Delhi High Court
Mohd.Raffique @ Raffi vs State (Govt. Of Nct Of Delhi) on 16 December, 2015
Author: Ashutosh Kumar
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 604/2015
Date of decision: 16.12.2015
MOHD.RAFFIQUE @ RAFFI ..... Petitioner
Through: Mr.Vijay Kinger, Advocate.
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Ms.Rajni Gupta, APP.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J. (ORAL)
1. The petitioner assails the judgment and order dated
30.04.2015/29.05.2015 passed by the learned ACMM, North East,
Karkardooma Courts, Delhi convicting him in DD No.79B dated
29.03.2005 whereby the petitioner stands convicted for the offence
under Sections 53/116 of the Delhi Police Act, 1978 and sentenced to
undergo imprisonment for a period of six months. The petitioner is
also aggrieved by the order passed in Crl.Appeal No.13/2015, by the
Additional Sessions Judge-03 (NE), Karkardooma Courts, Delhi,
whereby the judgment and order of conviction and sentence against
the petitioner has been upheld.
2. The petitioner was externed from the limits of Delhi by order
dated 15.04.2004 passed by the Additional Deputy Commissioner of
Police, Central District, Delhi. By the aforesaid order, the petitioner
was directed to remove himself from the limits of NCT of Delhi for a
period of two years with effect from 20.04.2004. He was, however,
permitted to attend Courts at Delhi/New Delhi on all dates of hearing
and was directed to remove himself thereafter, to outside the limits of
NCT of Delhi. The relaxation was only for Court hours and for the
purposes of appearing and attending in cases before Courts of law.
3. The petitioner, within the period of externment, was found in
the territorial limits of NCT of Delhi. He was apprehended at Sulabh
Sauchalaya, D Block, Sriram Colony, Delhi. A kalandra was filed
under Section 53/116 of the Delhi Police Act against the petitioner in
the Court.
4. At the trial, the petitioner took the plea that the version of the
prosecution was not believable as the IO had no knowledge about him
being an externee. It was submitted by the petitioner during trial that
there was no credible information to the IO regarding his being an
externee. Certain material contradictions were also pointed out by the
petitioner in the prosecution version. Head Constable Netrapal Singh
(PW-1), ASI Mahesh Chand (PW-2), Constable Iqbaluddin (PW-3),
Constable Phool Singh (PW-4) and Head Constable Satish Kumar
(PW-5) are said to have given varying information regarding the
distance from where the secret informer had pointed out towards the
petitioner.
5. Mohd.Rafiq was examined on behalf of the petitioner during
trial as DW-1 who deposed that on 29.3.2005, three persons in civil
dress and one person in police uniform lifted him from his house on
the pretext that he was required at the police station for some enquiry
and he would be released in the evening. However, he came to know
later that the petitioner had been arrested. No public witness had been
made to join in the arrest proceeding.
6. The Trial Court rejected the aforesaid contentions of the
petitioner and held that the prosecution was successful in discharging
the onus and proving beyond all reasonable doubts that the petitioner
had violated the prohibitory orders. It was held by the Trial Court that
Head Constable Satish Kumar (PW-5) clearly deposed that he had
received credible secret information that the petitioner, who was an
externee, was roaming within the limits of Delhi and based on that
information, the petitioner was arrested. The Trial Court also did not
agree that the contradictions and variance in the deposition of
witnesses inter-se were of the nature which could discredit the
prosecution version. The broad features of the prosecution case, the
probabilities and other factors were taken into account by the Trial
Court in convicting the petitioner and sentencing him as aforesaid.
7. The Trial Court has rightly held that every discrepancy
occurring in the prosecution evidence does not merit consideration for
the purposes of throwing out the case.
8. ASI Mahesh Chand (PW-2) has proved the externment order
against the petitioner.
9. Mohd.Rafiq (DW-1) was not held to be reliable as he resided in
the same locality as that of the petitioner and, therefore, was
considered to be an interested witness. The date given by DW-1 when
the petitioner was taken away by the police, as claimed by the defence,
was 29.03.2005. However, when questioned, he could not even
remember the date of his own marriage. DW-1 was disbelieved for
another reason namely that if at all he had seen the occurrence, he
ought to have made a complaint before superior authorities.
10. The Trial Court rightly held that it is not a universal rule that in
case of non joining of private witnesses, the case becomes doubtful.
The Trial Court also reiterated the settled legal view that no infirmity
attaches to the testimony of police officials merely because they
belong to police force and that there is no rule of evidence which lays
down that conviction cannot be based on the evidence of police
officials, if found reliable. The rule of evidence only requires a greater
scrutiny of their evidence, which has been done in the present case.
11. On the same set of reasons, the Appellate Court affirmed and
upheld the findings of the Trial Court and dismissed the appeal of the
petitioner.
12. Thus, from the evidence of the five prosecution witnesses, it
stands established that the petitioner was found in the territorial limits
of NCT of Delhi despite externment order and that too without
seeking any permission from the competent authority.
13. No fault, therefore, could be found with the finding of guilt by
both the Courts below.
14. However, in the circumstances of the case, especially when the
occurrence has taken place in the year 2005, the sentence imposed
upon the petitioner requires to be reviewed.
15. Section 47 of the Delhi Police Act 1978 (hereinafter called the
'Act') provides powers to the police to direct a person, under certain
circumstances, to remove himself from Delhi or any part thereof.
16. Section 48 of the Act lists the offences in which if a person has
been convicted or there are reasons to believe that he is likely to again
engage himself in the commission of anyone of such offences then he
could be externed for a specified period. In case of failure of a person
to leave the area or entering in the area without permission after his
externment, that person becomes liable to be arrested or removed in
police custody to such place outside Delhi or any part thereof as
would be specified by the competent authority (Section 53 of the
Delhi Police Act, 1978). Section 54 of the aforesaid Act provides for
a temporary permission to such person to return to Delhi.
17. Section 116 of the Delhi Police Act, 1978 reads as follows:
"116. Penalty for entering without permission area from
which a person is directed to remove himself or
overstaying when permitted to return temporarily.- Without
prejudice to the power to arrest and remove a person in the
circumstances, and in the manner provided in section 53,
any person who-
(a) in contravention of a direction issued to him under
section 46, section 47 or section 48 enters or returns
without permission to Delhi, or any part thereof, as the case
may be, from which he was directed to remove himself; or
(b) enters or returns to Delhi or any part thereof with
permission granted under sub- section (1) of section 54, but
fails, contrary to the provisions thereof, to remove himself
outside such area at the expiry of the temporary period for
which he was permitted to enter or return or on the earlier
revocation of such permission, or having removed himself at
the expiry of such temporary period or on revocation of the
permission, enters or returns thereafter, without fresh
permission, shall, on conviction, be punished with
imprisonment for a term which shall not be less than six
months but which may extend to two years and shall also be
liable to fine: Provided that the court may, for adequate and
special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than six
months."
18. From the perusal of the Section 116 of the Act, it would appear
that the minimum sentence provided for violating the provisions of
Sections 46, 47 and 48 is six months, extendable upto 2 years and the
violator is also liable to be fined. The minimum quantum of sentence
fixed could further be reduced by any court provided adequate and
special reasons are recorded for imposing a sentence for a term which
is less than six months.
19. The petitioner has, prayed for reduction of the sentence on the
following grounds:
a. that he has not committed any offence from 2005 till date;
b. that he is the sole bread earner of his family;
c. that he has faced the agony the agony for almost 10 years;
d. that he has served the period of externment long time back;
and
e. that the petitioner has already remained in custody for more
than a month after the dismissal of the appeal by him against
the Trial Court judgment.
20. On a careful consideration of the mitigating circumstances listed
by the petitioner, this Court is of the opinion that sentencing the
petitioner for six months, especially in view of the aforesaid
circumstances, would be rather harsh.
21. There can be no dispute over the proposition that the sentence
has to be in proportion to the crime and the circumstances in which it
is committed. What any court of law has to be careful of, while
sentencing a wrongdoer, is that the sentence imposed ought not to be
the antithesis of the reformative approach of any penal legislation.
The sentencing process has to be, and justifiably so, tempered with
social/human considerations. The principle of just punishment is the
bedrock of sentencing in respect of a criminal offence. The
punishment should not be disproportionately excessive.
22. The judicial precedents in this regard suggest that relevant
consideration for sentencing would be the facts and circumstances in
each case; the nature of crime; the manner in which it was committed;
the conduct of the accused post commission of offence and all other
attending circumstances. All the above factors individually and
collectively need form part of the consideration of a court while
sentencing.
23. That the externment order was violated about 10 years ago and
that the petitioner completed his externment period coupled with the
fact that he has not been involved in any case thereafter, definitely
constitute sufficient mitigating circumstances to reduce the sentence
imposed upon him.
24. On consideration of the aforesaid facts, this Court is of the
opinion that the interests of justice would be subserved if the
petitioner is sentenced to the period of custody which he has already
undergone.
25. No good ground has been made out by the petitioner to differ
with the Trial Court as well as Appellate Court on the question of
conviction.
26. Thus, while maintaining the conviction, the sentence of the
petitioner is reduced to the period which he is already undergone in
custody.
27. The revision petition is partially allowed with the modification
in the sentence.
28. The petitioner is directed to be released from jail forthwith if
not wanted in any other case.
29. The petition is disposed of accordingly.
Crl.M.B. No. 7776/2015
1. In view of the petition having been partly allowed, no orders are
required to be passed in the instant application.
2. Dismissed as infructuous.
A copy of this order be sent to the Superintendent of the
concerned jail for information, compliance and record.
DECEMBER 16, 2015 ASHUTOSH KUMAR, J
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