Delhi District Court
State vs . Ram Shankar Kathuria And Others on 28 September, 2018
IN THE COURT OF SAMAR VISHAL,
Additional Chief Metropolitan Magistrate - II
Patiala House Courts, New Delhi
Cr Cases 43176/2016
STATE Vs. Ram Shankar Kathuria and Others
FIR No. 183 /2009
Police Station : Parliament Street
Date of Institution of Case : 13.12.2010
Judgment Reserved for : 10.09.2018
Date of Judgment : 28.09.2018
JUDGEMENT:
(a) The date of commission of offence : 11.12.2009
(b) The name of complainant : Inspector S.S. Malhan
(c) The name, parentage, of accused1) : Ram Shankar Kathuria S/o Late Sh Sone Lal
2) Purshotam Khandelwal S/o Sh Om Prakash Khandelwal
3) Naveen Jain S/o Late Sh Nemi Chand Jain
4) Uday Bhan Singh S/o Late Sh. Nihal Singh
5) Hardwar Dubey S/o Late Sh Uma Shankar Dubey
(d) The offence complained of : U/s 188 IPC.
(e) The plea of accused : Pleaded not guilty
FIR No. 183/2009 1/13
State vs Ram Shankar Kathuria & Ors.
(f) The final order : Acquitted
(g) The date of such order : 28.09.2018
JUDGMENT
1. The accused Ram Shankar Kathuria, Purshotam
Khandelwal, Naveen Jain, Hardwar Dubey and Uday Bhan Singh have been prosecuted for offence under section 188/34 of Indian Penal Code.
2. The FIR in this case was registered on the complaint Ex.PW2/A of inspector S.S. Malhan.
3. The case of the prosecution is that on 11.12.2009, the accused were leading a group of around 200 to 250 persons at Jantar Mantar, near Kothi No.7 to protest against the government of the day. The accused instigated the crowd to move towards Parliament House. inspector S.S.Malhan warned them not to march towards Parliament House as promulgation of an order under section 144 Cr.PC was in force in that area but they did not stop and continued to proceed. They reached till Ashoka Road, where they were controlled by the police force and then they were put in the buses and brought to police station Parliament Street. The allegations against the accused are that they violated the order under section 144 of the Code of Criminal Procedure and committed an offence under section 188 IPC which punishes FIR No. 183/2009 2/13 State vs Ram Shankar Kathuria & Ors.
violation of an order of a public servant.
4. After investigation of the case, the charge-sheet was filed against the accused Ram Shankar Kathuria, Purshotam Khandelwal, Naveen Jain, Hardwar Dubey and Uday Bhan Singh under section 188 of Indian Penal Code.
5. During trial notice under section 251 Cr.PC was framed against the accused for offence under section 188/34 of the Indian Penal Code to which they pleaded not guilty and claimed trial. After prosecution evidence, the accused were examined under section 313 Cr.P.C wherein all incrimination evidence were put to them. In answer to that they said that they are innocent and falsely implicated. Section 188 IPC has been invoked on the ground that the demonstrators violated the order of imposition of section 144 Cr.PC prohibiting the assembly of five or more persons and thereby committed an offence under section 188 IPC.
6. The prosecution has examined eleven witnesses in support of this case, out of which PW-2 inspector S.S. Malhan is the complainant and eye witness of the incident. The relevant portion of his testimony is reproduced herein as :-
On 11.12.2009, I was posted as Inspector (Investigation), at PS Connaught Place and was deployed for law and order duty at Jantar Mantar along-with other staff including ASI Kashi Ram, HC Harbans and some female staff. At FIR No. 183/2009 3/13 State vs Ram Shankar Kathuria & Ors.
about 2:00 pm, around 200 to 250 persons gathered at Jantar Mantar near Kothi No.7 and they started shouting slogans against the then government. Amongst them were Ram Shankar Kathuria, Uday Bhan, Mr. Naveen Jain, Hardwar Dubey, Purshottam Khandetwal, Jitender Pal, one more MLA whose game I do not remember today. All the aforesaid persons were leading the aforesaid group of 200 to 250 persons. The afore-said persons started instigating the crowd to move towards Parliament House. On seeing this, I requested the afore-said persons not to march towards Parliament House as romulgation u/s 144 Cr.PC was in force in that area but they did not stop and continued to proceed there. When they reached near Ashoka Road, where the barricades were put up, I again requested and warned them not to cross the barricades as promulgation U/s 144 Cr.P.C. was in force in that area but the afore-said leaders did not paid any heed to my request and continued instigating the crowd to cross the barricades. The crowd along-with the aforesaid leaders forcefully removed the barricades and the proceeded towards the Parliament House. I immediately gave a wireless message to the Control Room regarding the said incident. As soon as they reached the next round about near PS Parliament Street, where extra force was deployed and some barricades were also put along-with some buses. There, the crowd was controlled by the force and FIR No. 183/2009 4/13 State vs Ram Shankar Kathuria & Ors.
they were put in the afore-said buses and were taken to PS Parliament Street. Thereafter, about 3:40 pm, I prepared a rukka in my own hand writing, which is now Ex.PW-2/A bearing my signatures at point B. I gave the said rukka to the DO who registered the case.
7. Further PW-4 ASI Kansi Ram, PW-3 HC Kishan Dutt, PW-4 Rtd ASI Kashi Ram, Constable Jyoti, Rtd HC Baleshwar, Ct. Yogender Singh are other eye witnesses of the incident. Their combined testimony shows that the accused who were the leaders of Bhartiya Janta Party were heading demonstration of around 200/250 party workers on Jantar Mantar. They moved ahead from that place and reached at Ashoka Road just before Patel Chowk circle where they were detained for violation of the prohibitory orders under section 144 Cr.PC. The place at point A shown in the site plan Ex.PW2/B is the place where Inspector S.S. Malhan gave warning to the protesters and place B in the same site plan is the place from where they were controlled and detained. It is clear that the prohibitory orders were not in force at Jantar Mantar where they assembled and in fact a document placed on record by the prosecution shows that the police had advance information about this protest, the permission for which was not denied. The first defence raised on behalf of accused is that the accused did not had the knowledge of the prohibitory orders. In this regard the witness of prosecution says that Inspector S.S. Malhan had warned the protesters about the prohibitory orders despite that FIR No. 183/2009 5/13 State vs Ram Shankar Kathuria & Ors.
they continued and had to be detained. On going through the testimony of inspector S.S. Malhan it is not clear that how he addressed a mob of around 250 persons and communicated them about the prohibitory orders. The other witnesses say that inspector S.S. Malhan has used a public address system but the testimony inspector S.S. Malhan is silent in this respect. The site plan shows that these accused alongwith other demonstrators were detained after they covered some distance, therefore, it can be presumed that the mob was peacefully controlled and protest terminated after sometime of their becoming aware of the prohibitory orders. It is true that they moved some distance in that process and that may be despite knowing the prohibitory orders but it is also true that they were not aware of the prohibitory orders at Jantar Mantar where they were initially assembled. It is not clear that these accused were categorically communicated about the prohibitory order specifically as out of around 250 persons, only five have been made accused in this case. The testimony of witnesses shows that the information / warning of prohibitory order was being given to the entire mob but there is nothing in the evidence that these accused specifically were made aware and despite that they continued with their procession. Knowledge of prohibitory order is a mandatory requirement before convicting some person for the violation of that order. In the present case, there were no banners / other written information to the demonstrators about the prohibitory orders. Even the videography of the demonstration was not done and therefore as far as FIR No. 183/2009 6/13 State vs Ram Shankar Kathuria & Ors.
knowledge of the accused regarding the prohibitory orders is concerned, the same is not proved beyond reasonable doubts.
8. In Anita Thakur & Ors vs Government of Jammu & Kashmir & Others (2016) 15 Supreme Court Cases 525 Hon'ble Supreme Court of India observed :-
"We can appreciate that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. The 'right to assemble' is beautifully captured in an eloquent statement that "an unarmed, peaceful protest procession in the land of 'salt satyagraha', fast- unto-death and 'do or die' is no jural anathema". It FIR No. 183/2009 7/13 State vs Ram Shankar Kathuria & Ors.
hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution."
9. In Himat Lal K. Shah vs Commissioner Of Police, (1973)1 Supreme Court Cases 227, it was observed by Hon'ble Supreme Court that :-
"Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens' right to meet face to face with others for the discussion of their ideas and problems-religious, political,, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. But assemblies face to face perform a function of vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is FIR No. 183/2009 8/13 State vs Ram Shankar Kathuria & Ors.
that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. Public streets are the 'natural' places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly."
10. In 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. Calcutta High Court has 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 FIR No. 183/2009 9/13 State vs Ram Shankar Kathuria & Ors.
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 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. Then in the second place the order itself is not very happily worded. It does not clearly forbid attendance at a meeting or making speeches at a meeting. The use of the words 'no public meeting shall be held' seems to suggest something in connexion with the organization of a meeting. From the evidence it appears that the petitioner, Majumdar did nothing more than behave like FIR No. 183/2009 10/13 State vs Ram Shankar Kathuria & Ors.
a Hyde Park orator. The actual order is capable of more interpretation than one. 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."
11. In view of the law discussed above, it is not in dispute that the demonstrators, who have the fundamental right to assemble peacefully and without arms, were holding demonstration on the date of incident. The demonstration was peaceful as it is evident from the fact that the policemen controlling them had not suffered any kind of injury to them nor is there any damage to public property. Further, there is no allegation that the demonstrators resorted to any violence or were a general threat to the law and order problem. 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 directions as contemplated are necessary to protect FIR No. 183/2009 11/13 State vs Ram Shankar Kathuria & Ors.
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. The communication of the order is also an important factor. It is the only fact regarding communication in the case that the demonstrators were informed by inspector Malhan regarding imposition of prohibitory orders under section 144 Cr.PC when the protesters proceeded further. It is not clear how he alone gave this warning to such a large number of protesters. He has not said that public address system was used by him in giving of the warning. The case of the prosecution is that there were around 200/250 persons therefore what method was adopted by the police to warn and inform all of them about the fact of prohibition order is not clear except the oral information by Inspector Malhan. Whether the order of prohibition was read over to them or it was simply told to them that order under section 144 CrPC is in force and then what were its conditions. This is not in accordance with the Guidelines framed by the Police for execution of such orders. In Ramlla Maidans case (Re-Ramlila Maidan Incident (2012) 5 Supreme Court Cases 1), Hon'ble Supre Court has referred to an order of Delhi Police that is the Standing Order 309, which contemplates that there should be display of banner indicating promulgation of Section 144 Cr.P.C., repeated use of Public Address system by a responsible officer- appealing/advising the leaders and demonstrators to remain peaceful and come forward for memorandum, their deputation etc. or court arrest peacefully and requires such announcement to be videographed. It further contemplates that if the crowd does not FIR No. 183/2009 12/13 State vs Ram Shankar Kathuria & Ors.
follow the appeal and turns violent, then the assembly should be declared as unlawful on the PA System and the same should be videographed. Warning on PA system prior to use of any kind of force is to be ensured. But in the present case, there is hardly any compliance of this condition of this Standing Order.
12. Therefore the prosecution is not able to prove beyond reasonable doubts about the valid communication of the order under section 144 Cr.P.C to the accused which entitles them to be acquitted in this case. All accused are accordingly acquitted.
Announced in the open court this 28th day of September 2018 SAMAR VISHAL ACMM-II (New Delhi), PHC FIR No. 183/2009 13/13 State vs Ram Shankar Kathuria & Ors.