Jharkhand High Court
Vijay Kumar vs State Of Jharkhand on 14 November, 2014
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr.Revision No. 277 of 2011
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Vijay Kumar ......Petitioner.
Versus
State of Jharkhand ... Opposite Party.
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CORAM : HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Petitioner :M/s.Manoj Tandon, N.K.Singh, Shiv
Shankar, Advocates.
For the State :Mr.A.K.Sinha,A.P.P.
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06/14.11.2014The instant application has been filed against the order dated 29.10.2010 passed by learned Judicial Magistrate, Ist Class, Ranchi in G.R.NO.4999/2008(Doranda P.S.Case NO.423/2008) whereby the application filed by the petitioner under Section 239 read with Section 258 Cr.P.C. has been rejected.
Learned counsel for the petitioner has submitted that the petitioner has been charge-sheeted for the offence under Section 160 I.P.C. for committing affray and affray has been defined under Section 159 I.P.C.; it is contended that the ingredients for constituting the offence of affray is not made out ; that the perusal of the FIR and evidence collected in the police papers would reveal that two students had come to purchase stationery articles from the shop of one Yadubir Jha and the students insisted to give them the books and copies on credit but the shop-keeper refused and asked them to clear the previous dues upon which the two students started shouting and the petitioner as a neighbour came and tried to pacify the matter and reason out with the students but they became aggressive and created public nuisance and the petitioner to intimidate them had flashed out his pistol. That the occurrence did not take place in a public place rather it was within the premises of the shop. Thus, in the given facts the ingredients for attracting the offence under Section 160 I.P.C is not made out against the petitioner as for disturbance of peace there has to be a fight between two or more persons but there is no material to show that the petitioner had indulged in fighting with any person causing disturbance of public peace. That the petitioner had a valid licence for the pistol and the trial court without appreciating the material facts has illegally rejected the application for discharge.
On the other hand learned A.P.P. Has contended that the order requires no interference and the trial court has rightly rejected the application on the ground that there is no provision for discharge under Section 239 Cr.P.C. in a summons case triable under Section 258 Cr.P.C.
For appreciation of the submissions advanced by the counsels it is pertinent to refer to the provisions of Section 159 and Section 160 IPC which read as follows:-
"159. Affray- When two or more persons by fighting in public place, disturb the public peace, they are said to "commit an affray".
160. Punishment for committing affray.-
Whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both."
It is noticed that Section 159 prescribes that for constituting the offence of affray three ingredients are essential, firstly the fight or fighting must be between two or more persons; secondly the fighting must take place in a public place and thirdly such fighting must account for disturbance of public peace. It is implicit that absence of any of the ingredients will not constitute an offence under Section 160 IPC.
On going through the materials in the case diary it appears that Yadubir Jha is the owner of the 'Books and Magazine Corner' shop which is adjacent to the shop of the petitioner, who owns a medicine shop. No doubt the occurrence took place in the shop of Yadubir Jha but as per description of the place of occurrence there are other shops adjacent to each other and public at large visit the shops. Yadubir Jha, in his statement under Section 161 Cr.P.C. at para 10, has stated that two students had come to his shop and demanded copies on credit and when he asked them to clear the earlier dues of Rs.25/- they refused to clear the dues and demanded that the copies be supplied to them on credit and on refusal they became belligerent and aggressive whereupon this petitioner had intervened but the two students were adamant and started shouting upon which the petitioner had flashed his pistol to scare and frighten the students whereafter the two students took to their heels. This has been supported by the witnesses in paras 11,12,13,14 who are either shop- keepers or the customers. As per materials on record the petitioner had produced his arms license which was verified by the police and was found to be in order.
It is clear from the material on record that the petitioner was not the aggressor rather it were the two students who were the aggressors and responsible for disturbing the public peace and not the petitioner. The statements of witnesses reveals that petitioner had intervened to pacify the matter. It was but a natural conduct for a neighbour to come to the help of his fellow shopkeeper so as to protect him and ensure that no untoward incident took place. The material facts show that both the students were aggressors and the possibility cannot be ruled out that the petitioner flashed his licenced pistol either for his own protection or to frighten them.
It is evident that the trial court has not discussed the available material facts for recording its satisfaction that a prima facie case is made out for the offence under Section 160 IPC against the petitioner. On the contrary, it has rejected the application merely by stating that application under Section 239 Cr.P.C. is not maintainable in a summons case.
In view of the discussions as per materials there is no ingredient to make out a prima facie case under Section 160 IPC against the petitioner thus the impugned order is not sustainable on facts and in law and is hereby set aside. Accordingly, the petitioner is discharged of the offence under Section 160 IPC.
In the result, the revision stands allowed.
(Amitav K. Gupta, J.) Biswas