Himachal Pradesh High Court
State Of H.P vs Neeraj Sharma on 17 June, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.Appeal No. 44 of 2007
Reserved on : 12.6.2019
Date of decision : 17.06.2019
State of H.P ... Appellant.
Versus
Neeraj Sharma
...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Ms. Rita Goswami, Addl. A.G. with Ms. Divya Sood, Dy. A.G. & Mr. Manoj Bagga, Assistant Advocate General.
For the Respondent : Mr. Guljar Singh Rathore, Advocate.
Anoop Chitkara, Judge
1. This case is based on commission of offences punishable under Sections 186 and 189 of the Indian Penal Code. It appears that this complaint by the Police was filed under Section 173 of the Cr.P.C.
However, the format of the complaint does not mention whether it is specifically filed under Section 173 Cr.P.C. or was filed in the form of 1 Whether reporters of Local Papers may be allowed to see the judgment?
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complaint under Section 190(b) of the Cr.P.C. It has been presented .
through Station House Officer, Police Station, Sadar, District Solan.
Since, the learned Judicial Magistrate did not record the statement of the complainant under Section 200 Cr.P.C prior to recording his satisfaction under Section 204 Cr.P.C., hence, the learned Judicial Magistrate took it as a case based on police report under Section 173(2) Cr.P.C. Be that as it may, it would not affect the outcome of the verdict.
2. The gist of the complaint is as follows:
(a) that on 18th July, 2002 HHC Jai Kishan No. 349 and HC Rakesh Kumar No. 142 were deputed in "Police - Help Room" at bus stand Saproon.
(b) At about 10-05 a.m, two buses, one bound for Dharampur and another for Kasauli were parked and another bus number HP-51-3851 was also parked. At that time another bus bearing No. HP-14-2756, which was bound for Rajgarh came and the driver of the bus parked his bus in front of the other bus No. HP-51-3851.
(c) Because of this, the movement of people as well as movement of vehicle obstructed.::: Downloaded on - 28/09/2019 23:31:50 :::HCHP
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(d) To remove this hinderance, HC Rakesh Kumar No. 142 asked HHC Jai Kishan No. 349 to direct the driver of .
bus No. HP-14-2756 to move his bus ahead so that obstruction to traffic is not caused.
(e) when such directions were conveyed to the driver of the bus, then the owner of the bus Neeraj Sharma, who is respondent-accused, refused to move his bus and stated that he throws wads of currency notes on the police and despite that police is creating obstruction to him. Consequently, entry No.3 in daily diary report dated 18/07/2002, was exhibited as Ext.PA.
(f) After investigation, the complaint under Section 186 and 189 of the Indian Penal Code was filed.
3. Learned Chief Judicial Magistrate, Solan put notice of accusation to the accused/respondent, for commission of offences under Sections 186 and 189 IPC and proceeded to record statement of witnesses on oath.
4. After conclusion of trial, learned Chief Judicial Magistrate, Solan vide judgement dated 26.05.2006 in criminal complaint No. 335/2 of 2002 convicted the accused and sentenced him to pay fine of Rs.500/- under Section 186 and Rs.500/- under Section 189 IPC and ::: Downloaded on - 28/09/2019 23:31:50 :::HCHP ...4...
in default of payment of fine amount sentenced him to undergo simple .
imprisonment for 15 days.
5. Feeling aggrieved, the convict-accused filed a criminal appeal before the Additional Sessions Judge, Solan, and vide judgement dated 1.11.2006 learned Addl. Sessions Judge, Solan, allowed the appeal and acquitted the accused of all the charged offences.
6. Now the State has filed the present appeal. A coordinate Bench of this Court granted leave to appeal under Section 378(3) of the Code of Criminal Procedure and thereafter the instant appeal registered and consequently admitted.
7. I have heard Ms. Rita Goswami, Addl. Advocate General assisted by Ms. Divya Sood, Dy. A.G. for the State and Mr. Gulzar Rathore, Advocate for the respondent and also gone through the entire record of the case. After applying my mind on facts as well as law my reasoning to arrive to the conclusion is as follows:-
8 (i) The learned Chief Judicial Magistrate failed to take notice of Section 195 Cr.P.C. wherein it is a mandatory direction that no Court shall take cognizance of any offences punishable under Sections 172 to 188 of the Indian Penal Code.
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(ii) Section 186 IPC, defines punishment for obstructing any public .
servant in discharging his public functions and Section 195 Cr.P.C. says that cognizance could have been taken only if the complaint is made in writing and that no Court shall take cognizance of an offence under Section 186 IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate
(iii) HHC Jai Kishan, who had confronted the accused appeared as PW-1 and states that the Rapat was entered by HC Rakesh Kumar, who appeared as PW-2.
(iv) Initially, it was PW-2 HC Rakesh Kumar, who had directed PW-1 Jai Kishan HHC to ask the driver to remove his bus and remove obstruction to traffic. Now, admittedly, daily diary entry was made by PW-2 Rakesh Kumar. The exception to file a complaint for violation of offence under Sections 172 to 188 IPC, is if the public servant concerned himself makes it or some other public servant to whom he is administratively subordinate.
Now, there is no evidence that PW-1 was subordinate to PW-2, who is holding an identical rank. The prosecution did not tender into any evidence to prove this aspect. Even it is not the case of ::: Downloaded on - 28/09/2019 23:31:50 :::HCHP ...6...
the prosecution that the complaint was made by PW-2 in the .
capacity of being administratively senior to PW-1. Therefore, in view of the express bar contained in Section 195 (1) (a) of the Cr.P.C the Court could not have taken cognizance under Section 186 Cr.P.C.
9. In the present case, the offences invoked were Section 186 IPC, which deals with obstructing public servant in discharging of public functions; and section 189 IPC, which deals with the situation when threat of injury in made to public servant. A bare perusal of the Daily Diary Report, Ex.PA, does not reveal that any threat was made to the police official. Thus, the police added section 189 IPC, simply with a view to take the case out of the ambit of Section 195 of the Cr.P.C.
10. In Basir-ul-Huq v. State of West Bengal, AIR 1953 Supreme Court 293, Hon'ble Supreme Court holds, "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 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 ::: Downloaded on - 28/09/2019 23:31:50 :::HCHP ...7...
which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the 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 195, Criminal Procedure Code.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."
11. In Durgacharan Naik v. State of Orissa, AIR 1966 Supreme Court 1775, the Hon'ble Supreme Court needed to deal with the question whether the prosecution of the accused therein for the offences under Sections 186 and 353, Indian Penal Code, in the absence of the complaint envisaged under Section 195(1)(a) of the Code of Criminal Procedure was valid and the Supreme Court Holds:
"5. We pass on to consider the next contention of the appellants that the conviction of the appellant under Section 353, Indian Penal Code is illegal because there is contravention of Section 195(1) of the Criminal Procedure Code.which requires a complaint in writing by the process server or the A.S.I. It was submitted that the charge under Section 353, Indian Penal Code is based upon the same facts as the charge under Section 186, Indian Penal Code and no cognizance could be taken of the offence under Section 186 Indian Penal Code unless there was a complaint in writing as required by Section 195(1) of the Criminal Procedure Code.It was argued that the conviction under Section 353, Indian Penal Code is tantamount, in the circumstances of this case, to a circumvention of the requirement of Section 195(1) of the ::: Downloaded on - 28/09/2019 23:31:50 :::HCHP ...8...
Criminal Procedure Code.and the conviction of the appellants under Section 353 Indian Penal Code by the High Court was, therefore, .
vitiated in law. We are unable to accept to this argument as correct. It is true that most of the allegations in this case upon which the charge under Section 353, Indian Penal Code is based are the same as those constituting the charge under Section 186, Indian Penal Code but it cannot be ignored that Sections 186 and 353, Indian Penal Code relate to two distinct offences 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 Section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing 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 Contempts of the lawful authority of public servants, while Section 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well established that Section 195 of the Criminal Procedure Code.does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that Section."
12. In State of H.P. v. Vidya Sagar, 1997 Cri.L.J 3893, a co-
ordinate bench of this Court holds as follows:
"13-A. Section 195(1)(a), Code of Criminal Procedure, on which reliance has been placed by the learned Magistrate, while acquitting the two accused, provides, inter alia, that no court shall take cognizance of an offence punishable under Sections 172 to 188, Indian Penal Code, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned, no ::: Downloaded on - 28/09/2019 23:31:50 :::HCHP ...9...
prosecution for the offence under Section 186, Indian Penal Code, can be taken cognizance of. It does not further provide .
that if in the course of the commission of that offence other distinct offences are committed, the Magistrate is debarred from taking cognizance in respect of those offences."
13. There is another fatal defect in the prosecution case. A bare perusal of the notice of accusation reveals the accusation of only of non-cognizable offences. Both Sections 186 and 189 IPC, are Non-Cognizable Offences, which also means, that investigation could not have been carried out by the Investigation officer, without resorting to the provisions of Section 155(2) Cr.P.C.
"Section 155 Cr.P.C. Information as to non-cognizable cases and investigation of such cases.
(1) When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) ....
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14. In the instant case, the police was legally bound to refer .
the complaint recorded in the DDR, Exhibit PA, to the concerned Judicial Magistrate under Section 155(2) CR.P.C. The investigation carried out the police without the express orders of the competent Judicial Magistrate is illegal, is without jurisdiction and non-est, having been done in total violation of Section 155(2) CR.P.C.
15. Therefore, it is established that the Investigating Officer instead of complying with the mandatory provisions of Section 155 CR.P.C., conducted investigation and opted to proceed with the matter and filed a docket, which may be read as a Police report under Section 173 (8) of CrPC or a Police Complaint under Section 190(2) CrPC. Thus the prosecution has invented a novel way to make non-cognizable offences as cognizable. This has been done to circumvent the Legislative intent to make to categories of cases, falling in separate classes, serious ones as Cognizable and Non-
serious ones as Non-Cognizable.
16. This Court would not be a mute spectator to this illegal investigation.
17. A co-ordinate bench of this Court, in Cr. Appeal No. 160/2012 titled as State of H.P. vs Sat Pal Singh @ Satta & another, ::: Downloaded on - 28/09/2019 23:31:50 :::HCHP ...11...
decided on 11.5.2009, took the similar view. The facts of that case, .
an enumerated in judgment, were that the accused therein were found transporting timber in a truck without a permit. An FIR under Section 379 IPC (cognizable) and Sections 41 & 42 of the Indian Forest Act (Non-cognizable) was registered. Later on, it was found that the offence under section 379 IPC had not been committed.
18. In RC Sharma versus CBI :2010 SCC online Del 2485, an FIR was registered for the offences punishable under Section 120-B IPC read with Sections 193/201/214 read with Section 511 IPC, under which the accused were summoned and charges framed. CBI, thereafter, moved an application to alter the charges to section 214/34 IPC (non-cognizable) which was allowed. High court of Delhi quashed the entire proceedings under section 214/34 IPC upholding the rationale that allowing the police to first register a case for a non-existent cognizable offence and then to start investigations where the allegations disclosed only non-cognizable offences would tantamount to giving it a long hand to the police which is not permitted by the code of Criminal Procedure. It would in fact upset the entire scheme laid down in the code.
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19. In view of the above discussion, I find that there is no .
merit in the appeal and hence the same is dismissed, so also pending applications, if any.
20. Bail bonds furnished by the accused are discharged.
Records of the Court below be sent back.
(Anoop Chitkara) June 17 2019(KS/tm) th Judge.
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