Delhi District Court
Shiv Gandhi vs State on 24 July, 2021
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 232/2020
1. Shiv Gandhi,
son of Sh. L.N Gandhi,
2. Luv Gandhi,
son of Sh. Shiv Gandhi,
3. Kush Gandhi,
son of Sh. Shiv Gandhi
All residents of
D-303, Defence Colony,
Varun Marg, New Delhi-110024 ....Revisionists.
Versus
State. .....Respondent.
Date of Institution : 28.07.2020.
Date of Arguments : 22.07.2021.
Date of Pronouncement : 24.07.2020.
ORDER
The present is a revision u/s 397 Cr.P.C filed against order on charge dated 20.01.2020 and framing of notice/ charge by the court of Ld. MM, PHC.
CR No. 232/20
(Parveen Singh)
Page No. 1 of 15 ASJ03/NDD/PHC: 24.07.2021
2. The brief facts as per the revision petition are, that on 02.09.2013, SI Daya Ram alongwith staff of PS Chanakya Puri was on anti bikers picket duty at Africa Avenue. At about 12.50 a.m, one Audi car bearing no. CH 01 AM 8751, which was being driven at a high speed, was indicated to stop but the driver did not stop the car. The said car was stopped after being chased by the staff. The driver was asked to produce the original documents of the car and driving license but the driver failed to produce the said documents. When SI Daya Ram told the driver that he would be challaned, the driver became aggressive and told the officer the he would teach a lesson to the police officer. Thereafter, driver called 100 no. and his family members also. After sometime, brother and father of the driver reached the spot and tried to snatch the pen and challan book from SI Daya Ram. The accused persons/ revisionists had assaulted, used abusive language and obstructed the police staff from discharging their duty. On these allegations, an FIR was lodged against the accused persons. After completion of investigation, chargesheet u/s 186/353/506(1)/34 IPC and u/s 3/181, 5/180, 32/177 MV Act was filed against the accused persons.
2. During the trial, vide order dated 20.01.2020, ld. Trial court passed an order on charge and framed charge u/s 186/34 IPC, 353/506 Part- 1/34 IPC against all the accused/ revisionists and charge u/s 3/181 and 32/177 MV Act against accused/ revisionist Luv Gandhi. Hence, the present revision petition.
3. The grounds taken in revision petition are, that the entire charge sheet is silent as to what were the exact abusive words used by the CR No. 232/20 (Parveen Singh) Page No. 2 of 15 ASJ03/NDD/PHC: 24.07.2021 revisionists. It is further submitted that with regard to section 353 IPC, hon'ble Court of Sh. Dharmesh Sharma, Ld. ASJ in his order dated 07.09.2013, while granting anticipatory bail, had observed that ingredients u/s 353 IPC were not present as it was a case of heated argument. That order has remained unchallenged and has attained finality. It is further submitted that the cognizance of the offence is bad in law as much as the specific offences have not been mentioned in the order. It is further submitted that the court has taken the cognizance of the complaint and not of the offences. It is a settled principle of law that provision of section 353 IPC is not within the ambit of section 195 (1) (a) (i) Cr.P.C and therefore the same cannot be a part of the complaint made by public servant. It is further submitted that the IO of the case had filed the statements recorded u/s 161 Cr.P.C on 17.04.2017 and the cognizance was taken on 10.06.2016. This shows that the cognizance of the offences was taken prior to the filing of the statement u/s 161 Cr.P.C. It is further submitted that the police ignored the complaints made by accused/ revisionist no. 1 which were made immediately after the alleged incident. On 04.09.2013, revisionist no. 1 had made a complaint to DCP also. Thus, the revisionist had already reported the matter to PS Chanakya Puri but the IO in the present case has not taken that into account. It is further submitted that the cognizance of all the offences is barred due to limitation. The date of alleged offence is 02.09.2013 and the date of filing charge-sheet and taking of cognizance is 10.06.2016. The complaint u/s 195 (1)(a) Cr.P.C is dated 19.01.2016 and it is with regard to the incident dated 02.09.2013. The complaint was to be filed within a year of the alleged CR No. 232/20 (Parveen Singh) Page No. 3 of 15 ASJ03/NDD/PHC: 24.07.2021 incident. However, it was filed after more than 2 - ½ years and thus, is barred by limitation. It is further submitted that addition of section 353 IPC is inconsequential as it is a separate offence and does not fall under the offences prescribed u/s 195 (1) (a) Cr.P.C. It is further submitted that in the present case, the procedure u/s 155 Cr.P.C was not followed and thus the charges u/s 186 cannot be framed. The police cannot investigate offence u/s 186 Cr.P.C without permission of the concerned magistrate. In this regard, reliance has been placed upon the judgment passed by Hon'ble Delhi High Court in Shiv Charan & Ors. v. State, Crl. MC No. 2668/2006. With regard to the offences under Motor Vehicle Act, it is submitted that the same are non cognizable. It is further submitted that the procedure followed in the present case is wholly unjustified and was not in accordance with law.
4. I have heard ld. counsel for revisionists as well as ld. Addl. PP for State and perused the record very carefully.
5. Ld. Counsel for revisionists has contended that first and foremost the charge-sheet was filed after the period of limitation and the Magistrate had taken cognizance in violation of section 468 Cr.P.C. as section 186 IPC carries punishment upto one year of imprisonment, thus, limitation period for taking cognizance of an offence under that section is one year. He has further contended that section 186 IPC is a non cognizable offence and the police could not have investigated this offence without prior permission of the Magistrate. He has further contended that no ingredients for offences u/s 353 IPC and 506 IPC are made out. These sections were only added so that police need not take permission of Magistrate for CR No. 232/20 (Parveen Singh) Page No. 4 of 15 ASJ03/NDD/PHC: 24.07.2021 investigating the alleged non cognizable offence u/s 186 IPC. He has further contended that there was no use of criminal force and the Magistrate had wrongly recorded in her order that accused had snatched the challan book of the complainant whereas, it was stated that there was only an attempt to snatch the challan book of the complainant. He has further contended that in the entire charge-sheet, no ingredients of section 506 IPC have been disclosed and thus, charge u/s 506 IPC could not have been framed. He has further contended that there is nothing in the entire charge-sheet to show that accused/ revisionists were acting in furtherance of common intention and thus, framing of charge against all the accused by using section 34 IPC is also bad in law.
6. Per contra, ld. Addl. PP has contended that accused Luv Gandhi was stopped by the police and asked to produce his driving license and registration documents of his vehicle but instead of doing so, he started arguing with the police official, threatened the police official, and even made a call to PCR and then also called his family members i.e. Shiv Gandhi and Kush Gandhi. Then they obstructed the public servant in execution of his duty when, they in furtherance of the common intention, snatched the pen of the complainant and also tried to snatch the challan book of the complainant. They had also threatened the police official/ complainant when they stated that they would have the complainant removed from his service and revisionist Luv Gandhi stated that he would implicate the complainant in a false case through his wife. Thereafter, when they fled from the spot, they did so in furtherance of the common intention CR No. 232/20 (Parveen Singh) Page No. 5 of 15 ASJ03/NDD/PHC: 24.07.2021 and by fleeing from the spot, they obstructed a public servant in execution of his duty.
7. I have considered the rival submissions.
8. The question of limitation is dependent upon which sections are attracted in the present case and against which of the accused. A bare perusal of the charge-sheet and statements of witnesses reveals that on the given day, the police had stopped revisionist/ accused Luv Gandhi and asked him to produce the documents of his vehicle and his driving license to which he stated that he did not have those documents. On being informed that he would be challaned, revisionist Luv Gandhi allegedly uttered, that he knew higher officers of police and would teach the complainant how to do his job. Thereafter, revisionist Luv Gandhi called the PCR and stated that police had surrounded him and they were not allowing him to go. He also called his father Shiv Gandhi and his brother Kush Gandhi. Revisionist Kush Gandhi snatched the pen of the complainant and tried to snatch the challan book of the complainant. Kush Gandhi then started abusing the complainant and stated that if he challaned, it would have bad consequences. In the meantime, Insp. Arvind arrived. Shiv Gandhi stated that the police could not challan him as they were freedom fighters and not the robbers. He further stated that they paid income tax to the Government of India from which they (police officers) receive their salaries. He further stated that he would had the complainant removed from his service even if he had to go to the High Court. During this time, Luv Gandhi stated that he had his wife with him and he would implicate the complainant in a false CR No. 232/20 (Parveen Singh) Page No. 6 of 15 ASJ03/NDD/PHC: 24.07.2021 case. They again started misbehaving with the police and without showing any documents, they made an excuse that they would show driving license and entire documents but first would want their father to sit in the car and then they all fled from that place.
9. The testimonies of all the witnesses are consistent for the aforesaid facts and are on aforesaid lines.
10. At this stage, the merits or the credibility of the testimonies are not to be considered but what is to be considered is what offences are made out when the testimonies are taken on their face value.
11. First we shall take section 353 IPC. Section 353 IPC is as under:-
353. Assault or criminal force to deter public servant from discharge of his duty.--Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
12. Therefore, as per the aforesaid provision an offence u/s 353 IPC is committed when a person assaults or uses criminal force upon a public servant who is doing his duty as such public servant and the assault is with the intention to prevent or deter that person from discharging his duty as such public servant.
13. 'Force' is defined u/s 349 IPC, which is as under:-
CR No. 232/20(Parveen Singh) Page No. 7 of 15 ASJ03/NDD/PHC: 24.07.2021
349. Force.--A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described.
14. 'Criminal Force' is defined u/s 350 IPC which is as under:-
350 Criminal Force: Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
15. Applying the principles of section 349 IPC and section 350 IPC when accused Kush Gandhi upon reaching the place of incident snatched pen of the complainant, he used force which resulted in change of the position of the pen as it was snatched from the complainant. This force as per the evidence was used to stop the complainant from challaning revisionist Luv Gandhi and thus, intent was to commit an offence to obstruct a public servant in discharge of his official duty. Thus, the act of snatching pen and an attempt to snatch the challan book was a use of criminal force by accused Kush Gandhi upon the IO in order to deter him from discharging his duty. At the same time, by such an act, he had voluntarily obstructed the public servant i.e. the complainant in discharging CR No. 232/20 (Parveen Singh) Page No. 8 of 15 ASJ03/NDD/PHC: 24.07.2021 his duty as he had stopped the public servant from challaning Luv Gandhi. Thus, I find that revisionist Kush Gandhi is liable to be charged for the offences punishable u/s 186 IPC and 353 IPC.
16. Once it has been found that prima facie there is a case for framing of charge u/s 186 IPC and 353 IPC, I find that the period of limitation for filing the charge-sheet and taking cognizance shall be governed by section 468 (2) (c) IPC and the period of limitation would be three years. Thus, the charge-sheet was filed within the period of limitation and the cognizance was also taken within the period of limitation.
17. Further I find that merely adding section 34 IPC would not suffice to frame charges u/s 186 IPC and 353 IPC against revisionist Luv Gandhi and Shiv Gandhi. Trite to say that the common intention can be framed at the spur of the moment. However, there is no evidence to suggest that even at the spur of the moment, revisionists had framed a common intention whereby revisionist Kush Gandhi had snatched pen of the complainant or tried to snatch the challan book. At the most, it can be an act done with the common purpose of protecting Luv Gandhi from challan. However, the common purpose does not mean that they were having the common intention whereby for an individual act committed by a person, all can be held vicariously liable. I accordingly find that Shiv Gandhi and Luv Gandhi are entitled to be discharged for offences punishable u/s 186 IPC and 353 IPC and accused Kush Gandhi is liable to be charged for offences punishable u/s 186 IPC and 353 IPC.
18. Coming onto section 506 IPC. All the accused have been CR No. 232/20 (Parveen Singh) Page No. 9 of 15 ASJ03/NDD/PHC: 24.07.2021 charged for an offence punishable u/s 506 r/w 34 IPC. The entire gamut of the allegations is, that initially revisionist Luv Gandhi had stated to the complainant that he knew higher police officers and he would teach the complainant how to do his job. The next part of the allegations is, that Kush Gandhi on reaching the spot started abusing the complainant and stated that if he challaned (sic), it could have bad consequences. He further allegedly stated that complainant would call his father and supporters but no one would come. The allegations against Shiv Gandhi are, that he had stated to the complainant that they were freedom fighters and not the robbers and they used to pay income tax to the government from which the complainant used to receive his salary. It is further alleged that Shiv Gandhi had stated that he would have the belt and uniform of the complainant removed even if he had to go to the High Court for that purpose. Thereafter, revisionist Luv Gandhi allegedly uttered that he had his wife with him and he would implicate the complainant in a false case.
19. Ld. Counsel for revisionists has contended that merely abusing or misbehaving cannot be taken as criminal intimidation as per requirements of section 506 IPC. In this regard, he has relied upon the Vikram Johar v. The State of Uttar Pradesh, in Crl. Appeal No. 759/2019 decided on 26.04.2019, wherein it has been held as under:-
24. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal CR No. 232/20 (Parveen Singh) Page No. 10 of 15 ASJ03/NDD/PHC: 24.07.2021 intimidation, this Court laid down following in paragraph Nos. 11 and 12: "11. Xxxxxxxxxxxxx A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."CR No. 232/20
(Parveen Singh) Page No. 11 of 15 ASJ03/NDD/PHC: 24.07.2021
25. In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506.
26. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant's house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra).
27. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27th Edition with regard to proof of offence states following: "...The prosecution must prove:
(i) That the accused threatened some person.CR No. 232/20
(Parveen Singh) Page No. 12 of 15 ASJ03/NDD/PHC: 24.07.2021
(ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested;
(iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat." A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.
28. On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506.
20. As far as revisionists Kush Gandhi and Shiv Gandhi are concerned, I find that their utterances even if taken on their face value cannot amount to criminal intimidation. Although the kind of abuses have not been specified but use of abusive language alone cannot amount to criminal intimidation. Criminal intimidation requires that the threat given should be to cause the injury to the person receiving the threat, injury to his reputation or property and this threat should be given with an intent to cause CR No. 232/20 (Parveen Singh) Page No. 13 of 15 ASJ03/NDD/PHC: 24.07.2021 alarm to that person or to cause that person to do any act which he is not legally bound to do or omit to do an act which that person is legally entitled to do. If the alleged threats given by Kush Gandhi and Shiv Gandhi are seen, they are appearing to be very hollow threats and they did not alarm the complainant. Though they were given allegedly with the intention to stop the complainant from doing the act which he was legally entitled to do i.e. to challan revisionist Luv Gandhi. However even if taken on their face value, those threats do not amount to a threat where the complainant was threatened to with any injury to his person, reputation or property. However, the threat given by revisionist Luv Gandhi when he stated that he would implicate the complainant in a false case through his wife is a threat to cause injury to the reputation of the complainant. This threat was given in order to deter the complainant from challaning revisionist Luv Gandhi, an act which the complainant was legally entitled to do. Thus, the threat given by revisionist Luv Gandhi falls within the definition of criminal intimidation and is punishable u/s 506 IPC. Therefore, revisionist Luv Gandhi is liable to be charged for the said offence. However, revisionists Kush Gandhi and Shiv Gandhi are entitled to be discharged for the offence punishable u/s 506 IPC.
21. With regard to section 3/181 and 32/177 MV Act, I find that revisionist Luv Gandhi at the time when he was stopped failed to produce the valid driving license and registration documents of his vehicle and at the same time, he never produced or offered to produce them at a later stage before the IO. Thus, he is liable to be issued a notice u/s 251 Cr.P.C for CR No. 232/20 (Parveen Singh) Page No. 14 of 15 ASJ03/NDD/PHC: 24.07.2021 these offences.
22. In view of the aforesaid discussions, impugned order passed by ld. Trial court is partly set aside. Revisionist Shiv Gandhi is accordingly discharged for all the offences. Revisionist Luv Gandhi is liable to be charged for offences punishable u/s 506 IPC, 3/181 and 32/177 MV Act. Revisionist Kush Gandhi is liable to be charged for offences punishable u/s 186 IPC and 353 IPC. TCR be sent back with the directions to frame charges accordingly. Revision file be consigned to record room.
At request, copy of order be given dasti to the State.
Announced in open court (Parveen Singh)
today on 24.07.2021 ASJ03, New Delhi Distt.,
(This order contains 15 pages Patiala House Court, Delhi.
and each page bears my signatures.)
CR No. 232/20
(Parveen Singh)
Page No. 15 of 15 ASJ03/NDD/PHC: 24.07.2021