Delhi District Court
State vs . Sanjay Bhasin & Anr on 14 November, 2011
IN THE COURT OF SHRI RAJINDER SINGH: METROPOLITAN
MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI
State Vs. Sanjay Bhasin & Anr
FIR No. 532/97
U/s 186/353/34 IPC
P.S. Kotla Mubarakpur
J U D G M E N T
Serial No. of the Case : 572/2
Unique Identification No. : 02406R0058382000
Date of Institution : 01.07.2000
Date on which case reserved for
judgment : 04.11.2011
Date of judgment : 14.11.2011
Name of the complainant : HC Ram Dhari Singh
No.1953, Traffic Circle Defence
Colony, New Delhi
Date of the commission of offence: 25.10.1997
FIR No. 532/97
P.S. Kotla Mubarakpur Page No.1 of 7
Name of accused : (1) Sanjay Bhasin
s/o Sh. Vishambar Nath
r/o C599, Saraswati Vihar,
New Delhi
(2) Roop Kumar
s/o Sh. Aganoo Ram
r/o S66, Mangolpuri, New Dlehi
Offence complained of : U/s 186/353/34 IPC
Offence charged of : U/s 186/353/34 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 01.07.2000
Date on which case reserved for
judgment : 04.11.2011
Date of judgment : 14.11.2011
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
On 25.10.1997 at about 07:30PM on One Way NDSE Part1 Near Orchid Hotel, New Delhi, within the jurisdiction of P. S. Kotla Mubarakpur, both the FIR No. 532/97 P.S. Kotla Mubarakpur Page No.2 of 7 accused persons along with 12 unknown persons obstructed Ct. Ramdhari Singh, a public servant in the discharge of his official duties and also assaulted him with intent to prevent him from discharging his duties.
2. The report U/s 173 Cr. PC was filed on 01.07.2000. Cognizance of the offences was taken. Compliance of Section 207 Cr. PC was done.
3. Charge for the offences U/s 186/353/34 IPC against the accused Sanjay Bhasin was framed on 20.10.2006 and against accused Roop Kumar on 23.10.2007. Both the accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined 2 (two) PWs in all.
PW1 ASI Karan Singh (duty officer) is a formal witness. He proved the copy of FIR Ex.PW1/A (OSR). His endorsement on rukka is Ex.PW1/B. PW2 Ct. Ramdhari stated, on 25.10.97 I was posted at Defence Colony Traffic Circle near NDSE Part1 and PartII Red Light one way from 08:00AM to 09:00PM. At about 07:30PM one blue colour maruti car bearing No.DL4CK5502 came from NDSE Part1 one way, it was coming from wrong side. I gave signal to stop the said maruti van. The driver of the said maruti van stopped his vehicle and caught hold of my shirt and slapped me on my face. On my objection FIR No. 532/97 P.S. Kotla Mubarakpur Page No.3 of 7 he came out from the van and beat me. The driver of the van Sanjay Bhasin is present in the court today. The other associates of accused also came out and beat me and also obstructed me while I was on official duty. The other associate of accused Sanjay Bhasin is also present in the court today. I raised alarm for help. On hearing my alarm Ct. Ashok & Ct. Rajesh came and saved me from the accused persons. With the help of Ct. Ashok & Ct Rajesh accused Sanjay Bhasin was apprehended. Other accused fled away from spot with the said maruti van. My complaint is Ex.PW2/A bearing my signature at point A. Police inspected the site and prepared site plan at my instance. The site plan is Ex.PW2/B. My shirt was taken into possession vide memo Ex.PW2/C bearing my signature at point A. The torn shirt of PW1 is Ex.P1.
Summons returnable on 09.06.2011 were received back with the report that the PIS number and belt number of other witnesses may kindly be provided. The record was perused. It was observed that the PIS number and other details of witnesses were not mentioned on the record. One more opportunity was granted to the prosecution to get the witnesses summoned, again the witnesses were reported untraceable. Since the details of the witnesses were not on record, vide order dated 26.07.2011, PE was closed. STATEMENT OF ACCUSED :
5. On 16.08.2011 separate statement of both the accused persons U/s 313 FIR No. 532/97 P.S. Kotla Mubarakpur Page No.4 of 7 Cr. PC was recorded. Accused denied all the allegations against him. They did not wish to lead defence evidence.
DEFENCE EVIDENCE :
6. No defence evidence was led by the accused persons. ARGUMENTS :
7. Arguments heard.
REASONING :
8. The complaint U/s 195 Cr.PC was not proved. The accused persons were charged with the offences punishable U/s 186/353/34 IPC.
9. In the judgment reported as Gurinder Singh & Anr. Vs. State (Delhi), 1996 (2) CC cases, 396 (High Court), the Hon'ble High Court at para No.7 & 8 of aforesaid judgment held :
"7. Mr. R. D. Jolly on the other hand laid stress that FIR No. 532/97 P.S. Kotla Mubarakpur Page No.5 of 7 even if no cognizance could be taken under Section 186 IPC yet there is no bar to take cognizance of the other substantive offences with which these petitioners charged. According to him offences under Section 353/306 IPC are substantive offences, hence the proceedings as a whole cannot be quashed. To support his arguments he placed reliance on the decision of Supreme Court in the case of Durgacharan Naik & Ors. v. State of Orissa, AIR 1966 Supreme Court 1775, where the Apex Court while considering the ingredients of Section 353 & 186, IPC, held that these are two distinct offences. The quality of the two offences is also different. There cannot be any quarrel with this proposition, but at the same time the Apex Court in this very case sounded a note of caution when it observed that :
The provision of Section 195 Cr. PC 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, on the ground that the latter offence is a minor one of the same character or by describing the offence as one punishable under some other Section of the Penal Code, though in truth and substance the offence falls in the category of Sections mentioned in Section 195 Cr. PC. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of Section 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.
8. I think these observations and caution note spell out by the Supreme Court squarely apply to the facts of the case. On the facts of this case it would hardly be possible to separate the element of insult from the so called assault because the two are so interwoven in the episode, that they become merged one with the other. Hence, by adopting and resorting to the device of Section 353 which is a camouflage the prosecution could not evade the provisions of Section 195 Cr. PC in this case. The facts have to be considered as a whole. There cannot be splitting up of the facts. Considering the acts as a whole if these disclose an offence for which a special complaint is FIR No. 532/97 P.S. Kotla Mubarakpur Page No.6 of 7 necessary under the provision of Section 195 Cr. PC the Court cannot take cognizance of the case at all unless that special complaint had been filed. In the instant case the very act of obstruction lies in the alleged assault and use of criminal force. In substance the offence in question would fall in the category of Section 195, Cr. PC and it was not open to bypass its provisions even by choosing to prosecute under Section 353/506 IPC. Mr. R. D. Jolly as pointed above had conceded that charge on the facts of this case under Section 353 IPC is not made out because the public servant was not prevented or deterred in the discharge of his official duties."
10. In view of the judgment of the Hon'ble High Court as cited above, the case against the accused persons is not sustainable. Accordingly, both the accused persons are acquitted of the offences punishable U/s 186/353/34 IPC.
11. File be consigned to Record Room after due compliance.
Pronounced in open court (RAJINDER SINGH)
on 14.11.2011 MM04(South):Saket Courts:New Delhi
14.11.2011
FIR No. 532/97
P.S. Kotla Mubarakpur Page No.7 of 7