Delhi District Court
Subhash Arya S/O Sh. Achari Lal vs State on 1 November, 2022
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : NEW DELHI
PATIALA HOUSE COURTS : NEW DELHI
Criminal Revision145/2022
CNR No. DLND10035032022
In re:
1. Subhash Arya S/o Sh. Achari Lal
R/o H.No. J53A, Rajouri Garden,
New Delhi110027
2. Shyam Sharma S/o Sh. Ratan Chand Sharma
R/o HL7, Pama Market, Jail Road,
New Delhi.
3. Ramesh Khanna S/o Sh. K.L. Khanna
R/o W12, Rajouri Garden
New Delhi110027
4. Praveen Khandelwal S/o Sh. Vijay Khandelwal
R/o896/2, Kucha Pati Ram
Sita Ram Bazar, Delhi.
5. Vijay Pal Singh S/o Sh. Rajender Singh
R/o 329, Mangal Pur Khurd
Rohini, Sector, New Delhi
6. Ramesh Ahuja S/o Sh. A.C. Ahuja
R/o H.No. 16/102, Tank Road,
Gali No.2, Karol Bagh,
New Delhi .......... Petitioners/ Revisionists
Versus
State
Through SHO
PS Parliament Street .......Respondent
Date of Institution : 22.04.2022
Date of hearing arguments : 19.10.2022
Date of Order : 01.11.2022
Criminal Revision145/22 Subhash Arya & Ors. v. State Page 1 of 13
Appearances:
Sh. Neeraj, Amit Tiwari, Chiranjiv Kumar, Dharam Deshna, Deepanshu
Badiwal, Rudra Paliwal, Advocates for the petitionersrevisionists.
Sh. Ravinder Khandelwal, Addl. PP for the State.
ORDER:
1. This order shall decide a criminal revision petition filed under Section 397 read with Section 399 Cr.P.C moved by the revisionists/accused persons assailing the impugned order dated 05.03.2022 passed by the court of Ms. Amardeep Kaur, the Ld. MM-06 in case FIR No. 52/2006 titled State v. Mayank Gupta & Ors. BRIEF FACTS:
2. Briefly stated the revisionists are the co-accused persons in the aforesaid FIR, which was lodged on a complaint by SI Pratap Singh alleging that on 06.03.2006, the Confederation of All India Traders Association under the leadership of their leaders viz. revisionists herein along with the crowd of 4000-5000 demonstrators marched towards Parliament having sticks, stones and flags in their hands; and allegedly provocative speeches were made by the revisionists, resulting in demonstrators running towards the barricade and tried to forcibly remove the same; and in the process, the demonstrators voluntarily obstructed the public servants in discharge of their duties and disobeyed the orders of the public servants. It was alleged that some of the police officials were hurt so much so that the windows of some DTC buses were also smashed. On completion of investigation after recording the statement of the affected police personnel, the charge-sheet was filed, upon which cognizance was taken by the Ld. MM on 20.10.2007 under Section 147 / Criminal Revision145/22 Subhash Arya & Ors. v. State Page 2 of 13 148/149/186/188/332/353/426/427/440 IPC besides Section 3(1) of the Prevention of Damage to Public Properties Act, 1978 (in short PDPP Act").
IMPUGNED ORDER:
3. Suffice to state that the revisionists preferred an application for discharge and the main plank of their arguments was that there was no compliance to Section 195 Cr.PC. The Ld. Trial Court vide the impugned order observed that the legal issue raised by the Ld. Counsel for the accused persons/revisionists had already been decided by the predecessor of her court vide order dated 05.11.2014, wherein it was specifically observed that the then Commissioner of Police had accorded sanction on 21.06.2007, which was filed along with the charge-sheet on 20.10.2007. Further, other grounds for challenging the prosecution case preferred by the Ld. Counsel for the accused persons/revisionists that the gathering was an informed protest and that there was no voluntary obstruction of public servants in discharge of their duties or any disobedience, or for that matter, the statements of the police witnesses were vague and inconsistent, were held to be not made out at the stage of consideration of Charge and held to be a matter of trial. Accordingly, the Ld. MM directed for framing of charges against the accused persons under the aforesaid provisions of law.
GROUNDS OF REVISION:
4. The impugned order dated 05.03.2022 is assailed inter alia on the grounds that Ld. MM failed to appreciate that revisionists have been implicated on political consideration and also overlooking the fact Criminal Revision145/22 Subhash Arya & Ors. v. State Page 3 of 13 that prior intimation for holding demonstration had been given to the concerned authorities; and thus, there was no applicability of provisions of Section 146, 147, 148 & 149 IPC since the protest was an informed protest and the authorities had been intimated in advance that there would be around 1500-2000 activities of the Confederation of All India Traders Association who would be holding demonstrations at Jantar Mantar on 06.03.2006 at 10:00 hours for calling attention of the then Union Government towards the worst condition that had arisen in Delhi in the context of sealing of their shops; and it was also informed that about 50 activists of Military Service Pensionless Association would be on indefinite hunger strike before the Parliament House w.e.f. 06.03.2006 till the end of Budget Session. The impugned order is also assailed on the ground that the Ld. MM failed to appreciate that that as per the prosecution story, there were more than 4,000-5,000 people who were running towards the barricade with culpable intention but the prosecution in a high handed manner have only chosen 52 of the demonstrators without there being any substance against them based on the version of interested witnesses whose statements were recorded after apprehending the accused persons including the present revisionists and that there was no CCTV Footage or Video-recording of the entire incident; and that allegations leveled in the charge-sheet are sketchy and/or dismissive in nature; and the Ld. MM failed to appreciate that in the FIR, it was mentioned that the occurrence occurred from 11:20am to 02:00pm, whereas, as per DD No. 33-B dated 06.03.2006, the time of vandalizing is indicated as 02:25pm; and that the Ld. Trial Court took cognizance of Criminal Revision145/22 Subhash Arya & Ors. v. State Page 4 of 13 the charge-sheet filed by the police and no cognizance of complaint under Section 195 Cr.PC was taken on 20.10.2007.
5. Notice of the present revision petition was issued to the State and the Ld. Addl. PP for the State has opposed the revision petition.
DECISION:
6. I have given my thoughtful consideration to the submissions made by the Ld. Counsel for the revisionists/accused persons and Ld. Addl. PP for the State. I have gone through the Trial Court Record as also the case law cited at the Bar viz. Court On Its Own Motion v.
State Crl. MC No. 2774/2011 decided by the Hon'ble High Court of Delhi on 09.05.2012; Anita Thakur & ors. v. Government of Jammu and Kashmir (2016) 15 SCC 525; Gurinder Singh v. State 1996 (37) DRJ; and Durgacharan Naik and Others v. State of Orissa (1196) 3 SCR 636.
7. It is a matter of record that the alleged incident took place on 06.03.2006 and the incident was reported by the complainant SI Pratap Singh on 06.03.2006 at 03:15pm and the complaint was received vide DD-14A and the present FIR was registered at 03:20 hours on the same day. It is also a matter of record that the charge-sheet in the present case was prepared on 20.05.2006. However, the charge-sheet was filed on 20.10.2007 upon which the Ld. MM passed the following order :
"20.10.2007 Present : APP for the State.
IO/SI Ram Babhu is present today and filed the charge sheet. It be checked and regd as per rules.Criminal Revision145/22 Subhash Arya & Ors. v. State Page 5 of 13
All the accused persons are reported to be on court bail, but not present today.
Cognizance of offence is taken.
Let all the accused persons be summoned with notice to their sureties for 17/05/2008 through the IO of the case.
- sd -
ACMM/N.Delhi"
8. Now, in order to decide the present revision petition, it would be expedient to refer to the provisions of Section 195, which provides as under :
"(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;"
{Rest of the legislative provision omitted as not relevant.}
9. A careful perusal of the aforesaid provisions would show that the cognizance of the offence u/s 186 and 188 IPC can only be taken on a complaint made by a public servant or some other subordinate public servant. In the case of Gurinder Singh Vs. State, MANU/DE/0635/1996 / 1996 IIIAD (Delhi) 96, the Hon'ble High Court of Delhi was seized of of a matter where the accused assaulted a traffic constable, on the basis of which, FIR was lodged and charge-sheet was filed. On the Ld. Metropolitan Magistrate taking cognizance of the offences, the revision petition was filed before the Hon'ble High Court Criminal Revision145/22 Subhash Arya & Ors. v. State Page 6 of 13 challenging the taking of cognizance in contravention of Section 195 Cr.P.C of the offences punishable u/s 186 IPC, inter alia on the ground that no written complaint had been filed by the affected constable. On a plain reading of Section 195 Cr.PC, it was held that "as regards a written complaint, it is a pre-condition for registering a case under Section 186 Indian Penal Code and it is so envisaged under Section 195 Criminal Procedure Code". It was further held that:
"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 pre-condition 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 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."
10. It is further pertinent to mention herein that in the cited case of Gurinder Singh (Supra), the plea of the petitioner that since the Ld. Trial Court could not have taken cognizance u/s 186 IPC in the absence of a written complaint, the case must go as a whole was also accepted. It Criminal Revision145/22 Subhash Arya & Ors. v. State Page 7 of 13 was held as under:
"6. Now reverting to the second limb of Mr. Andley's argument that since learned Trial court could not have taken cognizance under Section 186 Indian Penal Code in the absence of a written complaint, hence the case as a whole must go. I find force in this submission of Mr.Andley. In similar circumstances the Madras High Court in the case of P- Btiraj Vs. K-Muniyandi 1995 Criminal Rullings 219 held that if complainant ignored the provisions of Section 195 Criminal Procedure Code then the entire complaint must go and Court cannot take cognizance. In that eventuality the proceedings as a whole has to be quashed. In P-Btiraj's case complaint was filed consisting of two offences under Section 166 & 186, IPC. In the absence of a written complaint the Court opined that proceedings as a whole are liable to be quashed. Reference can also be made to the decision of Punjab & Haryana High Court in the case of Bhagat Ram V. Sum of Punjab 1991 (1) Crl.LJ. 246, where it has been observed that jurisdiction of the Court to take cognizance of an offence under Section 186, Indian Penal Code, is barred except on a complaint in writing of the public officer concerned. Simple lodging of FIR at the Police Station which resulted in the prosecution of petitioner ultimately and framing of charge for the offences would not amount to filing of complaint in writing by public servant as stipulated under Section 195 Criminal Procedure Code are liable to be quashed. To the same extent are the observations of Madhya Pradesh High Court in the case of Ashok And Anr. V. The State 1987 Crl. L.J. 1750 where the Court after analysing various provisions of the Code and in particular Section 195 and 461(k) held that the trial for the offences under Sections 186/353, Indian Penal Code, without a special complaint as required under Section 195(l)(a)(i) of Cr.P.C. is illegal. When Magistrate acts in contravention of bar under Section 195 Cr.P.C. the proceedings deserve to be quashed. Relying on these judgments Mr.Andley contended and to my mind, rightly so that since the precondition and mandatory requirement of a written complaint is missing in this case, therefore, the trial court could not have taken cognizance of the offences punishable under Section 186 & 353, Indian Penal Code. Such cognizance under Section 186 could not have been taken then the FIR as a whole must be quashed."Criminal Revision145/22 Subhash Arya & Ors. v. State Page 8 of 13
11. Interestingly, the Hon'ble Judges of the High Court also took note of the rival contentions and reliance was placed on Durgacharan Naik & Ors. V. State of Orissa, 1966 CriLJ 1491, wherein the appellant had been convicted under Section 353 IPC and an objection was taken about the contravention of Section 195(1) Cr.P.C and in the said scenario, it was held as under :
"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 pre-condition 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 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."
12. Thus, it was held that adopting and resorting to the device of invoking Section 353 along with Section 186 IPC would be a camouflage and the prosecution can not evade the provisions of Section 195 Cr.P.C since the facts have to be considered as a whole and cannot be split up. Reverting to the instant case, although it appears that complaint u/s 195 Criminal Revision145/22 Subhash Arya & Ors. v. State Page 9 of 13 Cr.P.C was made by the then Commissioner of Police on 21.06.2007, the cognizance of offence was taken by the Ld. MM on 20.10.2007 based on the charge-sheet and not on the complaint. I am afraid in a situation like this, the embargo placed under Section 195 Cr.P.C comes into play. Reference can also be invited to another decision by our own High Court titled as Courts On Its Own Motion vs State (Supra), wherein it was held that where the cognizance is taken on the charge-sheet and not on the basis of a complaint under Section 195 Cr.P.C, it would be a situation where there is no complaint at all.
13. Before parting with this case, it is needless to point out that the prosecution is duty bound to come clean on the record that the assembly, if any, was unlawful and the protest became unlawful as well. In view of the fact that permission had already been applied by the Confederation of All India Traders Association and no decision was taken thereupon, there was per se violation of fundamental freedom guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution of India. Reference in this regard can be had to a decision in Anita Thakur & Ors. Vs. Govt. of J&K & Ors., WP (Crl.) No. 118/2007, by Hon'ble Judges of the Supreme Court, DOD 12.08.2016, it was inter alia held as under:
"8. We can appreciate that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article Criminal Revision145/22 Subhash Arya & Ors. v. State Page 10 of 13 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)
(d), again, ensures that the petitioners could take out peaceful march. The 'right to assemble' is beautifully captured in an eloquent statement that "an unarmed, peaceful protest procession in the land of 'salt satyagraha', fast-unto-death and 'do or die' is no jural anathema". It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest.
Organised, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution.
9. Notwithstanding above, it is also to be borne in mind that the aforesaid rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order. It is for this reason, the State authorities many a times designate particular areas and routes, dedicating them for the purpose of holding public meetings.
10. On the other hand, there is always a possibility that a public rally may become unruly, which can mean damage to life and property. This is when a public assembly becomes 'unlawful', which is defined in Section 141 of the Indian Penal Code (IPC). Under these circumstances, the district administration and the police are permitted to disperse the crowd to prevent injuries or damage. This may entail the use of force in a controlled and specified manner. We also have Section 268 of the IPC which defines 'public nuisance' as any act 'which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right'. Further, Section 143 of the Cr.P.C. empowers an Executive Magistrate to prohibit the repetition or continuation of public nuisances and Section 144 Cr.P.C. permits the issuance of directions to members of the public to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, Criminal Revision145/22 Subhash Arya & Ors. v. State Page 11 of 13 health or safety, or a disturbance of the public tranquility, or a riot, or an affray. These legal provisions provided a wide array of powers to the police, including the right to use reasonable force to disperse any unlawful assembly and maintain public order.
11. Thus, while on the one hand, citizens are guaranteed fundamental right of speech, right to assemble for the purpose of carrying peaceful protest processions and right of free movement, on the other hand, reasonable restrictions on such right can be put by law. Provisions of IPC and Cr.PC, discussed above, are in the form of statutory provisions giving powers to the State to ensure that such public assemblies, protests, dharnas or marches are peaceful and they do not become 'unlawful'. At the same time, while exercising such powers, the authorities are supposed to act within the limits of law and cannot indulge into excesses. How legal powers should be used to disperse an unruly crowd has been succinctly put by the Punjab and Haryana High Court in Karam Singh v. Hardayal Singh, 1979 Crl.L.J. 1211, wherein the High Court held that three prerequisites must be satisfied before a Magistrate can order use of force to disperse a crowd:
First, there should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of the public peace. Second, an Executive Magistrate should order the assembly to disperse.
Third, in spite of such orders, the people do not move away."
14. Lastly, the case of the prosecution against the revisionists is based on a mere suspicion that revisionists were part of the group and it is assumed that they indulged in the commission of certain offences but then there is no video coverage or CCTV footage so as to establish the identity of the revisionists/accused persons. It appears that each of the revisionists/accused persons were apprehended one by one and their personal details were noted down and the whole tone and tenor of the statements of the police witnesses go to suggest that the same are Criminal Revision145/22 Subhash Arya & Ors. v. State Page 12 of 13 absolutely identically written in a mechanical and pre-determined manner so as to establish their identity and thereby make them complicit in the matter.
15. In view of the foregoing discussions, I find that the impugned order dated 05.03.2022 cannot be sustained in law as it suffers from the vice of not only patent illegality but also incorrect approach in law. Hence, the impugned order is set aside and the revision petition is allowed. The revisionists/accused persons are discharge of the offences for which they have been arraigned.
16. Trial Court record along-with copy of this order be sent back forthwith.
17. File of Criminal Revision be consigned to the Record Room.Digitally signed by DHARMESH
DHARMESH SHARMA
SHARMA Date: 2022.11.01
17:56:14 +0530
Announced in the open Court (DHARMESH SHARMA)
st
on 1 November, 2022 Principal District & Sessions Judge (NDD)
Patiala House Courts, New Delhi
Criminal Revision145/22 Subhash Arya & Ors. v. State Page 13 of 13