Allahabad High Court
Prof. Onkar Singh And Another vs State Of U.P. on 13 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1715
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 05.08.2019 Delivered on 13.09.2019 Court No. - 34 Case :- APPLICATION U/S 482 No. - 4317 of 1998 Applicant :- Prof. Onkar Singh And Another Opposite Party :- State Of U.P. Counsel for Applicant :-Arun Prakash, Vikram D. Chauhan Counsel for Opposite Party :- A.G.A., Dinesh Pathak Hon'ble Sudhir Agarwal,J.
1. This is an application under Section 482 Cr.P.C. filed by two applicants, namely, Prof. Onkar Singh and P.N. Pathak, praying for quashing of orders dated 26.02.1998 and 02.07.1998, rejecting application of applicants for discharge in Case No. 1277 of 1995, under Section 147, 323, 325 and 426 IPC, Police Station Lanka, Varanasi.
2. At the outset it may be placed on record that Applicant-2, P.N. Pathak son of Sri Kuber Pathak, has died on 03.03.2014, as per report submitted by Chief Judicial Magistrate, Varanasi vide letter dated 05.12.2016 after making inquiry as per this Court's circular dated 18.01.2017. Hence this application has abated qua Applicant-2 and is now surviving only in respect of Applicant-1.
3. Facts, in brief, giving rise to this application are that a First Information Report (hereinafter referred to as "FIR") being Case Crime No. 226 of 1992 under Section 147, 323, 426 IPC was filed in Police Station Lanka, Sadar, Varanasi, on 17.08.1992 by one Atul Mishra son of Sri Laxmi Narayan Mishra against applicants alleging that in the morning on 17.08.1992, when L.L.B. First Year examination was going on in Multipurpose Hall of Kashi Hindu University (Law Faculty), at around 10.15 am some security personnel attempted to take out the students from examination hall. Thereupon Informant protested and said that security personnel should go out of examination hall and allow students to complete examination. Thereupon Chief Security Officer, Onkar Singh, i.e., Applicant-1 assaulted Informant. Accompanying Security Officer, P.N. Pathak, i.e., Applicant-2 helped him in assaulting Informant. Thereafter on the instructions of Applicant-1, about ten number of security personnel came, took out Informant from examination hall and beat him with lathi and boots. Applicant-1, Onkar Singh also came out from examination hall and beat Informant. In the meantime some friends of Informant reached there and protested against assault committed by accused person and other Security Officers but Security Officers did not stop and dispel friends of Informant also. In this process clothes of one student, Rajesh Rai got torn. Informant is President of National Students Union of University and had raised voice against accused applicant, Onkar Singh, protesting against his misbehaviour with students.
4. Alleging that police, in collusion with accused, has not taken any further action in the above FIR, Informant filed a complaint dated 20.10.1992 registered as Case No. 106 of 1992 in the Court of Third Judicial Magistrate, Varanasi against applicants as also ten other security personnel, whose names were not known to Informant but he could recognize them. In the said complaint names of Rajesh Rai, Rajendra Prasad, Pravin Kumar Singh, Head Munshi Thana Lanka, Dr. S.K. Singh and Radiologist-Shiv Prasad Gupt Hospital, were mentioned as witnesses. A medical report was also made part of complaint. The complaint was registered on 20.10.1992 itself and for recording statement under Section 200 Cr.P.C. 29.10.1992 was fixed. Subsequently, Magistrate recorded statement under Section 200 Cr.P.C. and statement of witnesses i.e. PW-1, Pravin Kumar was recorded under Section 202 Cr.P.C. on 05.11.1992. No further witness was produced.
5. When matter was pending, police submitted a final report dated 31.12.1992 in Case Crime N. 226 of 1992 under Section 147, 323, 426 IPC.
6. Proceeding further on the complaint of Sri Atul Mishra, concerned Magistrate on 06.01.1993 passed order summoning both accused-applicants under Section 323, 325 and 426 IPC. Magistrate observed that in the light of statement of Complainant under Section 200 Cr.P.C. and witness, Pravin Kumar (PW-1), under Section 202 Cr.P.C., and documentary evidence comprising of medical report and X-ray as also the copy of FIR, prima facie case against accused applicants under Sections 323, 325, 426 IPC is made out.
7. Applicants filed an application dated 10.02.1993 under Section 210(2) Cr.P.C. for stay of proceedings in complaint case on the ground that police investigation was already in process pursuant to FIR lodged by Sri Atul Mishra on 17.08.1992. Thereafter on 20.02.1993 Applicant-1, Onkar Singh filed an application for discharge and to close proceedings in view of Section 16-D of Banaras Hindu University Act, 1915 (hereinafter referred to as "BHU Act, 1915").
8. Application dated 10.02.1993 filed under Section 210(2) Cr.P.C. was rejected on the ground that it was infructuous since police has submitted final report dated 31.12.1992. Another application dated 29.01.1997 was filed by applicants stating that for the last four years nothing has happened in complaint case, therefore, applicants should be discharged. This application dated 20.01.1997 was rejected by Special Chief Judicial Magistrate, Varanasi vide order dated 26.02.1998. Further, the application filed by Applicant-1, Onkar Singh dated 20.02.1993 for discharge was considered on 02.07.1998 and rejected by Special Chief Judicial Magistrate, Varanasi holding that proceedings are not barred by Section 16-D of BHU Act, 1915.
9. It is contended by Sri V.K. Upadhyay, learned Senior Advocate assisted by Sri Vikram D. Chauhanthat, Advocate pearing for applicants that Applicant-1, Onkar Singh was Chief Proctor and Applicant-2 is a security personnel and both were discharging duties in above capacities under the provisions of BHU Act, 1915 and Statutes, Ordinances and Regulations framed thereunder, therefore, prosecution and legal proceedings were barred by Section 16-D of BHU Act, 1915. Chief Proctor is an "Officer of University" as per Section 6 of BHU Act, 1915. Ordinance 9 framed under Section 18 of BHU Act, 1915 made Chief Proctor responsible for maintenance of discipline in students. Further, injuries of Informant as per report were simple and may have been inflicted upon during course of discharge of official duty by applicants during examination, therefore, Section 16-D is attracted. It is also said that proceedings were only counter blast to embarrass and teach a lesson to Applicant-1, Onkar Singh and hence malicious. Referring to averments contained in rejoinder affidavit it is argued that Applicant-1, Onkar Singh is now 77 years of age and in discharge of his duties in University he has received several appreciations and commendations from time to time which show that he had been performing his duties efficiently. Due to the nature of duties of Chief Proctor, some students particularly office bearers of Students Union may have felt annoyed and criminal proceedings initiated against Applicant-1, Onkar Singh in the case in hand in fact is result of one of such annoyed student. In rejoinder affidavit Applicant-1, Onkar Singh has narrated the incident in his own way and placed certain documents on record but in my view the same being not part of record of Court below when orders impugned in this application were passed, cannot be looked into by this Court at this stage. This Court has to examine, whether orders passed by Court below on the material before it are sustainable or not and whether it is a case fit for intervention of this Court under Section 482 Cr.P.C.
10. Learned A.G.A. for State and Sri Dinesh Pathak, Advocate for Informant urged that the Court has passed order on the basis of evidence adduced by Informant hence no interference would be justified.
11. In the present case, FIR was lodged on the same day when incident said to have taken place. Complainant received injuries which are prima facie supported by medical reports and also admitted in para 26 of affidavit where it has said that injuries may have been sustained by complainant during official discharge of duties by Applicant-1, Onkar Singh and not for any other reason. Complainant has also supported allegations contained in complaint in his statement recorded under Section 200 Cr.P.C. and corroborated by witness PW-1, Pravin Kumar Singh. He was one of the examinee present in the examination hall and an eye witness of the incident. Therefore, it cannot be said that complaint has been lodged as an afterthought or malicious.
12. Still when a complaint is made, before summoning accused, Court has to examine whether offence(s) under the Sections in which complaint has been filed are made out or not.
13. In the present case Applicant-1, Onkar Singh has been summoned under Sections 147, 323, 325, 426 IPC. I proceed to examine, whether offence under the aforesaid Sections, even if the allegations made in complaint and statement of complainant and witness PW-1 on the face value are taken to be true, is not made out or not.
14. Section 323 IPC provides for punishment for voluntarily causing hurt and reads as under:
"323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
15. The term 'Hurt' has also been defined under Section 319 IPC and reads as under:
"319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
16. Term "grievous hurt" has been defined under Section 320 IPC and reads as under:
"320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
First -- Emasculation.
Secondly --Permanent privation of the sight of either eye. Thirdly -- Permanent privation of the hearing of either ear, Fourthly --Privation of any member or joint.
Fifthly -- Destruction or permanent impairing of the powers of any member or joint. Sixthly -- Permanent disfiguration of the head or face. Seventhly --Fracture or dislocation of a bone or tooth. Eighthly --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
17. Terms "voluntarily causing hurt" and "voluntarily causing grievous hurt" have been defined under Sections 321 and 322 IPC and read as under:
"321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
322. Voluntarily causing grievous hurt.--Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said "voluntarily to cause grievous hurt."
Explanation.--A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind."
18. The entire complaint made allegations as under:
^^eqLrxhl dk0fg0fo0fo0 ds fof/k ladk; ds izFke o"kZ dk Nk= gS vkSj jk"V~h; Nk= laxBu ch0,p0;w0 dk v/;{k gS ftlds usr`Ro es vfHk;qDr ua0 1 ds fo:) izn'kZu oxSjg fd;k x;k Fkk vkSj muds fo:) dk;Zokgh dh ekax dh tk jgh Fkh ftlls vfHk;qDr ua0 1 eqLrxhl lscqjk ekurk Fkk vkSj mldk thou cokZn djus dh /kedh Hkh fn;k FkkA fn0 17-8-92 dks lqcg 8 cts ls eqLrxhl dh ijh{kk fo'ofo|ky; fLFkr eYVhijit gky esa gks jgh FkhA mijksDr le; o LFkku ?kVuk ij ijh{kk ns jgs ,d Nk= dks fo'ofo|ky; ds lqj{kk dehZ gkrs ds vUnj idM+dj ys tkus yxs ftldk eqLrxhl us fojks/k fd;k vkSj dgk fd vki yksx ijh{kk gky ls ckgj tk; vkSj bl Nk= ls ijh{kk ys jgs izksQslj yksxksa ls Hkh ckrphr djus fnft,A gekjs blh dgus ij ogkWa ekStwn fo'ofo|ky; ds eq[; lqj{kk vf/kdkjh Jh vksadkj ukFk flag us gekjs dqrsZ dks idM+dj [khapk ,oa ekjus yxsA vkSj ogkWa [kMs ,d vU; lqj{kk vf/kdkjh ftudks eSa flQZ ikBd th ds uke ls tkurk gwWa us Hkh eq>s ekjk ihVk vkSj vksadkj flag ds iqdkjus ij ogkWa [kM+s djhc 10 lqj{kk dehZ eqLrxhl dks idM+dj gky ls ckgj yk;s vkSj ykBh M.Mk ls ekjus yxsA Jh vksadkj ukFk flag us eqLrxhl dks M.Ms ls ekjkA vfHk;qDrx.k ds ekjus ls eqLrxhl dks pksaVsa vkbZA blh chp dqN vU; Nk= Hkh ogkWa igqWapdj vfHk;qDr ds bl dk;Z dk fojks/k djus yxsA ftl ij vfHk;qDr vkadkj ukFk flag o muds lkfFk;ksa us mUgsa Hkh "The complainant is a first year student of the law faculty of Kashi Hindu Vishwavidyalaya (BHU) and president of the National Students' Organisation, BHU, under whose leadership demonstrations etc. against the accused 1 and others were held demanding action against them; because of which the accused 1 sustained ill feeling against the complainant and had issued threats of destroying the latter's life. The complainant was appearing at the examination being held in the multi-purpose hall of the university from 8:00 am on 17.08.1992. On the aforesaid place, date and time, the security personnel caught hold of a student and proceeded to take him out of the hall, which act was opposed by the complainant saying, "All of you shall leave the examination hall and let the student talk to the professors who are conducting the examination." On my saying only this much, the chief security officer caught hold of me by grabbing my shirt and started beating me, and another security officer, to whom I know by his title 'Pathak Ji', also thrashed me. On being called by Omkar Nath Singh, around 10 security personnel standing there carried the complainant out of the hall and started beating him with sticks and staves. Shri Omkar Nath Singh assaulted the complainant with a stick. On being assaulted by the accused persons, the complainant sustained injuries. Meanwhile, other students reached there and started protesting this act of the accused persons, whereupon accused Omkar Nath Singh and his accomplices shoved them as well, resulting in the shirt of a student Rakesh Rai getting torn and his falling down. The occurrence was witnessed by witnesses and they mediated into it. Had the witnesses not mediated into the occurrence, the accused persons would have killed the complainant. The complainant got his injuries examined at the Vivekanand Smarak Government Hospital, Bhelupur, lodged a complaint-report at the Lanka Police Station and got X-ray conducted at the Shivprasad Gupta Hospital. The police is colluding with the accused persons; that is the reason no action has been taken against them as yet, being aggrieved whereby I am filing a case in Court." (English translation by Court)
19. As per own case of complainant examination was going on in the multipurpose hall of University when security personnel came, caught a student and got him outside the examination hall. Student was someone else not the complainant. Complainant however protested of such act of security personnel and said that they should go outside the examination hall and allow examinee, who was being taken away, to talk with Professors. Thereupon Applicant-1, Onkar Singh, i.e., Chief Proctor, who was present thereat caught Kurta of complainant and started beating him. Simultaneously another Security Officer, P.N. Pathak (Applicant-2) also started beating him. Thereafter on the call of Applicant-1, Onkar Singh, about 10 security personnel present in the hall, caught complainant, brought him outside the hall and beat complainant with Lathi. Due to beating by accused persons complainant sustained injuries. Some other students present thereat sought to protect but Applicant-1, Onkar Singh and his companions repelled them and in this process clothes of one student, Rajesh Rai got torn and he fell down.
20. On his own, Complainant got his injuries examined in Vivekanand Memorial Rajkiya Hospital, Bhelupur and got X-ray conducted in Shiv Prasad Gupt Hospital. Injury report by Medical Officer of aforesaid Government Hospital reads as under:
"(1) Contusion 6 cm x 2 cm on inner aspect of right shoulder region, 5 cm away from top of right shoulder and 7 cm away from root of right side of neck.
(2) Contusion 5 cm x 1.5 cm on back of root of left side of neck, 2 cm away from midline.
(3) Contusion 6 cm x 1.5 cm on upper part outer aspect of left upper arm, 4 cm below top of left shoulder.
(4) Abrasion 1.5 cm x 1 cm on inner aspect of proximal part of left ring finger 3.5 cm above tip of left ring finger. Bleeding present.
(5) Contusion 10 cm x 1.5 cm on back upper part of right side of chest extending medially upto mid line and 7 cm below right shoulder web.
(6) Contusion 3 cm x 2 cm on palmer aspect of proximal side of left ring finger half cm below root of left ring finger.
(7) Abrasion 1/2 cm x 1/2 cm on ventral aspect inner side of root of left big toe.
(8) Complaint of pain in hand.
All the injuries are fresh. According to doctor all the injuries were simple and might be caused by blunt objects and frictions."
21. X-ray report shows a crack fracture. The X-ray report reads as under:
"Crack fracture. Distal end of middle. Phalynx of fourth finger left hand with OM changes."
22. Complainant's statement recorded by Magistrate under Section 200 Cr.P.C. and certified copy has been placed before this Court in which he has made statement about the act of Applicant-1, Onkar Singh as under:
^^fnukad 19-8-92 dks eYVhijit gky esa tgkWa ijh{k.k py jgh Fkh djhc lok nl cts fnu vkius lkfFk;ksa Jh ikBd lqj{kkf/kdkjh ,oe~ nl vU; lqj{kk dfeZ;ksa ds lkFk vk, vkSj ,d Nk= dks gky ls ckgj ys tkus yxs ftudk eSaus fojks/k fd;k vkSj dgk fd vki yksx v/;kidx.k ls ckr dj ysa blh ckr ij igys dh jaft'k dks ysdj vfHk0 vkasdkj ukFk flag esjs dqrkZ dks idM+ dj [khap dj ekjus yxs vkSj mUgha ds dgus ij ikBd th us Hkh ekjus dks vkSj yydkjus ij nl lqj{kkdehZ ykBh ls ekjs vfHk0 vkasdkj ukFk flag us eq>s MUMs o ykr ?kwlksa ls ekjk mu yksxksa ds ekjus ls eq>s dkQh pksVsa vk;h ?kVuk dks jkts'k jk;] jktsUnz izlkn] izoh.k dqekj us ns[kk chp cpko fd;k jkts'k jk; dh 'kVZ Hkh vksadkj ukFk flag o muds lkfFk;ksa us QkM fn;k FkkA** "On 19.08.1992 at around 10:15 am, Shri Pathak, Security Officer, along with 10 other security guards, came into a multipurpose hall where examination was being conducted, and started taking one of the students out of the hall; protest to which was made by me and I asked them to talk with teachers. On this, the accused Onkar Nath Singh, out of old enmity, began to catch hold of my Kurta, drag and beat me. Only on his instance, Shri Pathak instigated 10 security guards and they struck me with lathis. The accused Onkar Nath Singh thrashed me with sticks and lathis. I sustained multiple injuries being beaten by them. Rajesh Rai, Rajendra Prasad and Praveen Kumar witnessed the incident and intervened in the matter. Onkar Nath Singh and his accomplices tore Rajesh Rai's shirt as well."
(English translation by Court)
23. PW-1 in his statement has also said as under:
^^esjh ijh{kk yk dh 19-8-92 bZ0 8 cts 11 cts rd FkhA bl fnu ch0,p0;w0 eYVh ijit gky esa ijh{kk ds nkSjku djhc lck nl cts vkasdkj ukFk flag] ¼eq[; lqj{kk vf/kdkjh½ ikBd th] lqj{kk vf/kdkjh vkSj nl vU; lqj{kk dehZ ftUgsa eSa ns[kdj igpku ldrk gwWa ,d ijh{kkFkhZ dks idM+dj ckgj ys tkus yxs ftl ij vrqy feJk us dgk fd vki yksx v/;kidx.k ls ckr ij vkasdkj ukFk flag us vrqy feJk dk dqrkZ idM+ dj [khpuk 'kq: fd;s ftlls mudk dqrkZ QV x;k vkasdkj ukFk flag ikBd th] MUMs ykr eqDds ls ekjus yxs vkSj vkasdkj flag ds yydkjus ij lqj{kkdehZ Hkh muds ekjus ls vrqy feJk dks pksV yxhA** "My law examination was scheduled for 19.08.1992 from 8 to 11 o'clock. On that day at around 10:15 am, Onkar Nath Singh (Chief Security Officer), Pathak Ji, Security Officer and 10 other security guards, whom I can identify on seeing, started taking one of the students out of the BHU multipurpose hall during examination. On this Atul Mishra asked them to talk with teachers. On this, Onkar Nath Singh started dragging Atul Mishra by grabbing his Kurta as a result of which his Kurta got torn. Onkar Nath Singh and Pathak Ji started beating with sticks and giving kicks and fist blows. Atul Sharma sustained injuries being beaten by security guards on the instance of Onkar Singh." (English translation by Court)
24. Aforesaid statement virtually shows that Applicant-1, Onkar Singh, had not entered examination hall to do anything with complainant. He is/was admittedly an "Officer of University" responsible for maintaining discipline among the students. He alongwith other security personnel entered examination hall at 10.15 am on 17.08.1992 to catch a student (other than complainant). While taking the said student away from examination hall, they were intercepted by complainant who was a Student Union Leader. He interrupted in their discharge of official function/duties. It is his own case that he interrupted and said that security personnel as well as Chief Proctor, Applicant-1, should go outside examination hall and student who was being taken away by them should be left to have a talk with Invigilating Professor. Obviously and apparently, Applicant-1 and other security personnel were in the process of discharge of their official duties and complainant has no business to interrupt such discharge of official duties of Applicant-1. The entry in examination hall of Applicant-1 and his companions has nothing to do with complainant or alleged bias, malice or enmity with complainant. It is uncalled for intervention of complainant which resulted in the incident causing injuries to him. With regard to beating, statement of complainant in complaint is different than what he has said in oral deposition. In the complaint he said that when he interrupted in the function of Applicant-1, Onkar Singh and other security personnel, Applicant-1, Onkar Singh caught his Kurta and started beating. Thereafter on the call of Applicant-1, Onkar Singh other ten security personnel present in examination hall caught complainant and brought him outside the hall and then beat him with Lathi and Danda. Applicant-1, Onkar Singh also beat him with Danda. However, in the statement under Section 200 Cr.P.C. he has said that when he protested, Applicant-1, Onkar Singh caught complainant's Kurta and started beating him. He has not said anywhere that he was brought outside of examination hall and thereafter he was beaten by Applicant-1 and security personnel beat him with Lathi and Danda, which he has stated in complaint. Further, in FIR which he has lodged, he has not said anywhere that Applicant-1, Onkar Singh, beat him with Lathi or Danda but has said that inside the hall applicants beat him and thereafter he was brought outside the examination hall by about 10 security personnel and then he was beaten by them with Lathi and when he fell down security personnel beat him with boots. By then Applicant-1 also came outside the examination hall and started beating complainant. The allegation of beating by Applicant-1, Onkar Singh by Danda or boot or legs is an improvement in oral deposition under Section 200 Cr.P.C. though it is not the allegation in complaint itself.
25. The order passed by Magistrate shows that he did not found any truth in the complaint made against alleged ten security personnel and that was rejected. Reading entire complaint and statement it cannot be said that alleged injuries were caused by Applicant-1, Onkar Singh when complainant himself said that he was beaten by Lathi, Danda and boots by ten security personnel but against them complaint has been rejected. Moreover, in the complaint, complainant gave names of witnesses which included Doctor and Radiologist, who allegedly examined complainant in respect of his injuries but they had not been produced for deposition under Section 202 Cr.P.C. and, therefore, alleged medical reports remain unproved.
26. The above facts clearly show that neither there is any allegation nor any evidence that applicant and, in particular, applicant-1 caused any hurt or grievous hurt to Informant/complainant as defined in Sections 321 and 322 IPC for the reason that in order to constitute "voluntarily causing hurt" or "voluntarily causing grievous hurt", the accused must intend to cause or known himself to be likely to cause hurt or grievous hurt. In order to attract Section 322 IPC i.e. "voluntarily causing grievous hurt" explanation is relevant that in order to cause grievous hurt, accused must act with intention and knowledge. Here the applicants and other security personnel entered the examination hall in respect to another student. The complainant intervened in their official duties and created a situation in which there was a scuffle or altercation and since he admits that he protested against all the applicants and other security personnel in taking away the students from examination hall the entire incident occurred. It shows that incident in question, as per own case of complainant, was a result of momentary passion arose on the spot due to uncalled and unwarranted interference by complainant since applicants and other security personnel were discharging their official duties and that too in respect to another student and not complainant. Complainant interfered in their action, protested and with the heat of moment incident took place. Therefore, the intention of "causing hurt or grievous hurt" is clearly lacking and that brings in inapplicability of offences under Sections 321 and 322 IPC punishable under Sections 323, 325 IPC respectively which are apparently not attracted in the case in hand. Looking into entire facts as discussed above, it cannot be said that Applicant-1, Onkar Singh initially caused any hurt or grievous hurt voluntarily with an intention to cause hurt or grievous hurt to complainant and, therefore, offences under Sections 323, 325 IPC are not made out.
27. So far as offence under Section 426 IPC is concerned, it is with regard to a "mischief". Section 426 IPC reads as under:
"426. Punishment for mischief.--Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."
28. "Mischief" is defined under Section 425 IPC and reads as under:
"425. Mischief.--Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.--It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.--Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."
29. Having gone through the entire complaint and statement of complainant recorded under Section 200 and PW-1 under Section 202 Cr.P.C. I could not find as to how Section 426 IPC is attracted in the case in hand. When questioned, Sri Dinesh Pathak, Advocate appearing for complainant, could not explain as to how Section 426 IPC is attracted. Thus it cannot be said that any offence under Section 426 IPC is made out.
30. Now the last Section under which Applicant-1, Onkar Singh has been summoned is Section 147 IPC, which reads as under:
"147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
31. "Rioting" is defined under Section 146 IPC and reads as under:
"146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."
32. In order to bring in "rioting", as defined under Section 146 IPC, there must be first of all an unlawful assembly. Term "unlawful assembly" is defined under Section 141 IPC and reads as under:
"141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--
First -- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second -- To resist the execution of any law, or of any legal process; or Third -- To commit any mischief or criminal trespass, or other offence; or Fourth -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
33. Learned counsel appearing for complainant could not explain as to how presence of Applicant-1, Onkar Singh in his capacity as Chief Proctor of University and responsible to maintain discipline among students, alongwith security personnel can be said to be an unlawful assembly under Section 141 IPC particularly when they had gone to nab another student appearing in examination. They had nothing to do with complainant. It is the complainant who interrupted them in official discharge of duties. In that process complainant when was resisted by security personnel etc. suffered some injuries.
34. In Roy Fernandes vs. State of Goa, 2012(3) SCC 221 Court has said that to see the circumstances in which the incident has taken place, the conduct of members of assembly including weapon of offence they carried or used on spot is necessary to be examined.
35. In the complaint as well as in the statement it has not been said anywhere that, Applicant-1, Onkar Singh and other security personnel when entered examination hall, caught and tried to take away another student from examination hall, they had any weapon with them including Lathi or Danda.
36. The complainant said, when he interrupted in discharge of duties by Applicant-1, Onkar Singh, he caught Kurta of complainant and started beating him. If by one hand Applicant-1 had caught Kurta of complainant he could not have beaten complainant by another hand if he was holding Danda in his second hand. The complaint nowhere shows that in examination hall Applicant-1, Onkar Singh, beat complainant with Danda. Similarly he has said that security personnel brought him outside the examination hall and started beating with Lathi and Danda, and when he fall down, also with their boots. This part of complaint has not been found correct. Therefore, complaint in respect of other ten security personnel has been rejected. With regard to beating by Danda, I have already discussed that statement of complainant is not consistent and trustworthy. Therefore, there was no "unlawful assembly" in terms of Section 141 IPC and that being so there could not have been any offence under Section 147 IPC. Court below has erred in law in summoning applicants under Section 147 IPC.
37. Prima facie this Court, therefore, is satisfied that no offence under Sections 147, 323, 325, 426 IPC is made out and that being so summoning of Applicant-1, Onkar Singh under aforesaid Sections was patently illegal. Court below has passed orders without application of mind and has clearly erred in law.
38. In the result, application is allowed. Orders dated 26.02.1998 and 02.07.1998 as well as further proceedings in Case No. 1277 of 1995, under Sections 147, 323, 325, 426 IPC are hereby quashed.
Order Date :-13.09.2019 AK