Delhi District Court
Radha Rani vs Mata Bhikha on 21 January, 2023
IN THE COURT OF SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI, DELHI
Crl. Revision no. 224/2022 ( DLNT01-0101002-2022)
1. Radha Rani
W/o Late Sh. Krishan Lal Khurana
R/o A-1/5, Sector-11 Rohini
New Delhi
2. Kamal Khurana
S/o Late Sh. Krishan Lal Khurana
R/o A-1/5, Sector-11 Rohini
New Delhi
3. Dheeraj Khurana
S/o Late Sh. Krishan Lal Khurana
R/o A-1/5, Sector-11 Rohini
New Delhi ..Petitioners/Revisionists
V.
The State (Govt of NCT of Delhi)
FIR No. 417/2016
P.S Prashant Vihar
U/s186/353/34 IPC ..... Respondent.
Date of Institution : 01.11.2022
Date of Reserving the Order : Not Reserved.
Order Pronounced on : 21.01.2023
O R D E R:
1. This is the revision petition preferred by the petitioners herein (the accused persons before the Ld. Trial Court) against the impugned order dated 26.07.2022 passed by the court of Ld. Metropolitan Magistrate in FIR No.417/2016 of PS Prashant Page 1/8 Vihar titled as 'State V. Radha Rani & Ors, thereby Ld Trial Curt framed the charges qua petitioners herein under Section 353/34 IPC.
2. The facts in brief are that the case FIR No. 417/2016 was registered at PS Prashant Vihar upon the complaint of Mr. R.A Goel and Mr Sushil Rana, AE and JE of NDMC respectively alleging that the accused persons/petitioners resisted the North DMC officials/complainants using abusive language and obstructing them while they were at property no. A-1/4-5 Sector 11 Rohini for sealing the same. After the investigation, the accused persons/petitioners herein have been chargesheeted under Section 186/353/34 IPC. The Ld. MM took the cognizance of the offences vide order dated 20.11.2018 and issued summons to the accused persons/petitioners herein. After hearing the parties, the Ld. MM discharged the accused persons for offence punishable under Section 186 IPC as there was no mandatory complaint u/s 195 CrPC , while upholding the charges under Section 353/34 IPC against them.
3. The said impugned order of faming the charge has been primarily challenged on the following grounds :
a. That the Ld. MM has passed the impugned order mechanically and arbitrarily without application of judicial mind.
b. Ld. MM failed to appreciate that there is complete bar for taking cognizance of the offence as per Section 195 Cr.P.C in the absence of proper written complaint. Section 186 IPC and 353 are squarely covered under Section 195 Cr.P.C.Page 2/8
c. Ld. MM also failed to appreciate that the complaint was not filed before the Ld. MM and the offences under Section 186 and 353 IPC are stated to have arisen out of the same incident,therefore, it was necessary for the Ld. MM to consider the provisions of Section 195 (1) (a) (i) of the Code.
d. Ld. MM also erred in proceeding to frame charge under Section 353/34 IPC despite the bar under Section 195 Cr.PC. Ld. MM also erred in holding that the charges under Section 353/34 IPC are sustainable while placing reliance on judgment of Hon'ble Supreme Court in Durgacharan Naik V. State of Orissa (1966) 3 SCR 636.
e. Ld. MM also failed to appreciate that the FIR and other papers of chargesheet makes it clear that offence under Section 186 IPC is closely interconnected with other distinct offences and cannot be split up and accordingly, bar of Section 195 Cr.P.C will also apply to Section 353 IPC being distinct offences.
4. The Ld. Counsel for the petitioners, in support of the said grounds, further argued that the legal proposition laid down qua Section 186 IPC which is interlinked to the offence u/s 353 IPC on account of the bar under Section 195 Cr.PC applied in the case and hence , the impugned order suffers from legal infirmity which is liable to be set aside.
4.1 In support of his arguments, Ld. Counsel has placed reliance upon the following judgments:
(I) State of U.P V. Mata Bhikha & Ors Crl. Appeal No. 202 of Page 3/8 1981 dated 09.03.1994 of Hon'ble Supreme Court. (II) Gurinder Singh V. State Crl Revision Appeal No. 133/1996 dated 2305.1996 of Hon'ble High Court of Delhi. (III) Sushil Sharma & Anr. V. State & Anr. Crl. Revision No. 418/2008 of Hon'ble High Court of Delhi.
5. Per contra, Ld. Addl. P.P for the State/Respondent has argued that there is no legal infirmity in the impugned order and the same has been passed after appreciating all the facts as well as legal proposition of law. He also placed reliance upon the judgment of hon'ble SC in Durgacharan Naik ( Supra) .
6. Heard the Ld. Counsel for the petitioners herein as well as Ld. Addl.P.P for the State and also considered the material on record.
7. The only limited legal issue raised herein is that in absence of complaint under Section 195 Cr.P.C, the other offences which are similar in nature i.e 353 IPC also cannot be proceeded with and the impugned order of the Ld. MM framing the charge in this regard is bad in law. In this regard, reliance has been placed by the petitioners in the above-stated judgments.
8. Before proceeding for discussion qua the said legal proposition as has been raised in the present matter, the undisputed facts needs to be considered. It is not in dispute that petitioner herein alongwith other co-accused person have been charge-sheeted for the offence under Section 186/353/34 IPC with respect to the Page 4/8 incident of hindrance caused to the public servants of North DMC as well as use of criminal assault while they had gone to seal the property in question . Admittedly, the charge-sheet is not accompanied with the valid complaint as envisaged under Section 195 Cr.P.C and one letter dated 02.4.2018 addressed by Executive Engineer North DMC to SHO on the said incident has been discarded by the Ld. MM and rightly so by discharging the petitioners under Section 186 IPC.
9. But, Ld. MM vide impugned order while proceeding to frame the charge u/s 353 IPC has placed reliance upon the judgment of Hon'ble Supreme Court in Durgacharan Naik (supra) case wherein it has been categorically held the offence under Section 186 IPC and Section 353 IPC are two distinct offences as their ingredients too are quite distinct. The mere absence of complaint under Section 195 Cr.P.C does not bar the trial of offenders for distinct offence under Section 353 IPC. But the Ld. Counsel for the petitioners in this regard has argued that the said judgment is no longer applicable and reliance in this regard has been placed upon the judgment of Hon'ble Delhi High Court in Gurinder Singh (supra) case and Sushil Sharma (supra) case and of Hon'ble Supreme Court in State of U.P vs Mata Bhikha (supra) case.
10. As far as the judgment in State of UP vs Mata Bhikha(supra) case is concerned, the said issue was not at all under consideration before the Hon'ble Supreme Court .It is only concerning the locus standi of public servant who can file the Page 5/8 complaint u/s 195 CrPC . As far as the judgment of Hon'ble Delhi High Court in Sushil Sharma (supra) case is concerned, it deals with the very same issue, but it is apparent from the Para-15, the matter was only remanded back with directions to proceed in accordance with law and accused were not discharged . The judgment in Gurinder Singh (supra) case too does not help the case of the petitioners herein in view of the findings given in Para-8 which is reproduced hereunder:
(8) I think these observations and caution note spell out by the Supreme Court squarely apply to the facts of this case. Can the facts of this case it would hardly be possible to separate the element of insult om 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 Criminal Procedure Code 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 necessary under the provision of Section 195, Criminal Procedure Code . 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, Criminal Procedure Code and it was not open to by-pass its provisions even by choosing to prosecute under Section 353/506 Indian Penal Code Mr.R.D.Jolly as pointed above had conceded that charge on the facts of this case under Section 353 Indian Penal Code is not made out because the public servant was not prevented or deterred in the discharge of his official duties.
11. But in the present case in hand there is no dispute raised by the parties qua the absence of ingredients of section 353IPC in view of statements given by the public servants concerned .So, in the said Page 6/8 backdrop, the proposition of law as has been laid down in Durgacharan Naik (supra) case which has been relied upon by the Ld. Trial Court still holds the field wherein it has been categorically held that the offences under Section 186 IPC and 353 IPC are quite distinct and even their ingredients are distinct. The very said issue has been dealt with by Hon'ble Delhi High Court in judgments viz; Hitender Singh V. NCT of Delhi 2016 SCC OnLine Delhi 2671 case and Gurcharan Singh Arora & Another V. State 2002 (62) DRJ 249
12. The relevant para of Hitender Singh (supra) case whereby the framing of charge qua offence under Section 353 was upheld is reproduced hereunder :
10. The petitioner has been charged for committing the offence punishable under Section 353/186/34 IPC. The offence of obstructing public servant is punishable under Section 186 IPC and is non-
cognizable. The other offence for which the petitioner andhis co-accused persons have been charged are cognizable offences. Thus, when two or more offences are made out and one of them is non- cognizable and other are cognizable, the complaint case need not be filed as police file the chargesheet. Section 155(4) of Code of Criminal Procedure provides that where the cases relate to two or more offences of which at least one is cognizable, the case shall be deemed to be cognizable case notwithstanding other offences are non-cognizable.
11. So far as offence punishable under Section 353 IPC is concerned, it being a distinct offence, even if there was no complaint under Section 195 CrPC, he cannot be discharged."
13. Therefore, the legal issue raised on behalf of the petitioner is without any force. There is no infirmity or irregularity in the impugned order passed by the Ld. Trial Court in proceeding with Page 7/8 framing of charge under Section 353 IPC against the accused persons/petitioners herein.
14. In view of the above-discussed reasons and observations, I am of the considered opinion that there is no legal infirmity in the impugned order which calls for any interference and hence, the same is upheld. The Revision Petition is accordingly dismissed. There is no order as to cost.
TCR be sent back with a copy of this order.
Revision file be consigned to Record Room Announced in the Open Court (GAGANDEEP SINGH) on 21.01.2023. Addl. Sessions Judge/ Spl. Judge (NDPS), North District, Rohini Courts, Delhi.
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