Delhi District Court
State vs . : Om Prakash on 19 September, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM
ROHINI:COURTS: DELHI.
State Vs. : Om Prakash
FIR NO : 565/97
U/s : 186/353 IPC
PS : Adarsh Nagar
JUDGMENT.
1. Sl. No. of the case 32/98
2. Offence complained of
or proved U/s 186/353 IPC
3. Date of Offence 21.10.97
4. Name of the complainant Om Prakash
5. Name of the accused Om Prakash
S/o : Dal Chand
R/o : Gali No. 6, Burari, Delhi
6. Plea of the accused Pleaded not guilty.
7. Final order Convicted
8. Date of Order 12.08.08
Brief reasons for decision:
1. The story of the prosecution in brief is as under: that on 21.10.97 at about 5.20 p.m. at GTK Road, Azad Pur bus stand complainant Om Prakash who was working as ATI in Delhi Transport Corporation was on his regular visit at the above stated 2 spot for checking the bus and when he reached at about 5.20 p.m. in the evening at Tikona Park, Azad Pur Mudrika bus stand they saw one bus bearing no. DL-1P-0081 was parked at bus stand and no passenger was in that bus. The conductor Om Prakash of that bus was found in the bus. Upon checking, the Wavel Form was demanded from him. It was found that he had not found mentioning of ticket of Rs. 4 in the Wavel Form . Thus he was asked to go to ATS Rati Ram and he was told about his mistake. In the mean time accused Om Praksh was asked to sit in the jeep and suddenly he slapped the complainant and a quarrel had been taken place and Wavel Form was torn by him. Thus FIR No. 565/97 u/sec. 186/353 IPC was registered against him.
2. IO conducted detailed investigation and filed his final report under section 173 Cr.P.C against the accused . After conducting the initial proceedings, documents were supplied to the accused . Thereafter, arguments on charge was heard. It was found that prima facie material was available against the accused for offence u/s 186/353 IPC. Hence, charge under section 186/353 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
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3. It is important to mention here that prosecution has examined 4 witnesses in support of its case and there is no evidence from the side of the accused persons in his defence.
4. PW 1 HC Azad Singh is the duty officer who received one rukka and registered FIR Ex. PW 1/A.
5. PW 2 Om Prakash who was posted as ATI and who was on duty at Delhi Gate and was on super checking duty, he alongwith other staff members namely Rati Ram ATS, Sohan Dev and driver Rajpal was on duty on Govt. vehicle no. DDV 8058 and they reached at Azad Pur Mudrika bus stand. PW Om Prakash alongwith Sohan Dev stayed there and reached at Tikona Park , Azad Pur. All these persons found one Mudrika bus bearing no. DL-1PA-8003 parked near the bus stand, there was no passenger in the said bus. PW 2 found accused/conductor in the bus and demanded Wavel Form from him which contained the entry of tickets and on checking, it was found that the Wavel Form does not having the entry of Rs. 4 tickets in it. Thereafter accused was taken to ATS Rati Ram who gave instructions to the accused to sit inside 4 the jeep but accused started assaulting them and gave a slap to PW 2. Wavel Form was snatched by the accused and it is torn by him and thrown in the air. Thus, accused was taken in a jeep in PS Adarsh Nagar and matter was reported to the police alongwith the torn Wavel Form which was seized by the police. During cross- examination PW 2 has corroborated with his statement what he has stated in examination in chief and nothing contrary has emerged from his statement.
6. PW 3 Rati Ram , Deputy Manager, Traffic Legal Section Delhi Transport Corporation has stated that on 21.10.97 he was posted as ATS and was on checking duty in North Division. He was Incharge of the Traffic jeep No. DDV 8058 at that time and was accompanied by Om Prakash ATI , Sohan Dev and one driver of the jeep Rajpal .They were checking the buses at Azad Pur Mudrika bus stand at about 5.20 p.m. One bus bearing no. DL-1P- 8003 was found parking at the bus stop . PW 3 asked to find out as to why the bus was parked at the stop who was found that accused Om Prakash was therein .The Wavel Form was demanding from him which was not closed with the entries pertaining to ticket of Rs. 4/-. The way bill was torned by the 5 accused and accused obstructed ATI Om Prakash in performance of his duty as public servant by snatching and torn the way bill . Om Prakash ATI told this fact to ATS Rati Ram and PW 3 asked the entire staff to come in the jeep and they said that challan shall be prepared against the accused. Upon hearing this accused slapped him. The accused was taken to the police station. Nothing contrary has emerged from the cross examination of this witness and he has duly corroborated what he has stated in his examination in chief.
7. PW 4 SI Giri Raj Sharma has stated to the effect that on 21.10.97 he was posted as ASI at P.S. Adarsh Nagar . On that day one call was received regarding quarrel at Azad Pur and he alongwith HC Manoj Kumar went there and met with complainant Om Prakash. Rati Ram ATS , Sohan Dev ATI, Rajpal driver of the jeep bearing no. DDB 8098 and accused Om Prakash . Statement of complainant was recorded. Complainant gave him one Wavel receipt which was taken into possession vide memo Ex. PW 2/B. Asal tehrir Ex. PW 4/A was prepared and same was handed over for registration of FIR. Site plan was prepared at the instance of complainant. FIR was registered and original tehrir and 6 copy of FIR was handed over to PW 4. Accused was arrested. His personal search was conducted. Sanction u/sec. 195 Cr.P.C. was also taken and filed alongwith the charge sheet. During cross- examination PW 4 nothing contrary has emerged from the cross examination of this witness and he has duly corroborated what he has stated in his examination in chief.
8. After all the prosecution witnesses examined, PE was closed and one opportunity was given to the accused persons u/s 313 Cr.P.C wherein all the incriminating evidence was explained to him . Accused stated that he was falsely implicated in the present case . However, accused has stated that he wants to lead evidence in his defence but no witness was produced by the accused in his defence . Thus there is no evidence from the side of accused , hence DE is closed.
9 I have heard the final arguments so advanced by the counsel for accused and Ld APP for the state. I have perused the material placed before me along with the testimonies of Prosecution Witnesses.
710 From the material placed on record, arguments heard at length and the testimonies of Prosecution Witnesses I am of the considered opinion that the prosecution witnesses have supported the story of the prosecution. There is nothing from the side of the accused in his defence. It is further important to mention here that accused has not brought on record anything contrary to the testimonies of the prosecution witnesses.
11. The offence under which the accused is charged with is u/sec. 186/353 IPC.
Section 186 IPC reads as under. :-
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees or with both
11. It is important to mention here that essential requirements to proceed u/sec. 186 IPC is Section 195 Cr.P.C. 8 which lays down the procedure and as per law, it is stated that any such provision which is contained under chapter X of Indian Penal Code, regarding contempt of lawful authority of which Section 186 IPC is relevant Section. The requirement of Section 195 Cr.P.C is to be taken care before proceeding any further. Perusal of the record reveals that one complaint in the form of Section 195 Cr.P.C is filed by the IO alongwith the charge sheet. It is a complaint u/sec. 195 Cr.P.C. which is filed by the Manager R.K.Jain , Delhi Transport Corporation . It is containing the list of witnesses. Under this complaint which is filed by the authority higher about the complainant is contained a prayer that action be taken against the accused as he had obstructed the complainant and other public servant in discharge of their duties. In the charge sheet so filed by the accused it is further stated during alleged incidence while obstructing the public servant in discharging of his duties , accused also assaulted the complainant and Govt. Public Servant . Thus, Section 353 IPC was also attracted against the accused. Section 353 IPC further reads as under :-
Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with 9 intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant , shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both.
12. The essential ingredients of Section 353 IPC are as under :-
1. That the accused assaulted or used criminal force to a public servant
2. That the public servant at the time of offence was acting in the discharge of a duty imposed on him by law as such public servant.
13. It is important to mention here that to bring home the offence u/sec. 353 IPC the prosecution is to prove the requirement of Section 352 IPC . Thus, another requirement to prove the prosecution that the factum of assault was a public 10 servant in the meaning of Section 21 IPC and such assault was made with an intention to prevent or deter the public servant concerned from discharging of his duty qua public servant.
14. Section 186 IPC is more or less on the same footing, as stated above, the essential ingredient of Section 186 IPC are more or less the same that
1. There was obstruction
2. Obstruction must be by the accused
3. Obstruction must be voluntarily
4. The obstruction must be by a public servant
5. The obstruction must be in discharge of his i.e. Public servant's public functions.
15. However there is one difference between these two Sections that Section 186 IPC is recorded under Chapter X of the Indian Penal Code containing the Provisions of committing the Contempt of Lawful Authority or Public Servant where Section 353 IPC is covered under chapter XVI which is containing the offence affecting the human body. Section 186 IPC is non cognizable and requirement of Section 185 IPC is mandatory in taking cognizance 11 for the alleged offence under this Section however, Section 353 IPC is cognizable and no such pre-requisite requirement is u/sec. 195 Cr.P.C. is required for taking cognizance under this Section.
16. Another difference between these two sections is that Section 186 IPC contains the punishment for the contempt of the lawful authority and the maximum punishment is imprisonment or fine of Rs. 500/- whereas Section 353 IPC attracts the punishment up to two years or with fine or with both.
17. In 1988 Cr.L.J. 807( Karnataka High Court) and 1997 Cr.L.J. 3893 (Himachal Pradesh High Court) it has been observed while this Court of Section 186 IPC and 353 IPC as well as Section 332 IPC that both these offences are distinct in nature.
Section 186 provides for the punishment for the contempt of the lawful authority of the public servant and Section 353 IPC as well as Section 332 IPC contained the punishment for the assault committed by public servant who is discharging in his public duties. It has been observed in these cases as well as by Hon'ble Suprme Court of India "AIR 1953 Supreme Court 293 "that it is the duty of the Court to construe the section according to the 12 language used. It is not for the court to speculate as to what the legislature should or might have said. Regard could only be had to what the legislature has said. The legislature intended a particular form of complaint or previous sanction for the prosecution of those of the certain specified offences only. There is nothing in the section to suggest that the prosecution in respect of other offences based on the same facts could not be instituted except by observing the provisions of S. 195. it has also to be borne in mind that the provisions of that section cannot be evaded by restoring to devices or camouflages. The test whether there is a 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 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 13 Code, through in truth and substance the offence falls in the category of sections mentioned in S. 195 Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. 18 Thus it is clear from the above cited authorities for reference as well as from the heading of these two Sections u/sec. 186 IPC as well as u/sec. 353 IPC that both these offences are cognizable u/sec. 353 IPC & non-cognizable under Section 186 IPC in which requisite requirement u/sec. 195 Cr.P.c. Will be pre- requisite for Section 186 IPC and if it is not initiated upon the complaint of a public servant in the form of Section 195 Cr.P.C. no proceedings can be initiated for Section 186 IPC. However if all these requirements are not taken care of regarding Section 186 IPC, it does not put any bar for proceeding under other Sections of similar in nature like u/sec. 353 Cr.P.c. as it attracted here in this case where there are specific everments to that effect and the first element is also existing . In the present case however the IO had taken care of the requirement of Section 195 Cr.P.c. . It is however 14 important to mention here and it is also fundamental rule of law that the technicalities of law will not come in the way of imparting justice pith and the substance of the facts should be considered accordingly. . The nature of the circumstances should be seen rather than construing any of the flaw technically. Thus, so far as Section 186 IPC is concerned , the IO has filed one complaint duly given by the public servant , alongwith the final report u/sec. 173 Cr.P.C. , therefore, the technical requirement u/sec. 195 Cr.P.C. For taking cognizance u/sec. 186 IPC is taken care of. 19 PW 2 Complainant Om Parkash and PW 3 Rati Ram ATS has stated in clear words that they were employed by DTC and are public servant as defined u/sec. 21 IPC. This fact is not disputed that an employee of DTC is the covered within the definition of public servant as defined u/sec,. 21 IPC. It is further stated by PW 2 and PW 3 that on that particular day i.e. On 21.10.97 they alongwith other public officials were on their regular duty for checking and during their duty hours they reached near Azad Pur Mudrika bus stand . Thus, both these Pws have shown that during that particular time and place they both were discharging their public duties , they saw one bus was stationed 15 near the bus stand and no passenger was found therein and it is conductor Om Prakash who was present in the bus and when Wavel Form was demanded from him and it was checked , it was further found that no entry of ticket of Rs. 4 was found therein . It is further stated by PW 2 and PW 3 in clear words that upon raising suspicion regarding the conduct of the accused of not putting any entry in the wavel form regarding ticket of Rs. 4/- he was enquired and was asked to sit in the jeep. It was standing nearby, the accused suddenly retaliated and started arguments with the complainant and other public officials. He also torn the Wavel Form which was in the possession of PW 2. Accused also slapped the complainant Om Prakash. The torn Wavel Form is also placed on record in the judicial file which is Ex P 1 and the seizure memo of Wavel Form is Ex. PW 2/B. 20 In these circumstances the prosecution while examining this witness have shown that :
1. Complainant and other persons are the public servant as defined u/sec. 21 Cr.P.C.
2. They were discharging their public duties on that day.
3. While discharging their public duties they enquired the 16 accused Om Prakash to submit the Wavel Form and come to the jeep wherein the further enquiry was conducted against him.
4. The said accused Om Parkash obstructed these public servants from discharging their duties.
5. Accused Om Parkash torn the wavel form and slapped one of the public officials.
6. There is no evidence from the side of the accused showing to the contrary to the evidence so led by the prosecution witnesses.
7. All the relevant documents including the seizure memo are placed on record with the record showing prima faciely that Wavel Form was torn.
21 In the light of these facts and circumstances and as per the observation I am of the considered opinion that :
1. Complainant is the public servant as defined u/sec. 21 IPC.
2. Accused obstructed these public servants in discharging of their public duties.
3. In the said act committed by the accused he also torn the wavel form and slapped the complainant.
22 It is further important to mention here that Section 186 IPC 17 requirement of requisite sanction of 195 IPC which had been taken care of by the Manager R.K.Jain DTC filed alongwith the charge sheet as well as specific everments pertaining to Section 353 IPC and essential requirement is also established by the prosecution against the accused. In the light of these facts and circumstances and the reasons so given, I am of the considered opinion that prosecution has been able to establish the liability of the accused beyond reasonable doubt and nothing to the contrary has been shown by the accused persons on record that prosecution witnesses have supported the story of the prosecution. Therefore, I am of the considered opinion that accused has committed the offence u/sec. 186 IPC as well as 353 IPC i.e, committing contempt of lawful authority and assaulting and detering public servant from discharging his duties . . Thus accused Om Parkash S/o Dal Chand is convicted u/sec. 186 and 353 IPC . Arguments on sentence shall be heard separately.
Announced in open Court (PRASHANT KUMAR)
Dated 12.8.08 Metropolitan Magistrate
Delhi
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FIR NO. 565/97
PS A N
12.8.08
Present : APP for the state.
Accused present on bail alongwith counsel.
Final arguments heard at length. Final judgment pronounced vide separate order sheet. Accused Om Parkash s/o Dal Chand is convicted u/s 186/353 IPC. Put up for hearing arguments on sentence on 26.8.08 (PRASHANT KUMAR) Metropolitan Magistrate Delhi 12.8.08 19 FIR No. 565/97 PS Adarsh nagar 26.08.08 Present: Ld APP for the State.
Accused present on bail with counsel.
At request, put up for arguments on sentence on 4.9.08 MM/Delhi/26.8.08 20 FIR No. 565/97 PS Adarsh nagar 4.9.08 Present: Ld APP for the State.
Accused is not present.
Counsel for accused. One application for seeking personal exemption is filed on behalf of accused. Heard. Application for seeking personal exemption is allowed however only for today.
Put up for arguments on sentence on 19.9.08 MM/Delhi/4.9.08 21 IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Om Prakash
FIR NO : 565/97
U/s : 186/353 IPC
PS : Adarsh Nagar
ORDER ON SENTENCE
19.09.08
Present : Ld. APP for the State.
Accused is present on bail with counsel.
Arguments on sentence heard. Record perused. Ld. Counsel for the accused has stated that accused is a Govt. Servant. He is not previously convicted for any other offence. He is the main bread earner of his family . Thus, the counsel for accused prays for considering the provisions of Probation of Offenders Act. He has also relied upon three authorities :-
1. AIR Supreme Court 1278
2. AIR 2001 Supreme Court 2058
3. AIR 2000 Supreme Court 1677 All these authorities so filed is relied upon by ld. Defence counsel for accused is perused and considered accordingly. Looking into the nature of allegations against the accused and his conduct , I am of the considered opinion that accused had committed the act which is grave in 22 nature. He has misused his powers and tried to influence and pressurise the other Govt. Officials who were discharging of their official duties , thus in these circumstances the plea of considering the provisions of Probation of Offenders Act cannot be considered in this case.
Arguments on sentence heard at length. It is stated by the counsel for accused that accused has already face the departmental enquiry in which he has held guilty and his four increments have also been stopped. Thus, it has already come on record as per the submission of counsel for accused himself that department of accused where he was employed had also hold him guilty. The act so committed by the accused is unprecedented and such an act on the part of the accused should be curbed with iron hands, thus, in these circumstances Om Parkash S/o Dal Chand is sentenced to undergo imprisonment for 10 days u/sec. 186 IPC as well as simple imprisonment for 2 months u/sec. 353 IPC . Both these sentences shall run concurrently.
Announced in open court (PRASHANT KUMAR)
Dated 19.9.08 Metropolitan Magistrate
Delhi
23
State Vs. : Om Prakash
FIR NO : 565/97
U/s : 186/353 IPC
PS : Adarsh Nagar
19.9.08
Present : APP for the state.
Accused is present on bail with counsel.
Arguments on sentence heard vide separate order sheet. Accused Om Parkash S/o Dal Chand is sentenced to undergo imprisonment for 10 days u/sec. 186 IPC as well as simple imprisonment for 2 months u/sec. 353 IPC . Both these sentences shall run concurrently.
At this stage one application is filed on behalf of the accused/convicted for seeking bail during the time for filing the appeal . However as per the Provision of /Section 389 Cr.P.C. appeal does arise in the case where the sentence is less than three months. Thus, in these facts and circumstances of the case, the application does not lie against the said order. Thus the application for seeking suspension of sentence in the present case is not maintainable, hence dismissed. File be consigned to record room.
(PRASHANT KUMAR) Metropolitan Magistrate Delhi /19.9.08 24