is reiterated by PW1 and IO/ PW13 in their respective testimonies.
However, in his own testimony, PW6 deposed that he had recorded the
video with his “mobile phone” and had then trannsferred it to a CD. This
statement is not only in contradiction to statement of other witnesses who
supposedly saw him recording the incident as well as the FIR, but also
the own previous statement of the witness u/s 161 Cr.P.C. where he had
stated that he recorded the video through a private camera. The
inconsistency in statements has not been explained by the prosecution
and it makes the Certificate u/s 65B, Evidence Act Ex. PW4/B where it
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 29/34
-- 29 of 34 --
is certified that the video was recorded through mobile phone also
unworthy of being relied upon, among other reasons.
19.6 Infact, the Certificate Ex. PW4/B is otherwise also cryptic
in nature as it does not explain the chain of custody of the device in
which the video was recorded nor was it sent to the FSL so as to rule out
the possibility of tampering; the details of the computer system in which
it was transferred etc., whereby the CD Ex.PW4/A is otherwise also
inadmissible.
20. In crux, all the police witnesses appear to be interested
witnesses in the case. They have either materially improved their
versions during trial or in some cases, given contradictory statements
(such as PW6). The substantial improvements made by the witnesses
over their statements u/s 161 Cr.P.C. do not inspire confidence and make
their testimonies unworthy of being relied upon.
C. Failure to Establish Identity of the Accused
21. Any fact which helps establish identity of a thing or person
which would substantially help in adjudicating the case becomes relevant
in evidence. There is no restriction on facts that may be given or the
mode through which the identity of the person may be established in the
Court. To connect the accused with the alleged crime, the prosecution has
alleged that the names of the accused persons were ascertained at the
spot itself whereby they have been specifically named in the FIR.
Almost all the police witnesses have identified the accused persons in the
Court as being part of the protest or “leaders” of the protest on the date of
incident. However, it is a matter of record that none of them was arrested
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 30/34
-- 30 of 34 --
from the spot. Same is reiterated in the testimonies of IO/PW13 ASI
Pramod Kumar and PW1 HC Tara Chand who stated that after the
registration of FIR, they went to the spot and searched for the accused
but all in vain. Yet, somehow, the IO was able to join the accused during
investigation.
21.1 Nothing has come on record as to what steps were taken and
what efforts were made by the IO to establish the identity of the accused
before chargesheeting them in the case, considering that they were not
apprehended from the spot. It is not alleged that the details of the
protesters, more specifically the accused persons, were noted down by
the IO or any other police official at the spot itself. It is also not alleged
that the accused persons were known to the police from before enabling
them to identify them later. Apparently, notice u/s 41A Cr.P.C. was also
not served upon them. Thus, there is no documentary evidence to
establish either the presence or identity of the accused at the spot. The
only documentary piece of evidence which could have thrown some light
viz a viz the presence of the accused at the spot were the videos Ex.
PW4/A which were allegedly taken by PW6 Ct. Balbir at the spot, which
are already held to be inadmissible and unreliable above. Even otherwise,
the videos do not show the presence of either of the accused at the spot
and only show crowd holding placards at the footpath and admittedly,
none of the accused can be seen in such videos. This then begs the
question as to how the police were able to identify the accused as being
part of the crowd in the absence of any prior information about them. The
entire charge-sheet is totally silent on this aspect of the investigation as
also admitted by the IO during his cross-examination.
21.2 In any criminal proceedings, establishing the identity of the
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 31/34
-- 31 of 34 --
accused in connection with the crime is one of the most crucial aspects
for proving the case. Even though the police officials have unanimously
identified the accused persons as being present at the spot in their
respective testimonies, considering the lapse of time which is almost 12-
13 years from the date of the purported offence till the commencement of
deposition of majority of the police witnesses in the Court, by which time
it is only natural for anyone to forget the faces of persons who are not
known to them from before especially considering the huge number of
gathering that was involved, the credibility of the witnesses on the point
of identification in the Court becomes questionable.
21.3 The Court is cognizant of the fact that the testimony of a
police witness is not to be discarded merely because they have an interest
in the case, here what is noteworthy is that the only independent witness
PW7 Durga Nand Jha, who appeared from the side of the prosecution,
has failed to identify the accused persons in the Court citing lapse of
time. Thus, in the given circumstances and in the absence of any
independent corroboration regarding the identity of the accused persons
and also the loopholes in the investigation where nothing has been
brought on record to show as to how the IO was able to connect the
accused with the crime, I do not find the testimonies of the police
witnesses on this aspect as worthy of being relied upon.
21.4 Thus, it is held that the quintessential link connecting the
accused with the crime is missing in the case and the prosecution has
failed to establish the presence of the accused at the alleged crime scene.
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 32/34
-- 32 of 34 --
Other objections:
22. Other than above, the defence has also raised some more
objections in the case. One such objection being that the witnesses
particularly the SHO PW12 and IO PW13 refreshed their memory before
entering the Court which was admitted by them during their cross-
examination and thus, they are tutored witnesses. Further, the judicial
Test Identification Parade (TIP) of none of the accused persons was
carried out.
22.1 TIP is not a sine qua non for identification of the accused in
every case and there are other ways also by which identity can be
established. In any case, the faulty nature of the investigation in regard to
the identification and establishing presence of the accused persons at the
spot and the credibility of the witnesses on the aspect of identification of
the accused in the Court have already been discussed above in favor of
the accused. Therefore, the objections raised by the defence in this regard
have no bearing in changing the ultimate fate of the case.
CONCLUSION
23. To sum up, in order to prove its case, first and foremost the
prosecution was required to show that the order was promulgated in the
manner prescribed by law and the accused persons had knowledge of the
Prohibitory Order despite which they disobeyed the same. Same is
lacking in the present case. Infact, most of the witnesses, including the
public witness PW7, have admitted during their cross-examination that
such directions were not followed. Thus, besides the materially improved
bald testimonies of some of the police witnesses which are held to be
unreliable, prosecution has not produced even an iota of evidence to
FIR No. 211/2011, PS : Connaught Place State vs. Arvind Gaur & ors. Page 33/34
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show that the mandate of law particularly, Section 134 Cr.P.C. and the
Standing Order No. 309 of the Delhi Police requiring interalia display of
banner indicating promulgation of Section 144 Cr.P.C.; presence of
atleast 2 videographers to capture the incident; availability of loud-hailer;
repeated use of PA system by officer etc., was followed whereby offence
u/s 188 IPC is not made out. Besides, the prosecution has also not been
able to establish the presence of the accused at the spot beyond
reasonable doubt, the benefit of which has to be granted to the accused.
23.1 The burden of proving its case always lies upon the
prosecution and the guilt of the accused has be proved beyond reasonable
doubt in every case.
For the reasons assigned hereinabove, the prosecution has
miserably failed to prove its case whereby all the accused namely Arvind
Gaur, Neeraj Kumar Pandey and Swati Maliwal stand acquitted of
the offence u/s 188/34 IPC.
Accused persons to furnish bail bonds in terms of Section
437A Cr.P.C.
Announced in the open Court.
(Divya Malhotra)
ACJM-01/RADC/New Delhi
30.09.2024
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