Himachal Pradesh High Court
Shubham Kashyap Son Of Shri vs Bhajan Lal And Others on 16 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 16th DAY SEPTEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC No. 520 of 2021
Between:
SHUBHAM KASHYAP SON OF SHRI
RAM KISHORE, AGED 29 YEARS,
RESIDENT OF VILLAGE MANDI
MANWAN, POST OFFICE KOTHIPRA,
TEHSIL SADAR, DISTRICT BILASPUR,
HIMACHAL PRADESH.
....PETITIONER
(PETITIONER PRESENT IN PERSON)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH DISTRICT MAGISTRATE BILASPUR.
2. YASHWANT SINGH SON OF (NOT
KNOWN TO THE PETITIONER)
PRESENTLY STATION HOUSE
OFFICER, POLICE STATION BARMANA,
DISTRICT BILASPUR, H.P.
3. SHRI KARAN SINGH, SON OF (NOT
KNOWN TO THE PETITIONER),
PRESENTLY POSTED AS SUB
INSPECTOR OF POLICE.
4. SHRI AJAY KUMAR, SON OF (NOT
KNOW TO THE PETITIONER),
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2
PRESENTLY POSTED AS CONSTABLE
.
NO. 528.
5. SHRI VIVEK GURANG SON OF (NOT
KNOWN TO THE PETITIONER)
PRESENTLY POSTED AS DRIVER
ALL POSTED IN POLICE STATION,
SADAR, DISTRICT BILASPUR,
HIMACHAL PRADESH.
....RESPONDENTS
(MR. DINESH THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH AMIT
KUMAR DHUMAL, DEPUTY ADVOCATE
GENERAL)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
By way of instant petition filed under Section 482 Cr.PC, prayer has been made by the petitioner for quashing of Kalandara filed under Sections 186 and 189 against him in the court of learned JMFC, Bilaspur, District Bilaspur, HP.
2. Precisely, the facts of the case as emerge from the record are that on 8.4.2020 i.e. at 11:15am, Inspector Karan Singh alongwith other police officials reached Mandi Manwan on patrolling duty. While aforesaid officer was ascertaining the location of the Masjid, where some meeting had to take place inter-se Hindus and Muslims for keeping peace in the area, present petitioner allegedly asked the aforesaid police official that why he ::: Downloaded on - 20/09/2022 20:02:16 :::CIS 3 has come here. Police official told the petitioner that he has come to see .
whether there is any corona case, but allegedly, petitioner got excited and started misbehaving with the police officials. Petitioner along with his mother came on the spot and started threatening the police officials that he would get them transferred. In the aforesaid background, Kalandara under Sections 186 and 189 IPC came to be filed against the petitioner in the court of learned court below and as such, petitioner has approached this Court in the instant proceedings.
3. Primarily, ground as has been raised in the instant petition and as has been highlighted by the petitioner, who has come present in person, is that case under Sections 186 and 189 IPC could not be instituted against him without there being any written complaint. To strengthen the aforesaid submission, petitioner invited attention of this court to the Section 195 Cr.PC, perusal whereof reveals that no case under Sections 172 to 188 IPC can be registered without there being any written complaint to the higher authority. Section 195 Cr.PC reads as under:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or ::: Downloaded on - 20/09/2022 20:02:16 :::CIS 4
(iii) of any criminal conspiracy to commit such offence, .
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-
clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court;
and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;::: Downloaded on - 20/09/2022 20:02:16 :::CIS 5
(b) where appeals lie to a Civil and also to a Revenue Court, .
such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
4. The Gujarat High Court in judgment dated 15.2.2019, titled Mohmadmohsin mohmadirfan Chhalotiya v. State of Gujarat, in R/Special Criminal Application No. 4105 of 2017 2019(2) RCR (Criminal) 397, has held as under:
" 7 In order to appreciate the rival contentions on the aforesaid issue, it will be apposite to have closer look at some of the decisions of the Supreme Court for ascertaining the true nature and import of the provisions of section 195 of the Code.
Section 195 of the Cr.P.C. reads as under: Section 195:
Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence:
(1) No Court shall take cognizance-(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administrative subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have5 been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-::: Downloaded on - 20/09/2022 20:02:16 :::CIS 6
clause (i) or sub-clause (ii), a [except on the complaint in .
writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. (Emphasis supplied by me)"
8.The first in point of time is the decision of the Supreme Court is in the case of Basir-ulHaq (supra). (The relevant sections considered are sections 182, 297 and 500 of the IPC). The relevant observations are incorporated as under:
14. Though, in our judgment, Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts ::: Downloaded on - 20/09/2022 20:02:16 :::CIS 7 disclose primarily and essentially an offence for which a .
complaint of the court or of the public servant is required.
In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the7 offence as being one punishable under some other section of the Indian penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section of the Code of Criminal Procedure. Merely by changing the garb or label of an offence which is essentially all offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it.
9 Thus, the Supreme Court has approved the decision of the Full Bench of the Calcutta High Court in the case of Satis Chandra Chakravarti v. Ram Dayal De, AIR 1921 Cal 1, and has held that section 195 of the Cr.P.C does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages."
5. In the case at hand, there is allegation against the petitioner that he while extending threats intentionally obstructed the police officials from discharging their duty and as such, case under Sections 186 and 189 IPC came to be registered against him.
6. Section 186 IPC provides that "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."
::: Downloaded on - 20/09/2022 20:02:16 :::CIS 87. Section 189 IPC provides that "whoever holds out any threat of .
injury to any public servant, or to any person in whom he believes that public servant to be interested, for the purpose of inducing that public servant to do any act, or to forbear or delay to do any act, connected with the exercise of the public functions of such public servant, shall be punished with impris-
onment of either description for a term which may extend to two years, or with fine, or with both."
8. Though contents of the Kalandera, if read in its entirety reveal that on the date of the alleged incident, petitioner simply asked the police officials that why they have come on the spot. Police officials disclosed to the petitioner that they have come to ascertain corona cases in the area, but in response to the aforesaid disclosure made by the police, petitioner allegedly got excited and started extending threats to the police. Section 195 CrPC, which has been reproduced herein above, clearly reveals that no case under Section 186 can be filed without there being complaint in writing. In the instant case, allegedly before instituting the proceedings in the court of law, no written complaint ever came to be lodged by the complainant to the higher authorities and as such, there appears to be merit in the claim of the petition that no case much less under Section 186 IPC is made out against him.
::: Downloaded on - 20/09/2022 20:02:16 :::CIS 99. Mr. Dinesh Thakur, learned Additional Advocate General, .
though fairly acknowledges the factum with regard to non-filing of the written complaint before the institution of the Kalandara against the petitioner under Section 186 IPC, but submitted that careful perusal of contents of the Kalandara reveal that petitioner extended threats to the police officials while they were discharging official duty and as such, he has been rightly booked under Section 189 of IPC
10. While placing reliance upon judgment dated 15.2.2019, passed by the Gujarat High Court, in Mohmadmohsin's case supra, petitioner in person submitted that words " I will see you and will approach high Court against them" do not satisfy ingredients of expression threat of injury since merely during altercation such words were said. Petitioner further submitted that though there is no material available on record to substantiate the aforesaid claim of the police officials, but even otherwise, allegation as contained in Kalandara, prima-facie does not disclose any offence much less under Section 189 IPC.
11. Having heard learned counsel for the parties and perused material available on record, this court finds from the contents of the Kalandara that allegedly, petitioner extended threats to the police to get him transferred from the Bilaspur, but whether such words would amount ::: Downloaded on - 20/09/2022 20:02:16 :::CIS 10 to threat is a question needs to be determined in the instant proceedings.
.
As has been taken note herein above, High Court of Gujarat in Mohmadmohsin's case supra has held that words " I will see you or will approach the High Court against them" do not satisfy the ingredients of expression threat of injury, especially when such words were said during the altercation. Relevant para of the afore judgment reads as under:
"20. Thus, the in order to constitute the offence punishable under the aforesaid section, the necessary ingredient is threat of injury. Section 44 of the IPC defines injury which denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. In order to constitute any threat of injury there must be an intention to inflict injury, loss or pain. In the present case, the contents of the F.I.R. reveal that the petitioner had uttered the words I will see you all and will approach the High Court against them. Thus, assuming that the petitioner has occurred the aforesaid words, the same will not satisfy the ingredients of the expression threat of injury, since merely during an altercation, if he utters such words will not amount to an intention to inflict injury, loss or pain. Unquestionably, mere threat to approach the High Court does not denote injury.
Lastly, examining the provisions of section 506(1) of the IPC, which stipulates punishment for criminal intimidation, it can be safely presumed that in the wake of the present facts, the ingredients of section 503 of the IPC, which defines criminal intimidation are also not satisfied. To satisfy the ingredients of Section 503 of the IPC, the threat must cause alarm in the mind of the victim which causes a person to do any act which he was not legally bound to do or to omit to do any act which he was legally entitled to do. No such feature is emerging in the present case. Hence, the F.I.R. registered for the offence punishable under sections 186, 189 and 506(1) of the IPC against the petitioner cannot be allowed to be sustained in view of the aforenoted observations and analysis."::: Downloaded on - 20/09/2022 20:02:16 :::CIS 11
12. Hon'ble Apex Court in judgment titled State of Haryana and .
others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 has held that the High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Relevant para is being reproduced herein below:-
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the 511 inherent powers of the High ::: Downloaded on - 20/09/2022 20:02:16 :::CIS 12 Court to do justice, between the State and its subjects, it .
would be impossible to appreciate the width and contours of that salient jurisdiction."
13. Subsequently, Hon'ble Apex Court in Vineet Kumar and Ors.
v. State of U.P. and Anr., while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to quashed. The Hon'ble Apex Court has further held that the saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In the aforesaid case, the Hon'ble Apex Court taking note of seven categories, where power can be exercised under Section 482 Cr.PC, as enumerated in Bhajan Lal (supra), i.e. where a criminal proceeding is manifestly attended with malafides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, quashed the proceedings.
::: Downloaded on - 20/09/2022 20:02:16 :::CIS 1314. In view of the detailed discussion made herein above and law .
taken into consideration, there appears to be sufficient ground for this Court to exercise its inherent jurisdiction under Section 482 Cr.P.C, for quashing of FIR and consequent criminal proceedings against the petitioners, to prevent abuse of process of law and to prevent unnecessary harassment to the petitioner against whom there is no evidence to connect him with the commission of offences as incorporated in the FIR. Otherwise also, continuance of the criminal proceedings against the petitioner in the present case would be a sheer wastage of time of the learned trial Court and the same would amount to subjecting the petitioner to unnecessary and protracted ordeal of trial, which is bound to culminate in acquittal. If the evidentiary material collected on record to prove the guilt of the petitioner is perused in its entirety, this is no sufficient material to connect the petitioner with the offence alleged to have been committed by him. To the contrary if on the basis of material adduced on record by the investigating agency, trial is allowed to continue, great prejudice would be caused to the petitioner and same would amount to sheer abuse of process of law.
15. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon'ble Apex Court, this Court finds ::: Downloaded on - 20/09/2022 20:02:16 :::CIS 14 merit in the present petition and as such same is allowed and proceedings .
initiated against the petitioner under Section 186 and 189 of IPC, pending adjudication in the court of learned JMFC, Bilaspur, are hereby quashed and set-aside and petitioner is acquitted of the charges framed against him in the aforesaid FIR. Accordingly, present petition is disposed of, so also pending applications, if any.
16th September, 2022 (Sandeep Sharma),
(manjit) Judge
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