Delhi District Court
State vs . Salim Ahmed on 30 November, 2012
1
IN THE COURT OF MS. SHELLY ARORA: METROPOLITAN MAGISTRATE (MAHILA
COURT): SAKET COURTS, NEW DELHI
STATE VS. Salim Ahmed
FIR NO. 681/98
PS Sriniwaspuri
Date of Institution of case : 31.07.1999
Date on which case reserved for judgment : 27.11.2012
Date of judgment : 30.11.2012
JUDGMENT U/S 355 Cr. PC.
a)Date of offence : 01.08.1998
b)Offence complained of : 186/353/509 IPC
c)Name of accused, his parentage : Salim Ahmed Hamidan
s/o Sh. Hazi Mirza
Mohammad Yusuf
R/o H. No. 57/12, Main
Road, Zakir Nagar,
Okhla, New Delhi
d)Plea of accused : Pleaded not guilty.
e)Final Order : Acquitted
JUDGEMENT:
1. Accused Salim Ahmed has been sent to face trial on the allegations that he had vol untarily obstructed complainant Kamla who was a public servant while she was dis charging her public functions on 01.08.1998 at 9.30 am at main road, opposite street FIR No. 681/98 State Vs. Salim Ahmed Page 1 of 11 2 no. 15, Zakir Nagar, New Delhi and had also assaulted the said complainant in order to deter her from discharging her public functions and had also insulted her modesty by uttering abusive words intentionally and thus, committed an offence punishable u/s 186 IPC, 353 IPC and 509 IPC.
2. Brief facts of the prosecution case are as follows.
Complainant Kamla Devi was employeed as Sweeper with MCD and accordingly was performing her designated duty on 01.08.1998 at about 7.30 am when the accused who was a resident of said street no. 15, main road Zakir Nagar, abused and as saulted her. She informed about the incident to her Sanitary Inspector of MCD. Her complaint in writing was forwarded by Sanitary Inspector to the SHO PS Okhla who registered FIR against the accused person. Investigation was carried out. Statement of witnesses were recorded. Accused was arrested and later released on bail. Investigation report was prepared and filed in the court after conclusion of investiga tion, upon which cognizance was taken by the court.
3. Accused Salim Ahmed was charged for commission of offence punishable u/s 186 IPC, 353 IPC and 509 IPC vide order dated 04.06.2002 passed by Ld. Predecessor of this court which was explained to him in vernacular to which he had pleaded not guilty and claimed trial instead.
4. The matter was then listed for prosecution evidence. Prosecution has produced seven witnesses in support of its case. Any witness in defence has not been produced.
5. PW1 is Kamala Devi who deposed to be employed as a Sweeper with MCD and was performing her duty of cleaning the road at street no. 15, Zakir Nagar on 01.08.1998 at about 7.30 am when accused started abusing her. She further deposed that ac cused had caught hold her and obstructed her while she was performing her duty.
FIR No. 681/98 State Vs. Salim Ahmed Page 2 of 11 3She proved her complaint made to police as PW1/A bearing her thumb imporession at point A. She deposed to have pointed out the spot of occurrence to the police and that later accused was arrested by the police.
PW1 Kamala Devi was put to cross examination by counsel for the accused person. In such cross examination by Ld. Defence Counsel, she stated that she was not acquant ed with accused Salim and as such did not know about any of the other resident of street no. 15 where the accused resides. She further stated that accused Salim never abused her prior to the incident. She declined the suggestion made by Ld. Defence Counsel that she did not perform her duty properly in the area for which the resident of the area insisted and she ended abusing them further denied that she had even abused accused Salim on the day of alleged incident. She stated that she had in formed the police about his approaching her senior Sharma and that accused had caught hold of her, about which she was confronted with her statement/complaint Ex PW1/A.
6. PW2 is Suresh who desposed to have seen the accused holding Dupatta of com plainant Kamla and abusing her while he was also performing his duty as sweeper in ward no. 7, Zakir Nagar and further deposed to have saved the complainant Kamla from the clutches of accused. In cross by counsel for the accused persons, he stated that he was not appointed with accused Salim and as such was not able to tell the other residents of the area. He declined the suggestion that he was not present at the spot of occurrence at the time of incident and that accused has never misbehaved with complainant Kamla and that this complaint was made at the instance of their se nior Sharma Jee. He was confronted with statement made to the police that he had never confronted the accused qua his conduct towards Kamla.
7. PW3 is HC Kishan Lal who proved the FIR as Ex PW3/A. He was not put to cross ex FIR No. 681/98 State Vs. Salim Ahmed Page 3 of 11 4 amination by counsel for the accused persons despite opportunity.
8. PW4 is ASI Roshan Lal, who proved the endorsement Ex PW4/A made upon the complaint Ex PW1/A. He also proved the site plan as Ex PW4/B. He also deposed to have arrested accused Salim vide Arrest Memo Ex PW4/C and personal search memo Ex PW1/B. In cross examination by counsel for the accused person is stated that he had remained at the spot for about 3045 minutes and denied the suggestion that the proceedings were conducted in the police post.
9. PW5 is HC Satpal who was examined in chief but could not be tendered for cross ex amination having already expired.
10. PW6 is HC Ram Lal who deposed to have obtained the santion/complaint u/s 195 Cr. P. C from Superintendent Sanitation and file the chargesheet in the court. He was not put to cross examination despite opportunity.
11.PW7 is Rishal Singh who proved the complaint u/s 195 Cr. P. C pertaining to the case as Ex PW7/A. He was put to cross examination by counsel for the accused per sons.
12. Prosecution evidence then stood concluded. The incriminating evidence whatsoev er appearing against the accused Salim Ahmed on record was put to him in his statement u/s 313 Cr. PC r/w Section 281 Cr. PC wherein he claimed himself to be innocent submitting that he alongwith other residents of the locality checked the complainant for not doing the work property for which she felt insulted and lodged this false case.
13. Final arguments advanced. Ld. APP argued that the prosecution case stands proved beyond reasonable doubt on reading the evidence of PW1 Kamla and PW2 Suresh well supported by all the technical requirements inclusive of the necessary sanction FIR No. 681/98 State Vs. Salim Ahmed Page 4 of 11 5 u/s 195 Cr. P. C. Ld. Defence counsel on the other hand filed Written Arguments submitting that there is discrepancy in the version of complainant as PW1 and that of PW2 Suresh with respect to place of occurrence and time of occurrence further sub mitted that even the arrest of the accused was doubtful and as such the complaint forming the basis of this case is entirely false. He has also argued that any doubt in the prosecution version certainly has to benefit the accused person. He has relied upon several judgments to support his contentions which he has noted in written arg ments and have also filed copies of certain judgments. Ld. Counsel for the accused has prayed for acquittal of the accused person.
14. I have perused the case record carefully.
15. The case at hand needs to be approached and assessed from various angle and per ceptions. The basis of the prosecution case is complaint Ex. PW1/A culminating into testimony of PW1 Kamla and supported by eye witness PW2 Suresh.
16. In the complaint Ex. PW1/A, Kamla asserted that accused abused her and tried/gestured to beat her. She toed a different line in her testimony as PW1 that ac cused abused her and then caught hold of her. PW2 Suresh yet gave a different ver sion that he saw accused holding the Dupatta of Kamla Devi. This is while neither Kamla Devi in her complaint or in the witness box nor Suresh to Police or in the court specified the words used by accused to address her which she chose to call "abuses".
17. The deposition of PW1 Kamla gives a sense that she was physically obstruct ed from doing her duty as accused had caught hold of her without bringing in a sense of attack on her modesty, whereas, the tenor of testimony of PW2 Suresh reflects otherwise. This is without any observation upon the fact that Suresh was working at a distance and could not have witnessed how things initiated and could have ob served later during the incident only when he sensed something wrong happening with Kamla Devi.
FIR No. 681/98 State Vs. Salim Ahmed Page 5 of 11 618. First, it is imperative to assess whether complainant Kamla Devi can be stated to be Public Servant u/s 21 of IPC and whether she was performing public functions at the time of incident. Complainant Kamla Devi was employed as a sweeper with MCD and thus was cleaning the road which is part of her stipulated duty given by Govt for which she was drawing remuneration from the Govt. Thus, it can be said that she was engaged in her duty as public servant when the alleged inci dent happened.
19. Accused has been charged with commission of offence punishable u/s 186 IPC, 353 IPC and Section 509 IPC.
20. Section 186 IPC and 353 IPC have a sense of generic connection with each other. In order to bring home the charges against the accused persons for the of fences punishable under Section 186 IPC, the prosecution is duty bound to prove the following facts beyond reasonable doubts:
i. The accused persons assaulted or used criminal force to a public servant. ii. Such public servant was then acting in the discharge of his public duty. iii. It was caused to prevent or deter (voluntarily obstructing) him from discharging his duty as such public servant.
iv. Such assault or criminal force was used in consequence of anything done on attempted to be done by the said public servant.
Further, it is important at the outset to understand certain preconditions/pre requisite attached with the prosecution under Section 186 IPC so as to give credence to further discussion. Section 195 (1) (a) of the Code of Criminal Procedure bars court to take cognizance of an offence punishable under Section 186 IPC unless a complaint has been made in writing by the public servant or by another public servant to whom he is subordinate. Thus, there are three prerequisites to the cognizance of offence under Section 186 IPC being taken by court as envisaged by Section 195 (1) (a) of FIR No. 681/98 State Vs. Salim Ahmed Page 6 of 11 7 Cr.P.C.
i. There should be a complaint.
ii. The complaint should be in writing.
iii. It should be of public servant concerned or of some public servant to whom he is subordinate.
21. Section 195 (1) (a) Cr.P.C. as noted in preceding paragraphs only encompasses apparently in its domain the applicability of Section 186 IPC and does not touch upon the others.
In Makardhwaj vs. State AIR 1954 Orissa 175, it has been held "noncompliance of the requirements of Section 195 Cr.P.C. is fatal to the prosecution of offence punishable under Section 186 IPC. It has been held in another case reported as AIR 1994 Madras 561 that where the facts disclose to offences, for one of which sanction is necessary and for the other sanction is not necessary, a complaint by court is necessary for the one and a complaint by the court is not necessary for the other, the provisions relating to sanction cannot be evaded. It has been so held in cateena of judgments. The real test is whether the facts alleged against an accused discloses two distinct offences or whether the facts disclosed primarily an offence for which a complaint by public servant is required. The main allegation which has been made against petitioner is that they voluntarily obstructed the public servant in discharge of their duties as such so if these petitioners are alleged to have assaulted them in the course of voluntarily obstructing the public servant from discharging their duties, the offences under Section 323/353/324 IPC are so connected with the primary offence of Section 186 IPC that it is difficult to say that those offences constituted separate offence other than an offence under Section 186 IPC. The very fact of obstruction in the FIR No. 681/98 State Vs. Salim Ahmed Page 7 of 11 8 case implies assault and hurt to public servant concerned and so the primary offence alleged to have been committed by these petitioners is one under Section 186 of IPC and if cognizance is taken of the offences on the basis of police report only under Section 323/324/353 IPC it will amount to circumventing the provisions of Section 195 of Cr.P.C. which is not permissible in law. The Magistrate has no jurisdiction to take cognizance without complaint in writing of the public servant concerned or of the public servant to whom he is subordinate."
In Vasu Dev Vs. State Crim Misc. (M) 117/82 it was held that complaint for commission of offence punishable under Section 186 IPC should be filed in the court and not to be handed over to the SHO for being tagged/filed along with challan.
In Daulat Ram Vs. State of Punjab AIR 1982 SC 1206 it was held that proceedings for an offence punishable under Section 186 IPC could have been set into motion if there had been a formal complaint lodged with the court concerned by the public servant who had been obstructed in the discharge of his public duties or against whom an offence has been committed. Without this complaint, the court could not have taken seisin of the case. In fact, there is an absolute bar in terms of language used in Section 195 (1) (a) Cr.P.C.
22. Now, coming to facts of the present case, PW7 Risal Singh being the Sanitary Inspector made complaint to police endorsing the statement of complainant Kamla Devi and also gave a sanction letter addressed to court as Ex PW7/A. The complaint contemplated as per requirement of Section 195 Cr. PC is the complaint defined under section 2(a) of Cr. PC which ought to be made to Court of respective jurisdiction and not to police. The ingredients of complaint that it should have been FIR No. 681/98 State Vs. Salim Ahmed Page 8 of 11 9 made to court with a pleading to take suitable action upon the same do not stand satisfied in this case neither with endorsement made in the complaint Ex. PW1/A of Kamla Devi pleading with police to take action nor with the document Ex. PW 7/A wherein he just gave permission to Kamla Devi to keep attending court hearings as and when required. PW7 Risal Singh even did not prove endorsement made upon statement Ex. PW 1/A in the court.
23. Coming to assess its sufficiency in view of definitive mandatory requirement of Section 195 (1) (a) Cr.P.C., the offence under Section 186 IPC is a non cognizable offence by its nature, therefore Police cannot investigate the same without prior direction of the court on its own as per the mandate of Section 155 Cr.P.C. It is also clear position of law that facts cannot be split up to segregate those which require a formal complaint in writing from others which do not have such precondition attached to them for the purposes of taking cognizance, specially when all fundamentally have the basic core with some little aggravated forms of others, otherwise part of same transaction with same basic purpose. The purpose of Section 195 Cr.P.C. holds good still and cannot be any means be circumvented.
24. It is submitted proposition of law that requirement of case u/s 195 Cr. P.C. is mandatory and cannot be by passed. The purpose of it putting upon a pedestal different then others cannot be legally disregarded. The said requirement thus does not stand fulfilled as far as this case is concerned.
25. The next imperative point is to assess the legal inference and meaning of word 'obstruction''. It implies an act by the accused person in order to impede the discharge of public functions by a public functionary. The act is inclusive of assault or uses of criminal force upon the public servant.
In this case, the testimony of PW1 is very vague and unclear with this point FIR No. 681/98 State Vs. Salim Ahmed Page 9 of 11 10 as in she never mentioned any physical obstruction by accused in her complaint Ex. PW1/A to police but specified verbal misappropriate words without specifying the words used. She testified having been obstructed by forcibly being held by accused which is not supported by version of PW2 Suresh who said that accused held her Dupatta in his hands. There is inconsistency unexplained in the testimony of two star witnesses of prosecution. The contradiction were also put to both prosecution witnesses by their respective cross examination by Ld. Counsel for accused person but they have not been explained by them. The facts called to have caused obstruction thus do not stand proved because of unexplained variance of version therefore its legal implication do not hold which much substance at this stage.
26. The observation also holds weightage as against the affirmation of accused having assaulted the complainant Kamla Devi. It appears that entire chain of circumstances have not been readily brought forth. There are certain things either held back or changed colour of else there was no reason as to why same alleged happening has been explained with contradictory versions with no connection in facts put across at different times thereof. Further, the witness has rather put in her perception on board without clarifying the facts leaving it to court to interpret them. PW1 Kamla Devi thus cannot be said to be credited that she proved herself to have been assaulted by accused person. Thus, neither the factum of obstruction nor any assault in order to obstruct PW1 Kamla Devi can be attributed to any act proven against the accused person.
27. Section 509 IPC contemplates the words or gestures having been used or attributed to accused person for the purpose of/intending to insult the modesty of a woman. In this case, the words allegedly used by accused have not been testified about and there cannot be any assumption or presumption with the court that they must be deemed to have insulted the modesty of complainant Kamla Devi or that her respect has been compromised as a woman in reasonable social perception.
FIR No. 681/98 State Vs. Salim Ahmed Page 10 of 11 1128. Summing the discussion, this court holds that there are improbabilities, contradictions and inconsistencies in the version of PW1 Kamla Devi and PW2 Suresh with respect to facts of alleged incident. There cannot be two statements for proof of one fact. The fact has to come out clean, clear and fine for it to be proved. The facts in this case are lazy, vague wrapped and appear to be twisted.
29. Accused has taken a categorically stand in his defence that complainant was asked to do her work properly which pinched her and lodged this case and in fact abused him for this. This has been put to both star prosecution witnesses in cross examination and also repeated in the statement u/s 313 Cr. P.C of accused person. Thus, there is a consistent defence taken by the accused through out the case.
30. The inconsistency and contradiction of versions of prosecution witnesses improbabilises its truthfulness but probabilises the version and defence of accused in this case. The allegation remained examined allegations and did not culminate into proven facts. The legal requirement of setting the law is to motion by claiming privilege of being a public servant also has not been satisfactorily complied with. The prosecution case thus collapses on both factual and legal grounds. Accused Salim Ahmed is accordingly acquitted of the offence punishable u/s 186 IPC, 353 IPC and 509 IPC.
Ordered accordingly.
Announced in the open court today (SHELLY ARORA)
on 30.11.2012 M.M. /Mahila Court/SED
Saket/ N.D./30.11.2012
FIR No. 681/98 State Vs. Salim Ahmed Page 11 of 11