Himachal Pradesh High Court
Date Of Decision: 02.08.2024 vs Ashwani Kumar on 2 August, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:7086
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.63 of 2020
Date of Decision: 02.08.2024
__________________________________________________________________________
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State of Himachal Pradesh .........Appellant
Versus
Ashwani Kumar .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Rajan Kahol, Additional Advocate General.
For the Respondent:
Mr. Tara Singh Chauhan, Advocate.
_________________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal appeal filed under Section 378(3) of the Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.') lays challenge to judgment dated 11.09.2019 passed by learned Session Judge, Hamirpur, District Hamirpur, Himachal Pradesh, in Criminal Appeal No.02 of 2018, whereby judgment of conviction and order of sentence dated 01.01.2018/03.01.2018 passed by the learned Judicial Magistrate First Class, Court No.IV, Hamirpur, District Hamirpur, Himachal Pradesh, in case registration No.21 of 2016, came to be set aside.
2. Precisely the facts of the case as emerge from the record are that on 04.04.2015, a nakal rapat No.8 of Daily Station diary of SV & ACB, Hamirpur, was received at Police Station Hamirpur, from the office of Additional Superintendent of Police, SV & ACB, Hamirpur, Himachal Pradesh, bearing No.SV/ACB/Hamirpur-627 dated 22.04.2015, alleging ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 2 therein that that petitioner-Ashwani Kumar (hereinafter referred to as 'accused') extended threats to the Government officials while they were .
discharging their official duties.
3. It came to be averred in the complaint that a criminal case is pending against accused Ashwani Kumar under Sections 7, 13(1) read with Section 13(2) of Prevention of Corruption Act, 1988, in the Court of learned District and Sessions Judge, Hamirpur and on the date of alleged incident, Inspector Sohan Lal and Mr. Anupam Kumar, SDM, Dodra Qawar, were present in Court to depose. As soon as aforesaid witnesses got free after deposing in the Court and were standing outside the Main Gate along with Mr. N.S. Chauhan, Public Prosecutor, accused Ashwani Kumar, who at that relevant time was Sub-Inspector came on the spot and asked Mr. N.S. Chauhan about the cutting made during the trial. Mr. N.S. Chauhan informed accused that it was only spelling mistake, however, accused allegedly threatened above named Public Prosecutor with the words, "meri naukari ko kuch bhi hoga parantu mai aapki naukrion ko bhi nahi chodunga bhale hi mujhe high court jana pade". As per complaint, accused while staring at persons named hereinabove, also threatened that, "bhale hi mujhe kisi bhi seema tak karna pade". Though, Mr. Sohan Lal tried to pacify the accused but accused went away from the spot staring at all the persons standing there.
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4. Apprehending threat and danger to their life, Mr. Sohan Lal made a complaint vide rapat No.8A at 02:00 p.m. i.e. Ex.PW1/B. .
Complainant alleged that he told accused Ashwani Kumar that he should talk to his lawyer and he is free to go anywhere. He also alleged that accused Ashwani Kumar was told that he is accused in this case, while he himself is Investigating Officer and Mr. Anupam Kumar is the main witness, as such, he should not fight with them.
5. On the basis of aforesaid complaint, Police after having conducted necessary investigation, presented Kallandra under Section 186 and 189 IPC against accused in the competent Court of law Ex.PW2/A. Necessary permission to investigate the case was sought from the Court of learned Chief Judicial Magistrate, which was granted vide order Ex.PW7/A. Court below after having recorded the statement of witnesses held accused guilty of his having committed offence punishable under 189 IPC and accordingly, convicted and sentenced him to undergo simple imprisonment for a period of three months and pay fine of Rs.5000/-.
6. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial Court, accused preferred an appeal in the Court of learned Sessions Judge, Hamirpur, which came to be allowed vide judgment dated 11.09.2019. In the aforesaid background, appellant/State has approached this Court in the instant ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 4 proceedings, praying therein to set aside the aforesaid judgment of acquittal recorded by learned Sessions Judge and restore the judgment of .
conviction and order of sentence recorded by learned trial Court.
7. Precisely the grouse of the appellant/State, as has been highlighted in the grounds of appeal and further canvassed by Mr. Rajan Kahol, learned Additional Advocate General is that Court below while passing impugned judgment has failed to appreciate the evidence in its right perspective. Mr. Kahol submitted that learned First Appellate Court wrongly doubted the presence of Inspector Sohan Lal on the spot. He also referred to the statement made by PW-4 to PW-6 to demonstrate that on the date of alleged incident, complainant-Inspector Sohan Lal was very much present in Court. He also submitted that statement made by aforesaid witnesses further reveals that accused while influencing the Government officials, also extended them threats, as such, learned trial Court had rightly held him guilty of his having committed offence punishable under Section 189 IPC. He further submitted that learned First Appellate Court misconstrued the expression used by accused that "in case he lost his job, he would not leave any person, even if he has to go to the High Court" and wrongly arrived at a conclusion that aforesaid statement is not an offence.
He submitted that since accused had threatened the public servants by warning them that they would lose their job, he was rightly convicted under ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 5 aforesaid provision of law by the learned trial Court. Mr. Kahol submitted that learned Appellate Court wrongly arrived at a conclusion that no case .
much less under Section 189 IPC is made out, rather, very conduct of petitioner, which is apparent from the language used by him that he would also ensure that jobs of the officers named in the complaint are also lost, clearly reveals that officers named hereinabove were threatened. He submitted that since very motive and intent of the accused was to deter the public servants from discharging their public duty, no illegality can be said to have been committed by the learned trial Court while holding petitioner/accused guilty of his having committed offence punishable under Section 189 IPC. Lastly, Mr. Kahol submitted that DDR No.8-A dated 22.04.2015 Ex.PW1/B was entered at Police Station of State Vigilance and Anti Corruption Bureau, Hamirpur, District Hamipur, Himachal Pradesh, at the instance of Inspector Sohan Lal i.e. PW-4, which fact was duly proved by PW-4 during his evidence in the learned trial Court.
8. To the contrary, Mr. Tara Singh Chauhan, learned counsel representing the respondent, while supporting the impugned judgment of acquittal recorded by learned Sessions Judge, vehemently argued that that there is no illegality and infirmity, rather same is based upon proper appreciation of facts and law. While making this Court peruse statements made by the material prosecution witnesses, Mr. Chauhan submitted that ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 6 since it has specifically come in the evidence that complainant-Inspector Sohan Lal was not present on the spot at the time of alleged incident and .
he had not come to the Court on account of his being busy for retirement preparations, learned First Appellate Court rightly set aside the judgment of conviction and order of sentence recorded by the learned trial Court, which was otherwise not based upon proper appreciation of evidence and law.
9. I have heard the parties and gone through the record.
10. Having scanned evidence adduced on record, be it documentary or oral, this Court finds that complaint, as detailed hereinabove, was lodged a the behest of Inspector Sohan Lal, however, his presence on the spot of occurrence, at the relevant time is highly doubtful.
Documentary evidence tendered on record itself suggest that on the alleged date of incident, complainant-Inspector Sohan Lal was not present, rather on his behalf, exemption was sought from the Court on the pretext that that he is busy in making preparation for his retirement. Factum with regard to absence of the aforesaid complainant from the trial on the date of alleged incident stands duly proved on record with the placing of order dated 22.04.2015 passed by learned Special Judge, Hamirpur, on record in case No.01/2014, registered against accused Ashwani Kumar under Sections 7, 13(1) read with Section 13(2) of Prevention of Corruption Act, 1988, i.e. Ex.DA.
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11. As per case of prosecution, Inspector Sohan Lal, Mr. Anupam Kumar and Mr. N.S. Chauhan, had come out of the Court after deposing, .
which fact otherwise stand mentioned in daily diary Ex.PW2/A. Though, complainant-Mr. Sohan Lal deposed on oath that when he after deposing in the case titled as State Vs. Ashwani Kumar, Case No.4 of 2013 and was talking to Mr. N.S. Chauhan, Deputy District Attorney and Mr. Anupam Kumar, S.D.M. Dodra Kawar, accused came on the spot and extended threats, however, afore version put forth by him is wholly incorrect for the reason that on the date of alleged incident, complainant-Mr. Sohan Lal had not deposed, rather on his behalf, exemption was sought by the Law Officer.
12. Mr. Anupam Kumar deposed that after deposing in the Court, he along with Deputy D.A. N.S. Chauhan and Inspector Sohan Lal came on the spot and started talking near the Main Gate, but in the meanwhile, accused started extending threats, however, version put forth by aforesaid witnesses stand falsified on account of order dated 22.04.2015 Ex.DA, which suggest that on that day, only statement of Mr. Anupam Kumar was recorded and SI Bachan Singh had prayed for an adjournment which was allowed. On the date of alleged incident, Inspector Sohan Lal was not present despite service, as such, learned Public Prosecutor had made a ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 8 request that since Inspector Sohan Lal is nearing his retirement, he could not appear in the Court.
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13. Since very factum of presence of complainant-Inspector Sohan Lal on the spot, on the date of alleged incident is doubtful, learned Session Judge while setting aside the judgment of conviction and order of sentence recorded by Court below rightly held that order sheet carries irrebutable presumption of correctness and it has to be taken as correct that Sohan Lal had not appeared despite service and a request was made on his behalf.
Since perusal of order dated 22.04.2015 clearly reveals that on the date of alleged incident, Inspector Sohan Lal was not present and he was busy in making preparation of retirement, version put forth by him in the complaint that on the date of alleged incident accused Ashwani Kumar had extended threats to him as well as other officials, could not have been accepted by the Court, especially when no explanation ever came to be rendered on record by aforesaid complainant with regard to his presence on the spot, on the alleged date of incident.
14. Most importantly, Inspector Sohan Lal categorically admitted that his statement was not recorded on the date of alleged incident, however, he feigned ignorance that request was made by Public Prosecutor to the Court for his exemption on account of his impending retirement.
Though, this witness in his cross-examination denied that he was not ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 9 present in the Court Complex, but definitely he failed to explain that if he had not come present for deposing in the trial, how and under what .
circumstances he became present on the spot of occurrence, where allegedly petitioner/accused extended threats. PW5-Anupam Kumar in his cross-examination stated that he was not remembering whether the statement of some other person besides him was recorded in the Court, but Sohan Lal had met him in the Court after his statement was recorded.
Similarly PW6-Mr. N.S. Chauhan in his cross-examination stated that Inspector Sohan Lal and S.D.M. Anupam were present with him. While denying that Inspector Sohan Lal had not appeared in the Court nor was he accompanying this witness, this witness deposed that he was not aware that he had made a request in the Court that Inspector Sohan Lal was unable to appear due to his ill-health. Though, version put forth by aforesaid witnesses suggests that at the time of alleged incident, complainant-Sohan Lal was present on the spot, but having perused order dated 22.04.2015 passed by learned Special Judge in Case No.01/2014, learned Session Judge rightly disbelieved their afore version.
15. In aforesaid session trial, adjournment was sought by SI Bachan Singh on account of absence of Inspector Sohan Lal, who at that relevant time was unable to come present, on account of his being busy in retirement preparations. Since very presence of complainant-Inspector ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 10 Sohan Lal is doubtful, factum of extending threats, if any, to the accused also becomes doubtful.
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16. Though, at this stage, learned Additional Advocate General while placing heavy reliance on the statement made by PW5 and PW6 i.e. Mr. Anupam Kumar and Mr. N.S. Chauhan, attempted to argue that though complainant-Inspector Sohan Lal may not be available to depose before the Court in session trial, as detailed hereinabove, but admittedly he was present on the spot, while threats were extended to him as well as other officials, namely Mr. Anupam Kumar and Mr. N.S. Chauhan, if it is so, there was no occasion for learned Session Judge to reverse the judgment recorded by the learned trial Court. However, this Court is not impressed with the aforesaid submission made by Mr. Rajan Kahol, learned Additional Advocate General for the reason that once factum with regard to absence of Inspector Sohan Lal in the Court premises stands recorded in order dated 22.04.2015 passed by learned Special Judge, coupled with the fact that incident happened immediately after deposition, if any, made by PW5 and PW6 and the Public Prosecutor had sought adjournment on the ground that Inspector Sohan Lal has not been able to come present in the Court on account of his having busy in retirement preparation, it is not understood that how Inspector Sohan lal became available at the spot, that too immediately after completion of evidence of PW5 and PW6.
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17. Bare perusal of Section 189 IPC suggests that whoever holds out any threat of injury to any public servant, or to any person in whom he .
believes that public servant to be interested, for the purpose of inducing that public servant to do any act, or to forbear or delay to do any act, connected with the exercise of the public functions of 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. To invoke aforesaid provision of law, prosecution is under obligation to prove that accused held out threat of injury. The word "injury" has been defined in Section 44 of IPC, which suggest that to make any harm whatever illegal caused to any person, in body, mind, reputation or property, would amount to injury.
Similarly, word "illegal" has been defined in Section 43, which means to do anything which is prohibited by law or which furnishes ground for civil action. However, in the instant case, expression, if any, used by accused that "meri naukari ko kuch bhi hoga parantu mai aapki naukrion ko bhi nahi chodunga bhale hi mujhe high court jana pade" cannot be construed to be threat of injury to public servant, rather, aforesaid expression, if any, used by the accused suggest that he intended to say that in case he loses his job on account of allegations levelled by persons, to whom he allegedly extended threats, he would not mind going to the higher Court, that could only by way of taking legal recourse.
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18. Similarly, another expression allegedly used by accused that "bhale hi mujhe kisi bhi seema tak karna pade" also cannot be .
construed as a threat of injury to a public servant, rather, words or expressions, as reproduced hereinabove, used by the petitioner, if read in conjunction, clearly suggests that very intention of accused at that relevant time was to put complainant as well as other officers to the caveat that in case he loses his job, he would approach the Hon'ble High Court, if it is so, no case much less under Section 189 IPC otherwise can be said to have been made out against the accused.
19. Needless to say, no person is prohibited by any law to take recourse of law for protection of his valuable rights. There is nothing in the statements of PW5 and PW6 that threat, if any, was made by accused, thereby, compelling public servants to do any act or to forebear or to delay to do any act. By the time, threat, if any, was made by the accused, witness Anupam Kumar had already deposed, though, Inspector Sohan Lal was yet to depose, but accused never persuaded or dissuaded him to depose or not to depose.
20. Necessary ingredient of Section 189 IPC that threat should have been made to compel the public servant to do, forbear or to delay any act has not been satisfied in the present case, as such, learned Session Judge rightly set aside the judgment of conviction and order of sentence ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 13 recorded by learned trial Court. Finding returned by learned trial Court that accused wanted to instill a fear of injury to public servant does not .
appear to be based upon the proper appreciation of evidence as well as law.
Complaint in the case at hand was never made by Mr. N.S. Chauhan, who was Public Prosecutor, rather, complaint was allegedly made by Inspector Sohan Lal. Moreover, at no point of time, accused asked any of the person, to whom he allegedly extended threats or persuaded them to not to depose against him, rather, he warned them that in case anything wrong happens to his job, he would also not spare them and in that regard, he would not mind approaching the High Court.
21. In this regard, reliance is placed upon judgment dated 19.06.2024 passed by this Court in case titled as Sita Ram Sharma Vs. State of H.P. & Anr., in Cr.MMO No.363 of 2023, which reads as under:
"16. To invoke aforesaid provision of law, it is incumbent upon prosecution to prove that person charged with aforesaid section voluntarily obstructed any public servant in discharge of his public function. Section 186 IPC, which provides for conviction of a person, who voluntarily obstructed any public servant in the discharge of public function, with imprisonment, which may extend to three months or fine, however, in the instant case, there is nothing on record to suggest that the petitioner stopped Police from challaning him, rather police, after having noticed certain discrepancies, challaned him under Sections 177 and 179 of the Act. Making certain remarks, if any, on Facebook may not be sufficient to conclude obstruction, if any, caused by the petitioner. Otherwise also, import of the remarks allegedly made by the petitioner on Facebook, as have taken note hereinabove, nowhere indicates that an attempt ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 14 was made by the petitioner to dissuade the Police officials from doing their duty, rather by making post, petitioner attempted to state that he is being unnecessarily harassed.
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17. Interestingly in the case at hand, Police official concerned challaned the petitioner under Sections 177 and 179 of Motor Vehicles Act, but no action, if any, ever came to be taken against him for his having not produced the documents of the vehicle. Since, petitioner had not produced the documents, police officials straightaway ought to have impounded the vehicle in question, which procedure was not adopted by them. Since, there is nothing on record to suggest that obstruction, if any, was ever caused by the petitioner while respondents No.2 was challaning him under Sections 177 and 179 of the Motor Vehicles Act, no proceeding, if any, under Section 186 of the Indian Penal Code could have been initiated against him. Since, basic ingredients of Section 186 of the Indian Penal Code are missing, chances of conviction of the petitioner-accused in a trial, if permitted to continue, are very remote and bleak. If it is so, no fruitful purpose would be served by permitting the trial to continue, rather continuance of trial would amount to sheer abuse of process of law.
18. Next question, which arises for consideration is that whether act of the petitioner making video or going life on Facebook would amount to voluntarily causing obstruction or not?
19. Once there is no allegation that accused used a physical force to cause any obstruction to the Police official, who admittedly after having noticed certain non-compliances on the part of the accused-petitioner, challaned him under Sections 177 and 179 of the Motor Vehicles Act, no case under Section 186 of the Indian Penal Code, could have been initiated against the petitioner. In order to make out an offence punishable under Section 186 of the Indian Penal Code, it is incumbent upon the prosecution to show that 1.) accused voluntarily obstructed a public servant and 2.) such obstruction was caused in discharge of public function of such public servant. The term "voluntarily" contemplate the commission of some overt act; mere passive conduct of a person would not amount to causing obstruction. In the present case, it is none of the case of the prosecution that petitioner obstructed the ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 15 police officials from challaning him or impounding his vehicle. Rather, in the case at hand, police concerned challaned the petitioner under Sections 177 and 179 of Motor Vehicles Act.
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20. Precise allegation in the case at hand against the petitioner is that he went live on Facebook and made certain comments, but certainly, such act, if any, of him, cannot be considered obstruction, if any, caused by the petitioner.
21. No doubt, expression "obstruction" does not unnecessarily mean physical obstruction, but in my view, any action accompanied by either show of force or threat or having the effect of obstructing the public servant from carrying out his duty, would constitute 'obstruction' for the purpose of Section 186 of the Indian Penal Code. In the case at hand, Police Officer was never obstructed in any manner in discharge of his duty, rather he after having taken note of the fact that petitioner was driving the vehicle without wearing seat belt, challaned him under Section 177 of Motor Vehicles Act, mere protesting or using intemperate language without an overt act, will not be an offence punishable under Section 186 of the Indian Penal Code. Passive conduct without disturbing a public servant in discharge of his functions or duties will not amount to voluntary obstructing a public servant within the meaning of Section 186 of the Indian Penal Code.
22. Reliance is placed upon judgment passed by this Court in Surinder Singh Chauhan v. State of Himachal Pradesh,2002 1 CurLJ 332."
22. Similarly, this Court finds that there is no evidence worth credence to connect accused with the offence, if any, allegedly committed under Section 186 IPC, which talks about obstruction, if any, caused to the public servant in discharge of his public duty. As has been taken note hereinabove, at no point of time, accused asked complainant as well as other officers not to do their duty, rather, he stated that in case he loses his job, he would not mind going to the higher Court, which statement of him, ::: Downloaded on - 23/08/2024 20:31:01 :::CIS 2024:HHC:7086 16 if any made, by no stretch of imagination can be said to be obstruction to any public servant in discharge of his duty.
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23. Leaving everything aside, once presence of complainant-
Inspector Sohan Lal, at whose behest, prosecution came to be lodged against petitioner is doubtful, version put forth by him in the complaint, otherwise could not have been taken as a gospel truth by the trial Court while holding petitioner/accused guilty of his having committed offence punishable under Section 189 IPC, rather, it ought to have given precedence to order dated 22.04.2015 Ex.DA, recorded by learned Special Judge, in a trial, where complainant-Inspector Sohan Lal was shown to be absent on the given date.
24. Having taken note of absence of Inspector Sohan Lal on the relevant date, Court concerned specifically adjourned the matter to 22.05.2015 for his examination. Since entire incident allegedly happened outside the Court room, coupled with the fact that factum with regard to absence of Inspector Sohan Lal stood duly recorded in the order dated 22.04.2015, version put forth by complainant-Inspector Sohan Lal that incident allegedly happened in his presence, could not have been made basis by the learned trial Court while holding petitioner/accused guilty of his having committed offence punishable under Section 189 of IPC, rather, same being doubtful, ought to have been rejected at its threshold.
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25. Consequently, in view of detailed discussion made hereinabove, as well as law taken into consideration, this Court finds no illegality and .
infirmity in the impugned judgment passed by the learned Session Judge, as such, same is upheld. Accordingly, present appeal is dismissed. Pending applications, if any, also stand disposed of.
(Sandeep Sharma), Judge August 02, 2024 (Rajeev Raturi) ::: Downloaded on - 23/08/2024 20:31:01 :::CIS