Delhi District Court
Sh. I.D.K. Rastogi vs State on 9 April, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE
PATIALA HOUSE COURT, NEW DELHI
In the matter of:
Criminal Appeal No. 07/2021
1. Sh. I.D.K. Rastogi
S/o Late Sh. R.B. Dayal
R/o 1730, Sector 4
Gurugram (Haryana)
2. Sh. Vikas Rastogi
S/o Sh. I.D.K. Rastogi
R/o 1730, Sector 4
Gurugram (Haryana)
3. Sh. Harsh
S/o Sh. I.D.K. Rastogi
R/o 1730, Sector 4
Gurugram (Haryana) ...Appellants
Versus
State ...Respondent
Date of Institution : 06.01.2021
Date of Arguments : 07.04.2021
Date of Judgment : 09.04.2021
JUDGMENT
1. Vide this judgment, I propose to dispose of the present appeal filed u/s 374 CrPC, challenging the impugned judgment dated CA No. 07/2021 Page No. 1 of 12 I.D.K. Rastogi & Ors. Vs. State 04.11.2020 vide which the appellants were convicted for the offence u/s 160 IPC and order on sentence dated 11.11.2020 vide which they were given the benefit of the Probation of Offenders Act.
2. Briefly stated, on 04.12.2007, DD No. 15A, Ex C1, was recorded at 11:50 AM on information of the Naib Court from Court No. 26, Patiala House Court, New Delhi that the Ld. Metropolitan Magistrate had directed to inform Police Station Tilak Marg about "Quarrel" outside the Court. ASI Jagbir Singh reached at the spot, where he found first party comprising of Sh. V.K. Sharma, his son Sh. Tarun and his daughter Shipra and the second party comprising of Sh. Vikas Rastogi, Sh. Harsh Rastogi and Sh. I.D.K. Rastogi. The case of both parties was pending in Court No. 26 and they had come there in connection with their case. Both parties were quarreling in a loud voice. ASI Jagbir Singh made both of them understand but they kept on quarreling with each other. Both parties were taken to the police station and were booked for the offence u/s 160 IPC. The FIR No. 426/2007, Ex PW1/A, was lodged u/s 160 IPC. The site plan, Ex PW 3/H, was prepared. Both parties were arrested. After investigation, the chargesheet u/s 160 IPC was filed.
3. Being prima facie case, notice for the offence u/s 160 IPC was framed against the appellants and another party on 22.11.2012, to CA No. 07/2021 Page No. 2 of 12 I.D.K. Rastogi & Ors. Vs. State which the accused persons pleaded not guilty and claimed trial.
4. Prosecution examined PW1 ASI Wazir Singh, who had recorded the FIR and proved the same.
5. PW2 HC Rajender Singh had joined the investigation along with PW3 SI Jagbir Singh. HC Rajender Singh deposed that both parties were quarreling and raising loud voice in a public place. He further stated that they tried to pacify the matter but both parties did not listen. In the crossexamination, the witness stated that when he reached at the spot, both parties were outside the Court and were quarreling and the Ld. Metropolitan Magistrate was holding the Court.
6. PW3 SI Jagbir Singh also stated on oath that he saw both parties shouting at each other. He further stated that they tried to stop them, but they did not stop and due to which the peace and tranquility was breached. In the crossexamination, PW3 stated that he did not record the statement of the Naib Court or of any other staff of the concerned Court. The incident was going on outside the Court Room and the witness did not enter the Court. It also came in the crossexamination that both parties had come to the Court regarding a matter related to dowry. In further crossexamination, the witness stated that none of the public witnesses joined the investigation.
7. PW4 is Smt. Somwati, retired Home Guard. She conducted CA No. 07/2021 Page No. 3 of 12 I.D.K. Rastogi & Ors. Vs. State the personal search of accused Shipra. The witness was declared hostile on certain material points and was crossexamined.
8. In the statement u/s 313 CrPC, the appellants stated that they had come to attend the hearing before the Ld. ASJ in a case titled State Vs. Harsh Rastogi & Ors. Since another matter was also pending between the parties in the Court of Ld. Metropolitan Magistrate, they went to that Court. The Ld. Metropolitan Magistrate was on leave and the Ld. Link Metropolitan Magistrate was holding the proceedings. It was stated that appellant Harsh Rastogi was inside the Court and I.D.K. Rastogi was waiting outside the Court. Appellant Vikas Rastogi went to the corridor to receive a call. Appellant I.D.K. Rastogi stated that on seeing him sitting alone, the other party started shouting and assaulting. I.D.K. Rastogi stated that he cried for help and after hearing the noise, appellant Vikas Rastogi came to rescue him. Appellant Vikas Rastogi was also assaulted on account of which he got injury on his nose. It was stated that hearing the noise, the Naib Court came outside on the direction of the Hon'ble Judge and the appellants were directed to sit in the Court separately and the matter was directed to be reported to the concerned police station.
9. The Ld. Metropolitan Magistrate vide impugned order inter alia held that shouting and quarrel took place between the parties. The Ld. Trial Court noted that the witnesses had categorically stated CA No. 07/2021 Page No. 4 of 12 I.D.K. Rastogi & Ors. Vs. State that the quarrel took place between the parties and they were disturbing peace of the public. The Ld. Trial Court convicted both the parties u/s 160 IPC. However, it extended the benefit of probation to them.
10. The appellants have challenged the impugned order on the ground that the Ld. Trial Court failed to appreciate that ingredients of Section 160 IPC were not made out, as in order to attribute Section 160 IPC, there has to be an actual fight and mere quarreling and shouting cannot make the affray. The impugned order has also been challenged on the ground that the Naib Court, who had informed the matter to the police and set the machinery into motion, was not made a witness. It has further been submitted that there is no evidence of the public persons to show any breach of public peace. It has further been submitted that the appeal is in limitation on account of order of the Hon'ble Supreme Court extending the period of limitation in view of the prevalent pandemic.
11. Notice was issued to the State and Trial Court Record was called.
12. Sh. Ravinder Khandelwal, Ld. Addl. PP for the State has submitted that the appeal is not maintainable in view of Section 376 CrPC. Ld. Addl. PP for the State has further submitted that since the Ld. Metropolitan Magistrate has extended the benefit of probation, therefore, in view of Section 376 CrPC, the appeal is not CA No. 07/2021 Page No. 5 of 12 I.D.K. Rastogi & Ors. Vs. State maintainable. It has further been submitted that even otherwise the prosecution witnesses have made a consistent and corroborative statements on oath and there is no reason to disbelieve the same. It has further been submitted that merely because the Naib Court has not been made a witness, the case of prosecution cannot be discarded.
13. Per contra, Sh. Satish Tamta, Ld. Sr. Advocate with Sh. Dhruv Tamta and Sh. Shariq Iqbal, Ld. Counsel for the appellants has submitted that the appeal is maintainable. Ld. Sr. Advocate has relied upon Arun Ahluwalia Vs. State (Through Govt. of NCT of Delhi), (2002) 10 SCC 454. In this case, the appellant was convicted for the offence u/s 279/304A IPC and was released on probation by the Ld. Metropolitan Magistrate with direction to pay some compensation to the heirs of the victim. The appeal filed against the conviction was dismissed being not maintainable. The revision filed against it was also dismissed in limine. The Hon'ble Supreme Court set aside the order of the Ld. Appellate Judge and the Hon'ble High Court and directed that the appeal of the accused be disposed of on merits. Ld. Sr. Advocate for the appellants has further submitted that the facts of the present case are squarely covered with the facts of the above said case and, therefore, the appeal is maintainable. Ld. Sr. Advocate has further submitted that the conviction itself is a stigma and the appellants cannot be CA No. 07/2021 Page No. 6 of 12 I.D.K. Rastogi & Ors. Vs. State deprived of their right to challenge the same and particularly when the ingredients of the offence are not made out. Ld. Sr. Advocate for the appellants has relied upon Retti Deenabandhu & Ors. Vs. State of Andhra Pradesh, (1977) 1 SCC 742, wherein it was inter alia held as under:
"Conviction for an offence entails certain consequences. Conviction also carries with it a stigma for the convicted person. A convicted person challenging his conviction in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction, he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be wiped out."
14. Ld. Sr. Advocate for the appellants has further submitted that, therefore, his right to challenge the incorrect order cannot be denied. Ld. Sr. Advocate has further submitted that in the present case, even the ingredients of Section 160 IPC are not made out. Ld. Sr. Advocate has relied upon an old case i.e. Jagannath Sah Vs. KingEmperor, 1936 SCC OnLine Oudh CC 28, in which it was inter alia held as under:
"The question for consideration is whether, under the circumstances, the case falls under S. 160 of the Penal Code, 1860. The word "affray" is defined in S. 159. It means that when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. There is a difference between an "affray" and an "assault". In my opinion the offence of CA No. 07/2021 Page No. 7 of 12 I.D.K. Rastogi & Ors. Vs. State affray, as defined in S. 159 of the Penal Code, 1860, postulates the commission of a definite assault or a breach of the peace; mere quarreling or abusing in a street without exchange of blows is not sufficient to attract the application of this section. Whatever offence Jagannath Sah may have committed it is not one within the purview of S. 160 of the Penal Code, 1860."
15. Ld. Sr. Advocate for the appellants has further relied upon Sunil Kumar Mohakud @ Mahakhuda & Anr. Vs. State of Orissa, 2008 SCC OnLine Ori 359. In this case, the petitioner had gone with one of the parties in a pending case and during the course of discussion, the petitioner was abused and shouted upon. The police booked both the parties u/s 160 IPC. It was argued on behalf of the petitioner that in order to constitute an offence of 'affray', there must be fight between two sides, which is an essential ingredient and mere shouting between the parties would not constitute an offence of 'affray' u/s 159 IPC. It was further argued that in order to constitute affray, fight between two sides is essential and mere passive submission to beating by the other side or shouting in a public place would not constitute an offence of affray. The Hon'ble High Court recorded that there was no allegation of fight having taken place so as to constitute the offence of 'affray' as defined u/s 159 IPC.
16. I consider that there is force in the arguments of Ld. Sr. Advocate for the appellants. In the present case, if we peruse the CA No. 07/2021 Page No. 8 of 12 I.D.K. Rastogi & Ors. Vs. State testimony of the prosecution witnesses, they have merely stated that when they reached the spot, they found both parties quarreling and shouting at each other. There is not even a whisper to the effect that there was any physical fight between them. In the statements u/s 313 CrPC, the appellants/accused persons have stated that appellant Vikas Rastogi was hit by the other party but there is no evidence to the effect that there was fight between the two. In Puran Chand Vs. The State, 1963 SCC OnLine P&H 105, the petitioner was found quarreling with Kundan Ram in a public place and disturbed the public peace. The petitioner was sent up for trial u/s 160 IPC. In this case, it was inter alia held as under:
"3. In the present case there is nothing on the record to show that the accused successfully or even otherwise exchanged any blows. What we have on the record is that there is only exchange of abuses. The exchange of abuses, in my opinion, would not amount to an affray. Something more than a mere wordy quarrel is needed before a person can be convicted under this section. It would be enough if blows are aimed, whether those prove to be successful or otherwise. But even that is lacking in this case. The learned Sessions Judge while recommending this case to this Court relied on Ganesh Das v. Emperor and Jagannath Sah v. Emperor. In addition to the above authorities, Atma Singh v. The State is also relevant to understand what is meant by the word 'fight' and the word 'affray'. The petitioner's counsel also cited The Crown v. Aima Singh, but that case is not relevant to the issue before us. The learned counsel for the State, on the other hand, cited In re. Muthuswami Iyer, but this authority has no bearing on the point before us. This authority only tells us CA No. 07/2021 Page No. 9 of 12 I.D.K. Rastogi & Ors. Vs. State what is meant by a public place, and what is sufficient proof of breach of public peace."
17. Similarly, In re. Ramakudumban & Ors., Crl. RC No. 106/1949 & Crl. RP No. 103/1949, it was inter alia held that for the conviction for the offence of 'affray', it must be shown that two sides were fighting and passive submission to beating by the other side will not do.
18. In Selvaraj & Anr. Vs. The State, represented by the Sub Inspector of Police, Palladam Police Station, Palladam, Coimbatore District, 2005 (1) MWN (Cr.) 107, it was inter alia held as under:
"5. It would be more appropriate and advantageous to reproduce Sec. 159 of IPC, which defines "affray":
"Section 159: When two or more persons by fighting in a public place, disturb the public peace, they are said to "commit an affray"."
A reading of the said provision would clearly indicate that in order to bring home the guilt of the accused for an offence of affray, the prosecution should satisfy the three essentials. Firstly, fighting must be between two or more persons. Secondly, fighting must take place in a public place, and thirdly, such fighting must also result in disturbance of public peace. In the absence of even one of these ingredients, it cannot be stated that there was either an affray or the accused facing the trial, should be held responsible."
It was further inter alia held as under:
CA No. 07/2021 Page No. 10 of 12I.D.K. Rastogi & Ors. Vs. State "6. In the instant case, the petitioners are shown as A Party and the opposite party namely one Jothimani and Samboornam were shown as B Party. It is pertinent to point out that the occurrence has taken place in the house of the petitioners, and thus, it was not in a public place.
The members, who constituted the B Party, have gone to the house of the petitioners and have attacked them, and they were found to be the aggressors. If to be so, there was no fighting between the parties, since the fighting would mean and connote a contester's struggle between two or more persons against one another. Thirdly, there was nothing available to indicate that there was disturbance of public peace, and thus, in the instant case, all the three ingredients which were necessary to constitute affray, were absent. In view of the same, it cannot be stated that the charge sheet filed under Sec. 160 of IPC alleging that there was a fight between A and B Party was correct.
7. Yet another illegality and infirmity is also noticed. A mandatory duty is cast on the Investigating Officer to enquire into both the parties and find out who were the aggressors, and file a charge sheet against them. In the instant case, the police agency finding it difficult, has adopted a shortcut method by charging both the petitioners as A Party and the other accused as B Party for an offence of affray under Sec. 160 of IPC. No doubt, a prejudice was caused to the parties by the said shortcircuit procedure. By that, the petitioners who were not the aggressors and not liable to be charged at all, were placed in such a position to face the trial before the lower Court."
19. I consider that in view of the discussion made hereinabove, the impugned orders cannot sustain. Hence, the impugned judgment dated 04.11.2020 vide which the appellants were convicted for the CA No. 07/2021 Page No. 11 of 12 I.D.K. Rastogi & Ors. Vs. State offence u/s 160 IPC and order on sentence dated 11.11.2020 vide which they were given benefit of the Probation of Offenders Act, are set aside.
20. TCR along with copy of the judgment be sent to the Ld. Trial Court and thereafter, appeal file be consigned to Record Room.
Digitally signed by DINESH DINESH KUMAR
KUMAR SHARMA
Date: 2021.04.09
SHARMA 16:34:24 +0530
Announced through (Dinesh Kumar Sharma)
electronic mode on Principal District & Sessions Judge
09.04.2021 PHC, New Delhi
CA No. 07/2021 Page No. 12 of 12
I.D.K. Rastogi & Ors. Vs. State