Delhi District Court
Jagbir Singh vs State on 18 September, 2018
Jagbir Singh 1 C.R. No. 06/17 (288/17)
IN THE COURT OF KOVAI VENUGOPAL
SPECIAL JUDGE, P.C. ACT (CBI-09), CENTRAL DISTRICT
TIS HAZARI COURTS: DELHI
C.R NO. 06/17 (288/17)
JAGBIR SINGH
S/O SH. SARDAR SINGH
R/O FLAT NO. K-84, UPPER GROUND
AMAR COLONY, NANGLOI
DELHI - 110041
........ REVISIONIST
VERSUS
STATE
......... RESPONDENT
DATE OF INSTITUTION : 06.07.2017
DATE OF ARGUMENTS : 06.09.2018
DATE OF JUDGMENT : 18.09.2018
JUDGMENT
1. The present Revision Petition under Section 397 Cr.P.C.
read with Section 399 Cr.P.C has been filed by the Revisionist (one of the accused before the Ld. Trial Court) against the impugned order dated 19.05.2017 passed by Ld. M.M. Central, Tis Hazari, Delhi, in FIR No. 81/15 U/s 506/186/353/34 IPC, P.S. Subzi Mandi titled as "State Vs. Meenakshi Etc."
Brief facts of the case are as under :-
2. Based on the written complaint dated 04.02.2015 by Dr. Niharika, an FIR was registered against the three accused persons i.e. Revisionist herein, the daughter of the Jagbir Singh 2 C.R. No. 06/17 (288/17) Revisionist and the wife of the Revisionist.
3. As per the contents of FIR, on 04.02.2015, complainant was on duty in Hindu Rao Hospital in Eye Ward, where the Revisionist herein along with his wife came there and started abusing the complainant. It is also alleged that the above persons/accused threatened to beat the complainant in the hospital. It is further alleged that colleagues of the complainant had locked her in duty room from outside and then Revisionist along with his wife tried to break the door of the duty room for the purpose of beating her. It is further alleged that the wife of the Revisionist had thrown her slipper upon the complainant and abused her. It is alleged in the FIR that finally the Investigating Officer came there and he took the Revisionist and his wife out. In the meanwhile, Ms. Meenakshi, the daughter of Revisionist came to duty room and threatened the complainant.
4. Vide the impugned Order dated 19.05.2017, the Ld. Trial Court has ordered that sufficient material is on record to frame charge for the offence punishable under Section 506/186/353/34 IPC against the Revisionist herein. The Revisionist being aggrieved with the impugned order has Jagbir Singh 3 C.R. No. 06/17 (288/17) challenged the said order on various grounds.
5. It was submitted on behalf of the Revisionist that the Ld. Trial Court did not consider the contents of the complaint as well as the statement of complainant recorded under Section 161 Cr.P.C. on 17.02.2015. It is argued that from the contents of the statement, there was no moment when the Revisionist and complainant had faced each other or any threat on the part of the Revisionist was given to the complainant, which warrants the provisions of Section 506 of IPC as no direct conversation had ever taken place in between the complainant and Revisionist on 04.02.2015. The version of the FIR in question can be assessed by comparing the statement of the complainant recorded under Section 161 Cr.P.C. in which the complainant had categorically stated that the Revisionist did not face the complainant in her duty room. Thus, it is argued that the Ld. Trial Court passed the impugned order in routine manner without assessing the contents of the chargesheet and material filed alongwith it.
6. It is further submitted by the Ld. Counsel for the Revisionist that from the statements of witnesses, it can be made out that from 3.30 p.m. to 4.15 p.m. before arrival of Police Jagbir Singh 4 C.R. No. 06/17 (288/17) Officer HC Jiya Lal, no such act as alleged occurred. Ld. Counsel points out to the statement of said Jiya Lal.
7. It is further submitted that the Ld. Trial Court has made the Revisionist merely a scape goat in the entire episode and erroneously decided to frame the charges against the Revisionist. It is also submitted that Ld. Trial Court did not consider the statement of Sh. Harinder Kumar and Sh. Ompal apart from the statement of HC Jiya Lal, who were the independent eye witnesses of the incident. Both the independent eye witnesses had categorically stated in their statements under Section 161 Cr.P.C. that they had heard the noise of three ladies and the revisionist was far away from the alleged incident and the Revisionist went at the place of incident accompanied with Police Officer HC Jiya Lal.
8. It is also submitted that the impugned order passed by the Ld. Trial Court is totally unjustified and against the principle of natural justice. The same is based upon surmises and conjectures. It was submitted that the impugned Order of framing the Charge against the Revisionist is unjustified and therefore, the same deserves to be set aside.
9. On the other hand, Ld. Addl. P.P. for State submitted that Jagbir Singh 5 C.R. No. 06/17 (288/17) the impugned Order does not suffer from any illegality. It was contended that there is no infirmity in the impugned Order, therefore, the same does not require any interference by this Court. It was submitted that Trial Court has rightly passed the impugned Order.
10. It is seen from the record that the Ld. MM passed an order dated 19.05.2017 holding that there is sufficient material on record to frame charges for the offences U/s 506/186/353/34 IPC. The proceedings in this case initiated on information given by the informant Dr. Niharika by registering FIR No. 81/15 U/s 341/506/34 IPC. Police after completing investigation filed chargesheet against the revisionist/petitioner and two other accused. As stated above, the Ld. MM passed an order dated for framing of charges against the accused U/s 506/186/353/34 IPC.
11. Section 195(1) of Cr.P.C. provides procedure for taking cognizance for certain offences. Section 195(1) of Cr.P.C. is reproduced as follows :
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No Court shall take cognizance -
Jagbir Singh 6 C.R. No. 06/17 (288/17)
(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, 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 proceedings 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 (ii)."
12. As provided U/s 195 of Cr.P.C., the cognizance of the offences U/s 172 to 188 can be taken only on the complaint in writing of the public servant concerned or Jagbir Singh 7 C.R. No. 06/17 (288/17) some other public servant to whom he is administratively subordinate. The word complaint is defined U/s 2(d) of Cr.P.C. as follows :
"2(d). '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."
13. Therefore, what is contemplated U/s 195 of Cr.P.C. is a complaint to the Court and not a complaint to the Police. The words 'no court shall take cognizance' have been interpreted on more than one occasion and they show that there is absolute bar against the Court taking seizing of the case except in a manner provided by the Section. In the present case, the cognizance is taken by the Ld. MM on the chargesheet filed by the Police and not on written complaint. Therefore, in the absence of written complaint, no cognizance of offence U/s 186 of IPC can be taken let alone framing a charge.
14. The Ld. MM also held that there is sufficient material for framing charge U/s 353 of IPC. The facts of the case as seen from the record reveal that the alleged offence stated to have occurred at 4 p.m. as narrated by the informant Dr. Jagbir Singh 8 C.R. No. 06/17 (288/17) Niharika, when she was in duty room. Though she stated in her complaint to the Police that she was on duty, it is made clear in her statement U/s 161 Cr.P.C. that incident occurred at 4 p.m. when she went to washroom after coming to duty room. The statements of Dr. Ekta Johri and Dr. Amit Katalwal, Dr. Anoop Ashok and Dr. Juhi Garg and the duty roaster filed on record clearly show that the duty hours are only upto 4 p.m. It is also clearly made out from the case record that at the time of alleged incident, the informant Dr. Niharika was not doing any official work like examining the patients etc. The facts of the case also reveal that the dispute arose due to alleged misunderstanding of friendship between the informant and Nitin who is the husband of accused Meenakshi whose parents are other two accused. It is clear from the above that the alleged incident occurred due to personal reasons. The entire record right from the information given to the Police upto the chargesheet shows no intention on the part of the accused to prevent or deter the informant from discharging her duty as public servant.
15. The Hon'ble Apex Court in Durgacharan Naik and Ors.
Vs. State of Orissa while considering the ingredients of Jagbir Singh 9 C.R. No. 06/17 (288/17) Section 353 and 186 of IPC sounded a note of caution by observing that " we have expressed the view that Section 195, Cr.P.C. does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of Section 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it."
16. The Hon'ble High Court of Delhi in Gurvinder Singh Vs. Jagbir Singh 10 C.R. No. 06/17 (288/17) State while dealing with a similar issue quashed the offences U/s 186/353 of IPC against the petitioner therein by observing as follows :
"8. I think these observations and caution note spell out the Supreme Court squarely apply to the facts of this case. Can the facts of this case, it would hardly be possible to separate the elements of insult on 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, which is a camouflage the prosecution could not evade the provisions of Section 195 Criminal Procedure Code in 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, Criminal Procedure Code, the Court cannot take cognizance of the case at all unless that special complaint had been filed. In the instance 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, Criminal Procedure Code and it was not open to by-pass its provisions even by choosing to prosecute under Section 353/506 Jagbir Singh 11 C.R. No. 06/17 (288/17) Indian Penal Code Mr. R.D. Jolly as pointed above had conceded that charge on the facts of this case under Section 353 Indian Penal Code is not made out because the public servant was not prevented or deterred in the discharge of his official duties."
17. In the present case also, the offence in question which fall in the category of Section 195 Cr.P.C. and it was not open to bye-pass its provisions by choosing to prosecute U/s 353 of IPC. Even otherwise, the facts of the case show that no charge U/s 353 IPC is made out.
18. In view of the above, it is held that the order of Ld. MM framing charges against the accused for offences U/s 186/353 of IPC not sustainable. Hence, the order dated 19.05.2017 is set aside qua all the accused. The contents of the chargesheet and documents filed along with it reveal that there is sufficient material to proceed against all the accused U/s 506 (Part I) /355/34 of IPC. Accordingly, revision petition is allowed. Copy of this order be sent to Ld. Trial Court. Revision file be consigned to record room. Announced in open Court on 18.09.2018 KOVAI VENUGOPAL Digitally signed by KOVAI VENUGOPAL Date: 2018.09.20 16:56:52 +0530 (KOVAI VENUGOPAL) SPECIAL JUDGE (PC Act), CBI-09 CENTRAL, TIS HAZARI COURTS, DELHI