Delhi District Court
State vs Shri Krishna S/O Sh. Shiv Kumar on 1 June, 2013
In the Court of Sh. Manoj Kumar : Chief Metropolitan Magistrate, North
District, Rohini Courts, Delhi
Case No. 90/2/99.
Unique ID No.: 02401R0054701999
FIR No. 151/98
Police Station : Alipur
In the matter of:
State
VERSUS
1. Shri Krishna S/o Sh. Shiv Kumar,
R/o Village Mukhmel Pur,
Delhi.
2. Gyan Chand S/o Late Ratia,
Village Mukhmel Pur,
Delhi. ............ Accused
Date of Institution : 24.4.1999
Date of Arguments: 24.5.2013
Date of Judgment : 01.6.2013
JUDGMENT:
Case No. 90/2/99 Page no. 1 of 8 On 24.4.1999 a police report, from which the present proceedings emanate, was put up by the state through the officer in charge of police station Alipur, Delhi before the learned predecessor with a view to take cognizance of offences punishable under sections 186 and 353 of the Indian Penal Code (IPC) read with section 34 of IPC and to proceed against accused Shri Krishna and Gyan Chand for having committed the said offences. It was reported in the said police report that on the basis of an information (Ex. PW4/A) laid before the officer in charge on 16.5.1998 by one Sh. Bijender Singh Rana (PW4), Inspector in Municipal Corporation of Delhi (MCD) first information report (FIR) bearing no. 06/2008 (Ex. PW6/A) was registered. As per the police report Sh. Bijender Singh Rana informed the police that on 16.5.1998 he was posted as Inspector in MCD at Ward no. 104; and on that day Sh. Bane Singh (PW3), Sanitary Guide, who in connection with his duty was posted at village Mukhmel Pur, informed him by telephone that both the accused were bent upon to pick quarrel with him and were obstructing him in the performance of his duty; that he (PW4) having directed Sh. Bane Singh to make a call at no. 100 reached at the place of incident and found that both the accused had obstructed Sh. Bane Singh, Sanitary Guard, in performance of his official work and abused him. It was further reported that after investigation the accused was found involved in the commission of offences punishable under sections 186 and 353 of IPC read with section 34 of IPC. It was also stated in the police Case No. 90/2/99 Page no. 2 of 8 report that the accused be put on trial and be punished for having committed said offences.
2. On the police report my learned predecessor having taken cognizance of offences passed order under section 204 of the Code of Criminal Procedure, 1973 (Cr.P.C.) against both the accused persons, in pursuance of which they appeared and admitted to court bail.
3. On 06.5.2004 after hearing Assistant Public Prosecutor (APP) and both the accused a formal charge was framed against the accused persons whereby they were charged with the commission of offences punishable under sections 186 and 353 read with section 34 of IPC. The charge was read over and explained to each of the accused to which they did not plead guilty and claimed trial.
6. In support of its case the prosecution got examined PW1 Smt. Phoolwati, PW2 Sh. Dhare, PW3 Sh. Bane Singh, PW4 Sh. Bijender Singh Rana, PW5 Ct. Rattan Singh and PW6 ASI Mithlesh Yadav. During the examination of the prosecution witnesses documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C, Ex. PW3/D, Ex. PW4/A, and Ex. PW6/A were also tendered in evidence.
7. On 10.5.2011 the prosecution evidence was closed by the order of court and subsequently on 29.9.2011 both the accused were examined under section 313 of Cr.P.C.
8. During his examination under section 313 of Cr.P.C, accused Case No. 90/2/99 Page no. 3 of 8 Shri Krishna denied having committed any offence against PW3 Sh. Bane Singh and stated that he is innocent and has been falsely implicated in this case. The accused further stated that he did not want to lead any evidence in his defence.
9. During his examination under section 313 of Cr.P.C, accused Gyan Chand denied having committed any offence against PW3 Sh. Bane Singh and stated that he is innocent and has been falsely implicated in this case. The accused further stated that he did not want to lead any evidence in his defence.
10. Both the accused have not led any evidence in their defence.
11. I have heard Mr. Robin Singh, APP for the State and Mr. Naresh Dahiya, Advocate for both the accused.
12. Having drawn my attention on the testimonies of PW1 Smt. Phoolwati, PW2 Sh. Dhare, PW3 Sh. Bane Singh, PW4 Sh. Bijender Singh Rana, PW5 Ct. Rattan Singh and PW6 ASI Mithlesh Yadav and documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C, Ex. PW3/D, Ex. PW4/A, and Ex. PW6/A it is submitted by the learned APP that from the testimonies of the witnesses it has been proved that on 16.5.1998 both the accused persons in furtherance of their common intention committed offences punishable under sections 186 and 353 of IPC. To a query put by the court, the learned APP fairly conceded that in view of section 195 of Cr.P.C. for taking cognizance of offence punishable under section 186 of Case No. 90/2/99 Page no. 4 of 8 IPC a complaint, as defined under section 2(d) of Cr.P.C., ought to have been made.
13. Per contra, having drawn my attention on the testimonies of PW1 Smt. Phoolwati, PW2 Sh. Dhare, PW3 Sh. Bane Singh, PW4 Sh. Bijender Singh Rana, PW5 Ct. Rattan Singh and PW6 ASI Mithlesh Yadav and documents Ex. PW3/A, Ex. PW3/B, Ex. PW3/C, Ex. PW3/D, Ex. PW4/A and Ex. PW6/A it is submitted by counsel for the accused that the accused have been falsely implicated and they are entitled to be acquitted.
14. I have given my thoughtful consideration to the submissions made on behalf of the parties.
15. The charge against both the accused is that on 16.5.1998 they in furtherance of common intention, intending to deter PW3 Sh. Bane Singh, who was a public servant, from his official duty used criminal force; and thereafter obstructed him from performing his official duty. Both the accused stand charged with offences, inter alia, punishable under section 186 of IPC. In this connection section 195 of Cr.P.C. becomes relevant. The relevant portion of section 195 of Cr.P.C., which pertains to prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence, reads as follows, namely:
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to Case No. 90/2/99 Page no. 5 of 8 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
(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 subclause (i) or subclause (ii). except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
* * * *
* * * *
16. In Gurinder Singh v. State, 63 (1996) DLT 104 the Hon'ble Delhi High Court having analyzed the provisions of section 195 Cr.P.C. held as follows, namely: (5) A bare reading of Section 195, Criminal Procedure Code, would show that for a Court to take cognizance of an offence punishable under Section 186, Indian Penal Code, the precondition is a written complaint to be filed by the public servant. Admittedly, no such written complaint had been filed by Constable Hukam Singh: In the absence of such a complaint, I am in agreement with the contention of Mr.Andley, that the learned M.M. could not have taken cognizance of the offence punishable under Section 186, Indian Penal Code Statement made by Constable Hukam Singh and as recorded under Section 161, Criminal Procedure Code or for that matter under Section Case No. 90/2/99 Page no. 6 of 8 164, Criminal Procedure Code cannot and would not constitute a written complaint as required under the provisions of Section 195, Criminal Procedure Code. The contention of, Mr. Jolly that the statement of Constable Hukam Singh recorded under Section 161/164 Criminal Procedure Code. should be treated at par with a written complaint as envisaged under Section 195 Cr.P.C., is without force. Statement under Section 161 or 164 Criminal Procedure Code cannot be equated as a special complaint in writing stipulated under Section 195 Criminal Procedure Code. In paragraphs nos. 8, 9 and 10 the Hon'ble Court further observed and concluded as follows, namely: (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 or 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 bypass 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. (9) The Magistrate in this case, to my mind, was not empowered by law in this behalf to take cognizance. Hence proceedings initiated by him in the absence of special complaint as required under Section 195 Criminal Procedure Code are bad in law and without jurisdiction. When Magistrate acts in contravention of bar under Section 195 Criminal Procedure Code, such proceeding as a whole are required to be quashed. (10) In the light of the view taken above the cognizance taken by the Magistrate has to be held to be without jurisdiction and proceedings liable to Case No. 90/2/99 Page no. 7 of 8 be quashed. Those are quashed accordingly.
17. In the present case no complaint, as required by section 195 of Cr.P.C., has been made by the public servant concerned or any of his superior officer; and therefore, the ratio of Gurinder Singh's case (supra) is squarely applicable and consequently, the prosecution case is bound to fail and both the accused are entitled to be acquitted.
18. Further, neither of the prosecution witnesses, including PW3 Sh Bane Singh, against whom the offences were stated to have been committed, have given any evidence to the effect that on 16.5.1998 any of the accused assaulted him or used criminal force against him. The version of Sh. Bane Singh, as PW3, is that the accused persons abused him. Mere abusing, in the light of the evidence led before the court, cannot tantamount to assaulting or using criminal force. In these circumstances the accused cannot be held guilty of having committed the offences charged against them.
19. In view of above discussion accused Shri Krishna and Gyan Chand are found not guilty of having committed the offences charged against them and both the said accused are acquitted of offences punishable under sections 186 and 353 of IPC. File be sent to records.
Announced in the open court (Manoj Kumar)
on 1 June, 2013
st
Chief Metropolitan Magistrate
North District:Rohini:Delhi
Case No. 90/2/99 Page no. 8 of 8