Punjab-Haryana High Court
Om Parkash vs State Of Haryana on 16 December, 2010
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Revision No. 796 of 2005
Date of decision: December 16, 2010
Om Parkash
.. Petitioner
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. H.S. Gill, Sr. Advocate with
Mr. R.K. Dhiman, Advocate for the petitioner.
Mr. J.S. Rattu, DAG, Haryana for the respondent.
A.N. Jindal, J
The petitioner was prosecuted along with Satbir Singh under
Section 224 of the IPC when he being a witness, having taken into custody
for his presence by the Bailiff, got himself released and escaped.
Consequently, the trial court vide judgment dated 11.9.2003 convicted him
(Om Parkash) under Section 224 IPC and his appeal was also dismissed by
the learned Additional Sessions Judge, Jhajjar, on 4.4.2005.
In nutshell, the facts are that the Motor Accident Claims
Tribunal had issued non bailable warrants for securing the presence of the
petitioner on 4.9.1997. In compliance with the orders, Jagdish Rai Bailiff
arrested the petitioner from Jhajjar and was taking him to produce him in
the court. When they were at the bus stand Jhajjar, two persons, one of
them was Satbir Singh Rathi co-accused came there and got him forcibly
released. On the aforesaid statement, the case was registered and
investigated. Both Satbir Singh Rathi and the present petitioner were
challaned. However, the trial court acquitted Satbir Singh Rathi and
convicted the petitioner under Section 224 IPC. The Appellate Court
upheld the conviction of the petitioner.
Admittedly, the petitioner was not charged for any offence but
non bailable warrants had been issued against him for securing his presence
as a witness. The essential ingredients to constitute an offence under
Section 224 IPC are as under :-
Criminal Revision No. 796 of 2005 -2-
***
(i) Resistance or illegal obstruction by a person to his lawful apprehension for any offene with which he is charged;
(ii) Escape or attempt to escape by a person from lawful custody for the offence with which he is charged or of which he has been convicted.
Thus, in order to establish the offence under Section 224 IPC, the basic ingredient was that the escapee must have been arrested for an offence charged or convicted. The word "for any such offence" in Section 224 IPC means that the offence with which a person is charged or of which he had been convicted. The word "charged" is used in a popular sense as implying inculpation of the alleged offence as distinguished from a charge formulated after trial. Thus, offence under Section 224 IPC would be complete when a person has been lawfully arrested of a charge of having committed an offence although he may not have been subsequently convicted of such offence. A witness cannot be said to be a person who has been arrested for any offence with which he has been charged. As such, both the courts below did not apply its mind and abruptly stepped against the basic elements of the offence as enshrined under Section 224 IPC. As such, the view taken by both the courts below is perverse. Actually, the court while framing the charge as well as passing the order of conviction against the accused should have gone into basic ingredients of the offence. But, omission to do such illegality shows their inefficiency. Actually the legislature was wise enough to penalise such persons also who were not charged for any offence but had created resistance or illegal obstruction to any custody in which he is lawfully detained. Section 225-B of the Indian Penal Code is relevant and is required to be reproduced in this connection :-
"S. 225-B. Whoever, in any case not provided for in Section 224 or Section 225 or in any other law for the time being in force, intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself or of any other person, Criminal Revision No. 796 of 2005 -3- *** or escapes or attempts to escape from any custody in which he is lawfully detained, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."
Section 225-B IPC refers to the resistance to arrest by the person lawfully detained, though they have been charged for any offence or not, but there must be an overt act of resistance or obstruction to such lawful custody. It has been observed incase Jamna Das v. Emperor, AIR 1927 Lah 708 that a person who escapes from the custody of a process servant after he is arrested, and shuts himself up in a room and refuses to come out does not commit the offence of obstructing a public servant in the discharge of his duties under Section 186 IPC but is guilty of an offence under Section 225-B IPC.
Thus, without commenting further it would be appropriate to observe that the accused has not committed any offence under Section 224 IPC and the offence if any committed by him was covered under Section 225-B IPC.
Resultantly, I partly accept this revision petition, set aside the impugned judgment, convert the offence under Section 224 IPC into Section 225-B IPC. Since the accused has already undergone sentence of two months and four days, therefore, it would not be expedient in the interest of justice to send him to imprisonment again at this stage particularly when he was merely a witness.
In the circumstances this petition is partly accepted, accused is held guilty under Section 225-B IPC and the sentenced is modified to that of already undergone by him.
December 16, 2010 (A.N. Jindal) deepak Judge