Delhi District Court
Manoj Gupta vs State (Nct Of Delhi) on 17 July, 2018
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA
ASJ/SPECIAL JUDGE, CBI02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
Cr. Revision No. 166/18
In the matter of:
Manoj Gupta
S/o Sh. K.C. Gupta,
R/o E904 CR Park,
New Delhi.
....Petitioner.
Versus
State (NCT of Delhi)
.....Respondent.
Date of Institution : 16.05.2018
Date of Arguments : 16.07.2018
Date of Decision : 17.07.2018
AND
Cr. Revision No. 167/18
In the matter of:
Anil Atreey,
S/o Lt. Sh. B.D. Sharma,
R/o B3/24, Janakpuri,
Delhi
CR Nos. 166/18 & 167/18
1 of 15
07.01.2017
....Petitioner.
Versus
State (NCT of Delhi)
.....Respondent.
Date of Institution : 16.05.2018
Date of Arguments : 16.07.2018
Date of Decision : 17.07.2018
JUDGMENT
1. Vide this common judgment, I shall decide revision petitions against the order dated 19.01.2018 and 23.04.2018 passed by Ld. MM. Vide order dated 19.01.2018, Ld. MM has ordered to frame charge against the petitioners and vide order dated 23.04.2018 charges under Sections 186/353/332/506/34 IPC and u/s. 341/34 IPC were framed against the petitioners. Both the revision petitions bearing Nos. 166/18 & 167/18 are being decided together as both revision petitions are arising out of same orders.
2. Aggrieved by orders dated 19.01.2018 & 23.04.2018 the petitioners have filed the revision petitions on the grounds that orders are bad in law. The continuance of the trial in the present case is an utter abuse of the process of the Court. Ld. MM has arbitrarily and mechanically passed the CR Nos. 166/18 & 167/18 2 of 15 07.01.2017 impugned orders without application of judicial mind. Ld. MM did not appreciate the contentions raised by Ld. counsel for the petitioners at the time of arguments on the point of charge. Ld. Trial Court erred in not appreciating that FIR No. 0265/05 was registered on the complaint given by the complainant Sh. B.P. Thapliyal against the petitioners and Ld. MM has taken cognizance on 06.10.2006. As per Section 195 of the Cr.P.C there is complete bar for taking cognizance of an offence punishable under Section 186 IPC in the absence of a proper written complaint by the public servant concerned or of some other person to whom he is administratively subordinate. The cognizance in the present case has been taken erroneously. The instant case has been culminated on the police report i.e. after the registration of the FIR and filing of the chargesheet, so the mandatory provision u/s. 195 Cr.P.C has not been complied with. Ld. MM has over looked the fact that a bare reading of section 195 Cr.P.C makes it ample clear that for a court to take cognizance of an offence punishable u/s. 186 IPC, the precondition is a written complaint to be filed by the public servant. Ld. Trial Court did not appreciate that there is no specific allegation against the petitioner and there is nothing on record to show that the petitioners herein voluntarily obstructed any public officer from discharging his official duties. Hence, no offence u/s. 186/353/332/341/506/34 IPC are made out against the petitioners. Ld. MM CR Nos. 166/18 & 167/18 3 of 15 07.01.2017 did not appreciate that the petitioners were never involved in the commission of the above said offence and they were present to furnish bail bonds as surety in the case titled as "DRI Vs. Rajeev Verma". Ld. Trial Court has failed to appreciate that on the complaint of Rajeev Verma an FIR has been registered on 24.05.2004 itself when Rajeev Verma was given beatings by the DRI officials and on the order of Ld. MM, FIR No. 0259/04 was registered against the DRI officials and the present FIR is registered to counter the FIR No. 0259/04. It is prayed that orders dated 19.01.2018 & 23.04.2018 be set aside and petitioners be discharged.
3. I have heard Ld. counsel for the petitioners and Ld. Addl. PP for the Sate at length and perused the records of this court as well as Trial Court very carefully.
4. Perusal of the Trial Court Record reveals that a complaint was filed to the Deputy Commissioner of Police by Sh. B.P. Thapliyal on 25.05.2004 and FIR No. 0265/04 dated 26.05.2004 was registered and the investigation was carried out and after investigation chargesheet was filed against the petitioners. It is an admitted fact that Rajiv Verma is Proclaimed Offender in the present case. Rajiv Verma has given a complaint dated 24.05.2004 to the court of Ld. ACMM and on the complaint of Rajiv Verma CR Nos. 166/18 & 167/18 4 of 15 07.01.2017 FIR was ordered to be registered against the officials of DRI on 24.05.2004 and the complaint was filed by B.P. Thapliyal on 25.05.2004.
5. It is vehemently contended by Ld. counsel for the petitioners that Ld. Trial Court cannot take cognizance in absence of a written complaint. He has heavily placed reliance on judgment passed by Hon'ble Apex Court of India, titled as "State of U.P. Vs. Mata Bhikha and Ors." In this judgment, it is held that " In some of the applications before me, the only offence is either section 186 or 188 of the IPC. In such type of cases, there should not be any difficulty in quashing the prosecution in view of the bar of section 195 of the Cr.P.C. The other offences are also there which are not covered under section 195 of the Cr.P.C. It is only in such cases, the court has to be careful. I have noticed that in some of the cases, there is a charge of section 353 of the IPC along with section 186 of the IPC. I am of the view that the very act of obstruction lies in the alleged assault and use of criminal force. In truth and substance, such an offence would fall in the category of sections mentioned in section 195 of the Code and it is not open to byepass its provisions even by choosing to prosecute under section 353 of the IPC only. There is no scope, in any of the matters in hand, having regard to CR Nos. 166/18 & 167/18 5 of 15 07.01.2017 the material on record, to split up the offences so as to avoid the bar of section 195 of the Cr.P.C as all the offences can be said to have been committed in the course of one transaction. All the offences can be said to have been an integral part of one transaction".
Ld. counsel for the petitioners has also placed reliance on judgment titled as "Ramji Bhikha Koli and Ors. Vs. Sate of Gujarat"
wherein, it is held that "It is undisputed that allegations made in the complaint against present petitioners include allegations in respect to offence made punishable under Section 186 of IPC. It is true that petitioners are also charged with other offences like offences made punishable under Sections 143, 147, 148, 149, 332, 333 and 307 of IPC, which are not covered under Section 195. However, it is well accepted proposition of law that where an accused commits some offence which are separate and distinct from those contained in Section 195; Section 195 will affect only the offences mentioned therein unless such other offences from an integral part of the same so as to amount to offences committed as a part of the same transaction. That in such case the other offences would also fall within the ambit of Section 195 of the Code. That in the instant case if the complaint recorded as FIR is read as a CR Nos. 166/18 & 167/18 6 of 15 07.01.2017 whole the petitioners have formed unlawful assembly with an object to resist a prohibition raid carried out by PSI O.M. Raval and his squad by using force with deadly weapons and causing rioting and even making an attempt on life of PSI O.M. Raval, in prosecution of the common object to prevent the raiding party to enter into the house of petitioner No. 1 and to carry out the raid in due discharge of their duty. That thereby entire prosecution of voluntary causing obstruction to the public servant by forming unlawful assembly with an object to resist the same and using deadly weapon to cause riot and even to make an attempt on life of the PSI who led the raiding party is a single transaction and integral part of the offence constituting and made punishable under section 186 of IPC. In other words, the offences charged against the petitioners under Sections 143, 147, 148, 149, 332, 333 and 307 of IPC, cannot be split from the complaint for a separate offence in the facts and circumstances of the present case, and the cognizance in respect to said offences are barred under Section 195(1)
(a)(i) of the Code, as held by Supreme Court in the case reported vide AIR 1984 SC 1108".
Ld. counsel for the petitioners has placed reliance on CR Nos. 166/18 & 167/18 7 of 15 07.01.2017 judgment titled as "Radhey Shyam Gupta Vs. The State" AIR 1968 342 passed by Hon'ble Allahabad High Court. Ld. counsel for the petitioners has also placed reliance on judgment titled as "Ashok and Ors. Vs. The State" passed by Hon'ble Madhya Pradesh High Court wherein, it is held that "The principle deducible from these cases is that when a complaint is made to a Court the facts should be considered as a whole and there should be no splitting up of the facts. Therefore, the Court is not entitled to disregard some of the facts and try an accused person for an offence which the remaining facts discloses. Considering the acts as a whole if they disclose an offence for which a special complaint is necessary under the provisions of Section 195 Cr.P.C., the Court cannot take cogniance of the case at all unless that special complaint has been filed".
Ld. counsel for the petitioners has also placed reliance on judgment titled as "Gurinder Singh & Anr. Vs. State" 1996(2) C.C. Cases 396 passed by Hon'ble High Court of Delhi wherein, it is held that "Now reverting to the second limb of Mr. Andley's argument that since learned Trial Court could not have taken cognizance under Section 186 IPC in the absence of a written complaint, hence the case as a whole CR Nos. 166/18 & 167/18 8 of 15 07.01.2017 must go. I find force in this submission of Mr. Andley. In similar circumstances the Madras High Court in the case of P. Btiraj v. K. Muniyandi, 1995 Criminal Rullings 219 held that if complainant ignored the provisions of Section 195 Cr.P.C., then the entire complaint must go and Court cannot take cognizance. In that eventuality the proceedings as a whole has to be quashed. In P. Btiraj's case complaint was filed consisting of two offences under Section 166 & 186 IPC. In the absence of a written complaint the Court opined that proceedings as a whole are liable to be quashed. Reference can also be made to the decision of Punjab & Haryana High Court in the case of Bhagat Ram v. State of Punjab 1991 (1) Crl. L. J. 246, where it has been observed that jurisdiction of the Court to take cognizance of an offence under Section 186, IPC, is barred except on a complaint in writing of the public officer concerned. Simple lodging of FIR at the police station which resulted in the prosecution of petitioner ultimately and framing of charge for the offences would not amount to filing of complaint in writing by public servant as stipulated under Section 195 Cr.P.C, are liable to be quashed. To the same extent are the observations of Madhya Pradesh High Court in the case of Ashok and Anr. v. The State CR Nos. 166/18 & 167/18 9 of 15 07.01.2017 1987 Crl. L. J. 1750 where the Court after analysing various provisions of the Code and in particular Section 195 and 461 (k) held that the trial for the offences under Sections 186/353, IPC, without a special complaint as required under Section 195(1)(a)(i) of Cr.P.C is illegal. When Magistrate acts in contravention of bar under Section 195 Cr.P.C the proceedings deserve to be quashed. Relying on these judgments Mr. Andley contended and to my mind, rightly so that since the precondition and mandatory requirement of a written complaint is missing in this case, therefore, the trial could could not have taken cognizance of the offences punishable under Section 186 & 353, IPC. Such cognizance under Section 186 could not have been taken then the FIR as a whole must be quashed". In this judgment, it is also held that "I think these observations and caution note spell out by the Supreme Court squarely apply to the facts of this case. On the facts of this case it would hardly be possible to separate the element of insult from the so called assault because the two are so interwoven in the episode, that they become merged one with the other. Hence by adopting and resorting to the device of Section 353 IPC which is a camouflage, the prosecution could not evade the provisions of Section 195 Cr.P.C in CR Nos. 166/18 & 167/18 10 of 15 07.01.2017 this case. The facts have to be considered as a whole. There cannot be splitting up of the facts. Considering the acts as a whole if these disclose an offence for which a special complaint is necessary under the provision of Section 195, Cr.P.C. the Court cannot take cognizance of the case at all unless that special complaint had been filed. In the instant case the very act of obstruction lies in the alleged assault and use of criminal force. In substance the offence in question would fall in the category of Section 195 Cr.P.C and it was not open to bypass its provisions even by choosing to prosecute under Section 353/506 IPC. Mr. R.D. Jolly as pointed above had conceded that charge on the facts of this case under Section 353 IPC is not made out because the public servant was not prevented or deterred in the discharge of his official duties".
Ld. Addl. PP for the State has placed reliance on judgments titled as "BasirUlHuq and Ors. vs. The State of West..." 1953 AIR 293 and "Durgacharan Naik and Ors. vs. State of Orissa" 1966 AIR 1775. I have perused these judgments with utmost regard.
6. In the present case, admittedly there are allegations against the petitioners that they threatened the DRI official and they were manhandled, CR Nos. 166/18 & 167/18 11 of 15 07.01.2017 pushed and threatened with dire consequences and they obstructed in discharge of official duty. Section 195 Cr.P.C reads as under: 195 (1) No Court shall take cognizance
(a) (i) of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence, in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub clause (i) or sub clause CR Nos. 166/18 & 167/18 12 of 15 07.01.2017
(ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
The complaint is defined under Section 2 (d) Cr.P.C, which reads as under: "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
7. In the present case after registration of FIR, the investigation report was filed under subsection 2 of Section 173 Cr.P.C. It is clear that for the offence u/s. 186 IPC, the Court cannot take cognizance on the basis of police report and the case should have proceeded as complaint case. In the present case chargesheet has been filed after registration of FIR and mandatory provisions of Section 195 Cr.P.C has not been fulfilled. The chargesheet has been filed under various sections including section 186 IPC and Ld. MM has wrongly taken the cognizance. In the present case no complaint has been filed under the provision of Section 195 Cr.P.C.
8. It is contended by Ld. Addl. PP for the State that Court can CR Nos. 166/18 & 167/18 13 of 15 07.01.2017 take cognizance of other offences under Section 186 IPC.
In view of the judgments relied upon by Ld. counsel for the petitioners, I am of the view that this contention of Ld. Addl. PP for the State carries no force.
I am of the view that from the facts given in the complaint dated 25.05.2004 given by B.P. Thapliyal, it would not be possible to separate the offences because the offences are inter woven with the entire episode so they become merged one with the other. I am of the view that there cannot be splitting up of the offences. Ld. MM was not empowered to take cognizance in absence of written complaint. Considering the acts as a whole if these discloses an offence for which a special complaint is necessary under the provision of Section 195, Cr.P.C., the Court cannot take cognizance of the case at all unless that special complaint had been filed.
9. In the instant case the very act of obstruction and manhandling is insufficient. I am of the view that the offence in question would fall into the category of Sec. 195 Cr.P.C and it is not open to by pass its provisions even by choosing to prosecute under Section u/s. 353/332/506/341/34 IPC. Since, in this case, the necessary compliance of Section 195 Cr.P.C has not been made, so the cognizance as well as the charge frame subsequently, vide impugned orders, is bad and unsustainable. The petitioners are entitled CR Nos. 166/18 & 167/18 14 of 15 07.01.2017 for an order of discharge in the present case. Accordingly, both the revision petitions are allowed and both the petitioners are discharged. Their bail bonds also stand discharged.
Trial Court record be sent back along with copy of common judgment. Revision files be consigned to Record Room, after necessary compliance.
Announced in Open Court (N.K. Malhotra)
on 17.07.2018. Spl. Judge, CBI02,
New Delhi District, PHC.
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2018.07.18
14:25:06
+0530
CR Nos. 166/18 & 167/18
15 of 15
07.01.2017