Delhi District Court
State vs Harvinder Singh on 29 July, 2024
IN THE COURT OF SH. VAIBHAV KUMAR
JMFC/MM - 05 (NEW DELHI DISTRICT)
PATIALA HOUSE COURTS: DELHI
State Vs. : Harvinder Singh & Ors. FIR No.: 161/2003
U/s : 186/353IPC P. S. : Sarojini Nagar
DLND020002392004
1. CNR No. of the Case : 40273/2016
2. Date of commission of offence : 11.04.2003
3. Date of institution of the case : 15.04.2004
4. Name of the complainant : Dr. Rakesh Kumar Chaubey
5. Name of accused, parentage &
address : 1). Harvinder Singh S/O Sh. Jaswant
Singh
2). Manjeet Singh S/o Sh. Gurmej
Singh (Abated)
3). Gurmej Singh S/o Sh. Dalip Singh
Abated)
6. Offence complained of : 186/353 of IPC
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 29.07.2024
Argued by :- Sh. Sukhjeet, Ld. APP for the State
Sh. Vijay, Ld. Counsel for accused.
FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 1 of 16
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 11.04.2003, at around 12:45 P.M., at the emergency ward of Safdarjung Hospital, New Delhi, the accused persons namely Harvinder Singh, Gurmej Singh and Manjeet Singh had voluntarily obstructed one doctor namely Rakesh Kumar Chaubey from discharging his public functions and they used criminal force upon him by manhandling him, trying to snatch his stethoscope, abusing him and threatening to kill him. As such, it is alleged that the accused persons namely Harvinder Singh, Gurmej Singh and Manjeet Singh committed the offence punishable under section 186/353/34 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR no. 161/2003 was registered at the police station Sarojini Nagar, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against all the abovementioned accused persons was filed. The court took the cognizance of the offence and they were summoned to face trial. The accused Gurmej Singh expired during the trial and proceedings were abated against him. Copy of chargesheet was supplied to accused Harvinder Singh and Manjeet Singh in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused persons, charge under section 186/353/34 of IPC was framed against the accused Harvinder Sinh and Manjeet Singh on 30.07.201 wherein they pleaded not guilty and claimed trial. Thereafter, the accused Manjeet Singh also expired during the trial and hence proceedings were also abated against him FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 2 of 16 PROSECUTION EVIDENCE
3. During the trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Dr. Rakesh Kumar Dubey PW-2 HC Prakash PW-3 Dr. N D Deshpandey PW-4 Inspector Anant Kumar PW-5 Retired SI Dilip Singh DOCUMENTARY EVIDENCE Ex. PW-1/A Complaint of complainant Ex. PW-1/B Statement of complainant u/s 161 Cr.P.C.
Ex.PW-1/C Site plan
Ex.PW-2/A Arrest memo
Ex.PW-2/B Personal search of accused Gurmaij
Ex.PW-2/C Arrest memo of accused Harvinder Singh
Ex.PW-2/D Personal search memo of accused Harvinder
Ex.PW-2/E Arrest memo of accused Manjeet
Ex.PW-2/F Personal search mem of accused Manjeet
Ex.PW3/A Copy of application
Ex.PW3/B Order No.Z-28015/6/2014-MH-I, 10.02.2014
Ex.PW3/C Certified copy of order of the Ministry
Ex.PW4/A Rukka
4. PW1/Dr. Rakesh has deposed that on 01.01.2003 he as posted as JR in casuality department at Safdarjung Hospital. He has stated that on 11.04.2003 at about 12:45 PM, one patient namely Devender Singh came with a history of RTA along with some attendants and during treatment they refused to make MLC and started abusing and threatening him. He has deposed that other members namely Manjeet Singh, Harvinder Singh and Gurmej Singh also threatening and abusing him and they started pressurizing him to not to make MLC at any cost. He has deposed that all the said members manhandled him and used unparliamentry language, therefore, he rushed to the CMO to inform regarding the incident and in the meanwhile all FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 3 of 16 the accused persons escaped from casuality department. He has deposed that he made written complaint to the Medical Superintendent on 11.04.2003 through proper channel and thereafter the police recorded his statement on 12.04.2003. He has deposed that the said persons had tried to physically assault him due to which the emegency services were hampered. He has further deposed that the police prepared site plan upon his instance. The witness has correctly identified the accused Harvinder Singh in the Court (other accused persons namely Manjeet Singh and Gurmej Singh expired till the time of testimony of PW1). During cross examination, he has deposed that 4 to 5 Doctors were on duty on that day and the patient Devender brought to the hospital 15 minutes prior to the incident. He was unable to recall if patient Devender Singh was unconscious and blood was oozing out of his body. He has deposed that he had mentioned the name of the accused in his complaint, however, he was confronted with his complaint Ex.PW1/A where no name was disclosed. He could not recall whether MLC of the other patient was prepared or not, however, on being asked, he has stated that patient Devender Singh was unconscious when he was brought to the hospital in emergency and blood was oozing from his ear, hence, he required first aid. He has deposed that the doctors had given first aid to Devender Singh and no prescription slip was made regarding first aid. He has further deposed that no security guards at the emergency ward in the year 2003 and he did not call any police official when Devender Singh reached the emergency ward. He has also deposed that he did not mention the name of patient Devender Singh in the MLC register of the same. He has denied the suggestion that the patient was brought for treatment of seizure (mirgi). He was not able to recall the relatives of patient Devender Singh had misbehaved with any other Doctor. Further, he has stated that no other Doctor made any complaint regarding his misbehaviour. He has also deposed that none of accused was arrested in his presence, however, IO had FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 4 of 16 brought the accused to the hospital for the purpose of identification on 11.04.2003. He has also deposed that his statement was not recorded by IO at the time of said identification. He has further stated that IO had inquired and recorded statement of other Doctors including incharge of casuality ward Dr. Desh Pandey in his presence. Rest of the suggestions have been denied by the witness.
5. PW2/Hc Prakash has deposed that on 12.04.2003, he was posted as constable at PS Sarojini Nagar and at around 10:00 PM accused Gurmaij Singh came to the PS and met with Anant Kumar. He has deposed that the IO arrested the accused Gurmaij Singh and prepared documents. He has further deposed that on 15.12.2003 when he was present at PS, one accused Harvinder Singh came to the PS at around 3:30 PM and he was arrested by the IO. He has further deposed that on 08.01.2004 accused Manjeet Singh came to the PS and he was arrested by IO. Witness has correctly identified the accused Harviner Singh in the court.
6. PW3/N. D. Desh Pandey has deposed was summoned to produce the duty roster of Safdarjung Hospital of year 2003, however, the said roster could not be produced as it was not available. He has stated that records were disposed off after approval from the concerned authority.
7. PW4/Inspector Anant Kumar has deposed has deposed that on 12.04.2003 he was posted as SI at PS Sarojini Nagar and he received a written complaint through proper channel made by the complainant Dr. Rajesh Kumar. He has deposed that he recorded the statement of Dr. Rakesh and prepared rukka upon which FIR was registered. He has further deposed that he along with Ct. Prakash went to Safdarjung Hospital and prepared site plan upon the instance of the complainant. He has also deposed that three accused persons FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 5 of 16 were arrested by him and arrest memos were prepared. He has also stated that one more person stated to be involved in the incident, however, he could not traced out and later on investigation was assigned to the other official as he was transferred. During his cross examination, he has deposed that he received a complaint through Duty Officer and he did not go to Safdarjung Hospital on 11.04.2003. He has stated that he did not record any statement of Medical Superintendent of the said hospital and neither did he collect duty roster from the hospital. He has deposed that the said complaint was not endorsed by the Duty Officer or SHO. He has further deposed that the name of the accused Harvinder Singh was not mentioned in the complaint and accused Harvinder Singh was not found at the spot when he reached there.
He has deposed that the accused Harvinder was arrested upon the instance of the complainant, however, signature of the complainant were not obtained on the arrest memo. He has deposed that he had not obtained any permission from the Competent Authority under Section 195 Cr.P.C., however, the same was obtained by subsequent IO. Further, suggestions have been denied by the witness.
8. PW5 SI Dilip has deposed that in the year 2003, he was posted as ASI at PS Sarojini Nagar when the investigation was handed over to hom. He has deposed that he finalized the charge sheet and submitted the same in the Court. During his cross examination, he has deposed that the first IO had requested for the permission under Section 195 Cr.PC., however, he pleaded ignorance regarding any such permission being granted. He has deposed that he did not published any advertisement pertaining to search of the accused and neither did he make any eye witness of the incident. He has further deposed that he never inquired or met the accused Harvinder Singh and he only saw him in the Court.
FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 6 of 16STATEMENT OF THE ACCUSED PERSON AND DEFENCE EVIDENCE
9. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded on 22.11.2023 without oath under section 281 r/w 313 CrPC, wherein he has stated that he is innocent and has falsely been implicated in the present case. He initially stated that he wishes to lead defence evidence however, later on he chose not to lead any defence eviidence.
ARGUMENTS
10. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
12. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 7 of 16INGREDIENTS OF THE OFFENCE
13.In order to bring home the charge against the accused for the offence punishable under Section 186/353 of the IPC read with section 34 of IPC, the prosecution is required to prove the ingredients of the aforesaid offences. It becomes relevant to reproduce the said offences as under:
Section 186 - Obstructing public servant in discharge of public functions:
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
Section 353 Assault or criminal force to deter public servant from discharge of his duty- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as 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.
14.In the instant case, the prosecution is required to prove that while Dr. Rakesh Kumar Chaubey was at duty, the accused, Harvinder Singh used criminal force upon him and obstructed him from discharging his public duty. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 8 of 16 that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE
15.Before appreciating the facts of the instant case, it is pertinent to note that the FIR was registered under sections 186/353/34 of the IPC. The import of the sections 186/353is to punish persons who create obstruction in the discharge of duties of public servants. While Section 186 IPC envisages merely voluntary obstruction, section 353 IPC lays down an additional condition that such obstruction must be caused by assaulting or using criminal force against the public servant. In fact, the distinction between these two provisions has been clearly borne out in the case of Durgacharan Naik & Ors. Vs. State of Orissa AIR 1966 SC 1775 by the Hon'ble Supreme Court as under-
"It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with contempt of the lawful FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 9 of 16 authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body."
16.In the present case, qua the offence under section 186 IPC, it is imperative to understand certain preconditions 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. In Makardhwaj vs. State AIR 1954 Orissa 175, it has been held, "non-compliance of the requirements of Section 195 Cr.P.C. is fatal to the prosecution of offence punishable under Section 186 IPC."
17.It has been the argument of the Ld. Counsel for the accused that there was no sanction /complaint made under section 195 Cr.P.C. and hence the accused should not have been prosecuted. Ld. Counsel has placed his reliance upon Sachin and Others Versus State of NCT of Delhi Crl. Rev.P. 569/2017 whereby the Hon'ble High Court of Delhi has decided that: -
"With regard to the charges framed under sections 186/353 IPC is concerned, said charges could not have been framed in the absence of compliance with section 195 Cr. P.C. No court can take cognizance of an offence under section186 IPC unless a complaint is made by the proper officer in the proper format as prescribed under section 195 Cr. P.C. Breach of section 195 Cr. P.C. renders the action void ab initio. Non-compliance of section 195 Cr. P.C. is a non-curable defect and renders the proceeding void ab initio. Further, it may be seen that section 353 IPC has also been invoked in the subject case which is, in fact, an extension of section 186 IPC. The FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 10 of 16 allegations with regard to section 353 IPC, as contained in the subject FIR, really fall in the nature of an offence under section 186 IPC. As noticed above, no Court could have taken cognizance of the offence under section 186 IPC except on a complaint of a proper officer made under section 195 Cr. P.C. Further, it may be seen that the entire proceedings smack of arbitrariness and vindictiveness on the part of the complainant and falls squarely within the parameters of the decision of the Supreme Court in Manoj Sharma v. State, (2008) 16 SCC 1 and Prabhu Chawla v. State of Rajasthan, (2016) 16 SCC 30 : AIR 2016 SC 4245, wherein, the Supreme Court has held that substantive justice requires that proceedings of such a mala fide nature should be quashed in exercise of powers under section 482 Cr. P.C."
18.In the present case, the Complainant, i.e., PW1/ Dr. Rakesh Kumar Chaubey had made a complaint regarding the incident to his CMO who then forwarded the complaint to the S.H.O. concerned for the purpose of registration of FIR. Upon this complaint, the SHO registered the instant FIR and conducted investigation and accordingly the chargesheet was filed before the court. Now the issue is whether the complaint made by the complainant and forwarded by the CMO to the SHO will be considered as a complaint as per the mandate of section 195 CrPC. The Hon'ble High Court of Delhi in the case of Santokh Singh Chawla v. State (NCT of Delhi), 2023 Del 4773 decided on 31-07-2023 has observed that: -
"As far as the aforesaid communication dated 10.07.2020 from the office of Executive Magistrate is concerned, the same cannot be termed as a complaint FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 11 of 16 under Section 195 Cr. P.C. for the reasons that firstly, the same is not addressed to the learned Magistrate or the Court, rather it has been addressed to ASI posted at P.S. Kapashera, and secondly, it merely says that a complaint had already been lodged by them with the police and thus, the same be filed under Section 195 Cr. P.C."
19. Also, the Hon'ble High Court of Delhi has held in the case of Gurucharan Singh Arora v. The State, (2002) 96 DLT 181 that: -
"6...... It is true that no particular form is prescribed in which the complaint should be made and the substance of the complaint that is to be read. It is not necessary that it should categorise elements of the offence to be charged. It is enough that the facts alleged should constitute an offence for which the accused is charged. It does not matter even if the complainant quotes wrong Sections. The complaint is meant to put the machinery of law in motion. Whether allegations were made with a view to take action against the accused would depend upon the facts and circumstances of each case.
7. In this case, there was nothing in the complaint quoted above to indicate that the complaint was made to the Magistrate for taking action under Section 186 IPC. Mere consent of the SHO for prosecution of the accused cannot be construed as the complaint. Further, there is nothing on record to indicate that the cognizance was taken by the Magistrate on the basis of the complaint under Section 195 Cr.P.C. Therefore, the charge under Section 186 IPC against the petitioner is not sustainable. It is needless to observe that in all such cases, the complaint should be filed by the concerned public servant with a prayer to take action FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 12 of 16 against the accused and whenever such complaint under Section 195 Cr. P.C. is filed along with charge-sheet under Section 173 Cr. P.C., the Courts while taking cognizance, should also take note of such complaint, to avoid any technical objection at a later stage..."
20.Hence it is clear from the abovementioned discussion that, for setting the prosecution for an offence under section 186 IPC, a complaint has to be filed before the court either by the public officer against whom the offence has been committed or by any officer to whom such public officer is subordinate. The term complaint has been defined under section 2(d) of the Cr.P.C. as "any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". Therefore, there is no fixed format for making of a complaint, however, it has to be made to the court and not to the police. It is pertinent to note that, in the case in hand, no complaint under section 195 Cr.P.C. was ever filed before the court either by the complainant/injured or by his superior officer. The complainant had made a complaint to his superior officer who in turn forwarded the same to the SHO concerned for registration of FIR. Even both the investigation officers (IO) were questioned by the ld. Counsel for the accused regarding a complaint under section 195 Cr.P.C. but they could not clarify the status of the same rather they kept on passing on the buck to each other. The fact remains that a complaint under section 195 Cr.P.C. was never received by the court and it was not even accompanied with the chargesheet. As such, in view of the above stated discussion, the non-compliance of section 195 Cr.P.C. is fatal to the case of the prosecution.
FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 13 of 1621.Now coming to the allegations regarding the offence punishable under section 353 IPC, it may be noted at the very outset, the entire case of prosecution hinges upon the testimony of PW1, Dr. Rakesh Kumar Chaubey, who is the victim himself and he has deposed in his examination-in-chief that when he was performing his duty as a Junior Resident doctor at Safdarjung Hospital on 11.04.2003, one patient namely Devinder Singh came along with his attendants at around 12:45 P.M. for treatment. He has deposed that the said attendants obstructed him from making a Medico legal certificate of the patient and they manhandled him and also abused him. For the purpose of proving the allegations under section 353 IPC, the prosecution has to prove that the accused had used criminal force or assault upon the complainant. Section 350 IPC defines criminal force as: -
"Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other."
22.Section 351 of IPC defines Assault as: -
"Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault." Further, the explanation to section 351 IPC clarifies that "mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault."FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 14 of 16
23.In the instant case, the complainant has stated that the accused had manhandled him however, he has nowhere mentioned how he was manhandled or in what manner the criminal force was used upon him or the manner in which he was assaulted. The prosecution has only examined one witness regarding the incident i.e., the complainant himself. The complainant has mentioned in his cross examination that other doctors and some public persons were also present during the incident however, no other person was made to join the investigation despite availability. In view of these circumstances, the testimony of the complainant becomes of prime importance. The complainant/PW1 has nowhere deposed regarding any use of criminal force upon him, rather he has stated that the accused had used abusive language towards him which cannot be covered under the definition of assault unless accompanied with some action or gesture as explained in the explanation provided in the section 350 itself.
24.Also, The PW1 has deposed that the police officials brought the accused persons at the hospital in the evening of the day of incident i.e., 11.04.2003 for the purpose of their identification. However, the PW2 and PW4 have deposed that the accused persons were apprehended after a few days of the incident. Also, the IO/PW4 has deposed that the site plan was prepared by him on the day of incident upon the instance of the complainant/PW1, however, the said document does not bear the signatures of the PW1 to show whether it was prepared upon his instance. Further, the PW4 has deposed that the complaint in the present case was received at the PS on 12.04.2003 and FIR for the present offence was registered on 12.04.2003, then how could the police take action prior to the receiving of the complaint i.e., on 11.04.2003. This fact raises suspicion over the case of the prosecution. Moreover, the PW3 was called to produce the duty record of the hospital to FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 15 of 16 show whether PW1 was on his official duty on that day, however, he could not produce the relevant record and it was not even made a part of the chargesheet. Hence, there in no other evidence apart from the testimony of the complainant to show whether the complainant was performing his official duty on the date of incident or not.
CONCLUSION
25.To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the ingredients of the offence punishable under sections 186/353/34 of IPC beyond reasonable doubt, however, the prosecution has been miserably failed to prove it. There is no complaint under section 195 Cr.P.C. regarding the abovementioned offences. Neither there is evidence to link the accused Harvinder Singh with the crime charged against him. Resultantly, the accused, is hereby found not guilty and is hereby acquitted of the offence under Sections 186/353/34 of IPC.
Announced in the open court on 29.07.2024 in the presence of the accused.
Digitally signed VAIBHAV by VAIBHAV
KUMAR
KUMAR Date: 2024.07.29
(Vaibhav Kumar) 21:29:57 +0530
JMFC-05, Patiala House Courts,
New Delhi District, 29.07.2024
Note:- This judgment contains 16 pages and each page has been signed by me.
FIR No. 161/2003, PS Sarojini Nagar State V. Harvinder Singh & Ors. Page 16 of 16