Delhi District Court
State ...........Prosecution vs . on 30 September, 2021
IN THE COURT OF Ms. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST DISTRICT,
DWARKA COURTS, NEW DELHI
FIR No. 24/16
Police Station Domestic Airport
Under Section(s) 186/353 IPC
Cr. Case no. 430375/2016
CNR no. DLSW020073092016
IN THE MATTER OF:
State ...........Prosecution
Vs.
Gaurav Sahni
S/o Sh. Sunil Sahni
R/o E18, Kalindi Colony,
Sriniwaspuri, New Delhi110065 ...............Accused
1. Name of complainant : Sh. Pervez Noor
2. Name of accused : Gaurav Sahni
3. Offence complained of : Under Sections 186 and 353,
Indian Penal Code, 1860.
4. Plea of accused : Not guilty
4. Date of commission of offence : 25.01.2015
5. Date of institution of case : 04.07.2016
6. Date of reserving judgment : 08.09.2021
7. Date of pronouncement : 30.09.2021
8. Final judgment : Acquitted
JUDGMENT: State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.1/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 14:58:00 +05'30'
1. The present case pertains to prosecution of accused in respect of offences punishable u/S 186 and 353 of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. The facts of present prosecution case lie in a narrow compass. On 25.01.2015 at about 9.40 AM, the accused travelling to Jaipur from Domestic Airport Delhi by Spicejet Airline SG 2623, approached at the desk of complainant Sh. Pervez Noor, Insp/Exec CISF and stated that he wanted to meet Spicejet staff. When the complainant told him that the staff would be available at the boarding gate, the accused tried to immediately run out of the restricted areas of Security Hold Area (SHA) forcefully despite being stopped by him and ASI/Exe Yadgiri. The accused further used abusive language 'Fuck you' and 'Bloody bastard' and in this manner, created obstruction in the discharge of their duties and breached the security norms. The accused was apprehended and upon enquiry, he revealed his name to the complainant. Thereafter, the complainant filed a complaint and handed over the accused at PS Domestic Airport for further course of action. From the contents of complaint, the FIR was registered on the same date. Further investigation was undertaken by IO who recorded the statements of witnesses under Section 161 Cr. P. C. The accused was interrogated and his arrest was deferred. The site plan was prepared; CCTV footage, duty roster of CISF staff as well as flight manifest of SG 2623 dated 25.01.2015 were obtained. Upon the culmination of investigation, a complaint u/S 195 Criminal Procedure Code (henceforth 'Cr.P.C') was also obtained from the commanding officer of complainant. Finally, the chargesheet was filed against the accused in court.
3. Cognizance was taken of offences u/S 186 and 353 IPC and the accused was summoned to face trial for said offences. On his appearance, the State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.2/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 14:58:29 +05'30' copy of chargesheet was supplied to accused.
4. On the basis of material filed along with chargesheet, charge was framed against the accused for offences u/S 186 and 353 IPC to which he pleaded not guilty and claimed trial. The accused admitted the recording of FIR registered on 25.01.2150 under Section 294 of Cr. P. C. and consequently, PW HC Rajesh Malik was dropped from the list of witnesses and the FIR was marked as Ex. P/A/1 vide court order dated 28.02.2020.
5. In the pursuit to prove its case, the prosecution examined eight witnesses in all. PW1 Pervez Noor, Inspector CISF (the complainant) stated that on 25.01.2015, he was the incharge, Security Hold Area (SHA) at Terminal1D. At 9.40 AM, the accused, who was travelling from Delhi to Jaipur by Spicejet 2623 and whose name was revealed upon enquiry, approached at his desk and said that he wanted to meet the Spicejet staff as he wanted to go outside. He told the accused that staff would be available at the boarding gate, whereafter, he tried to go away from SHA which is not allowed once the passenger is inside after the security check. Despite trying to stop the accused, he tried to run away and crossed security check where ASI Yadgiri was present. Thereafter, he along with ASI Yadgiri stopped the accused and tried to bring him back upon which he used abusive language against them by saying 'Fuck you' and 'Bloody bastards'. In this manner, the accused created obstruction in their duties and breached the security norms. A call was made from Control Room of CISF to police station and then the PCR arrived at the spot. They took the accused to police station where he lodged his complaint which is Ex. PW1/A and handed over the accused to police. The site plan was prepared at his instance, tendered in evidence as Ex. PW1/B and he identified the accused correctly in court.
State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.3/19
BHARTI Digitally signed
by BHARTI GARG
GARG Date: 2021.09.30
14:58:59 +05'30'
6. In his crossexamination, the witness stated that the accused had come from SHA and he himself was standing near the XRay machine at checking point. He further stated that the accused used abusive language against him when he stopped him from going back.
7. PW2 ASI Yadgiri CISF (the eye witness) deposed in similar vein as PW1 Pervez Noor as he stated that on 25.01.2015 at around 9.40 AM, while he was on frisking duty at XBIS G Machine at Terminal1D, he saw that the accused came to the desk of Pervez Noor and said he wanted to meet Spicejet staff. When Pervez Noor told the accused that staff would be available at the boarding gate, he tried to run away and thereafter, he stopped him and took to Inspector, whereafter, the accused uttered abusive words like 'Fuck you' and 'Bloody bastard'. The conduct of accused caused disturbance in their duties. He testified as to the site plan Ex. PW1/B having been made in his presence. He also identified the accused correctly in court.
8. In his crossexamination, PW2 ASI Yadgiri stated that the distance between the desk of Pervez Noor and the place where he was frisking was nominal as he had overheard the conversation between Pervez Noor and accused. He further stated that he stopped the accused by holding his hand after which he took him to the Inspector.
9. PW5 Arun Singh, Senior Commandant, CISF stated that on 29.07.2015, a written application was given to Magistrate, Dwarka Courts, New Delhi to seek permission for filing complaint u/S 195 Cr.P.C in the present case by the erstwhile commandant Sh. Narender Dev Anand which is tendered as Ex. PW5/A. He stated the same to be true as per his knowledge in official capacity. He was crossexamined by the accused, wherein he stated that he was posted at Guwahati Airport on the date of incident. He further stated that he did not have State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.4/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 14:59:10 +05'30' any personal knowledge of the present case and acquired such knowledge only from the record kept at department.
10. The remaining are formal witnesses. PW3 Rajendra Tripathi, CISF proved the duty deployment of complainant Pervez Noor which is tendered as Ex. PW3/A. PW4 SI Lalit Namdev, CISF proved the CD containing footage of spot of incidence as Ex. PW4/A along with certificate u/S 65B of Indian Evidence Act Ex. PW4/B. PW6 Amit Israni proved the passenger manifest of flight no. SG2623 dated 25.012.2015 as Ex. PW6/A. He further deposed that the said flight was cancelled due to adverse weather conditions.
11. PW7 SI Mukesh Baliyan (the IO of present case) deposed that the complainant had come along with accused to police station on 25.01.2015 and given a written complaint Ex. PW1/A whereon he made an endorsement Ex. PW7/A and presented the rukka to DO for registration of FIR. During the course of investigation, he visited the spot of incident along with complainant and prepared the site plan Ex. PW1/B. He interrogated the accused and his arrest was deferred. He collected the documents of flight manifest Ex. PW6/A, CCTV footage in the form of CD Ex. PW4/A as well as certificate Ex. PW4/B and complaint u/S 195 Cr,P.C Ex. PW5/A. The CD containing CCTV footage was played in court during his deposition, wherein, the accused was seen going inside the SHA despite the CISF officials trying to stop him. PW6 ASI Ishwar Singh was crossexamined by the accused. He admitted that the CCTV footage contains no sound. He denied the suggestion that the investigation was not conducted in a fair manner.
12. PW8 SI Vipin Kumar (the second IO) stated that he received the file of present case when investigation was completed and thus, he prepared the State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.5/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2021.09.30 14:59:19 +05'30' chargesheet and filed the same in court.
13. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 313 Cr. P. C. All the incriminating circumstances appearing against the accused in evidence were put to him. The accused expressed ignorance about most of the facts as he stated either that he did not know or that it was a matter of record. Nevertheless, he admitted that he had a flight from Delhi to Jaipur on 25.01.2015 by Spicejet SG 2623. He also affirmed that at about 9.40 AM he had approached at the desk of complainant and said that he wanted to meet Spicejet staff because he wanted to enquire about his luggage as the flight had been cancelled. However, he denied as having committed any of the illicit acts alleged by the prosecution. The accused submitted that he did not intend to lead defence evidence. Accordingly, defence evidence was closed and the matter was taken up for final arguments.
14. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The statements of PW1 Pervez Noor and PW2 ASI Yadgiri are consistent with each other and the CCTV footage proves that the accused committed the alleged acts. Therefore, it is prayed that the accused be convicted of alleged offence.
15. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on various grounds. She has argued that the conversation is not audible in the CCTV footage and similarly the words 'Fuck you' and 'Bloody bastards'. Even otherwise, mere utterance of these words does not amount to assault or criminal force as is embodied u/S 353 IPC. Furthermore, there was no obstruction in duties of the complainant as the accused did not prevent them from holding him and also did not use any force as such. Lastly, by relying upon the judgment of Hon'ble Bombay High Court, bench State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.6/19 BHARTI GARG Digitally signed by BHARTI GARG Date: 2021.09.30 14:59:28 +05'30' Aurangabad, in Kundan s/o Khanderao Dhande Vs. Vasudeo s/o Nivrut Fegde and Anr. Criminal application no. 4527/2016 dated 25.10.2016, it is submitted that cognizance with respect to offence u/S 186 IPC is not tenable in the absence of proper complaint u/S 195 Cr.P.C, warranting the acquittal of accused qua this offence as well.
16. Arguments heard. Record perused. Considered.
17. Before embarking upon the appreciation of evidences, it would be apposite to reproduce the provisions for which the accused has faced trial: "186. Obstructing public servant in discharge of public functions.--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."
"353. Assault or criminal force to deter public servant from discharge of his duty.--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 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".
18. The import of both these sections is to punish persons who create obstruction in the discharge of duties of public servants. While Section 186 IPC envisages merely voluntary obstruction, section 353 IPC lays down an additional condition that such obstruction must be caused by assaulting or using criminal force against the public servant. In fact, the distinction between these State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.7/19 BHARTI GARG Digitally signed by BHARTI GARG Date: 2021.09.30 14:59:38 +05'30' two provisions has been clearly borne out in Durgacharan Naik & Ors. Vs. State of Orissa AIR 1966 SC 1775 by the Hon'ble Supreme Court in the following words: "5..... 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 and 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 his 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."
19. In the instant case, the court is posed with following questions for determination to Adjudge the veracity of prosecution case:
(a) whether the complainant namely Pervez Noor and the other victim namely ASI Yadgiri were public servants at the time of alleged commission of offences in question?
(b) whether the said persons were acting in discharge of their public functions assigned to them?
(c) whether any obstruction or deterrence was caused to the said persons in the State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.8/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 14:59:49 +05'30' discharge of their public functions by the act of accused?
(d) (i) for the purpose of Section 186 IPC, whether the complaint was filed before this court u/S 195 Cr.P.C?
(ii) for the purpose of Section 353 IPC, whether the accused had assaulted or used any criminal force to the said persons during the execution of their duties?
20. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. Thus, the prosecution is under a bounden duty to prove all these points on the aforesaid standard to drive home the guilt of accused.
21. As regards the first point, there is ample evidence on record to prove that the complainant/PW1 Pervez Noor and the other victim/PW2 ASI Yadgiri were public servants at the time when the acts allegedly constituting the offences in question were committed by the accused on 25.01.2015. Section 21 IPC defines as to who is a public servant. The clauses relevant to this case are: Eighth. -- Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience; Twelfth --Every person--
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
22. It has come in evidence of PW1 Pervez Noor that he was the Inspector CISF and in evidence of PW2 ASI Yadgiri that he was the ASI CISF, meaning thereby that they were the officials of CISF on duty at Domestic Airport on the said date. At no point in time during the trial, the accused raised any dispute regarding the fact that they were public servants as not even a single State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.9/19 BHARTI GARG Digitally signed by BHARTI GARG Date: 2021.09.30 15:00:00 +05'30' suggestion to that effect was put in crossexamination of either of the witnesses. The designations of both PW1 Pervez Noor and PW2 ASI Yadgiri are squarely covered within the abovestated clauses of Section 21 IPC. Being the officials of CISF, they were performing the public duty and were the persons in the service or pay of the Government. Undoubtedly, they also had a duty to prevent offences, give information of offences and protect the safety or convenience of public within the confines of Domestic Airport. Hence, it is proved that both of them were public servants on 25.01.2015 at Domestic Airport when the incident in question took place.
23. Proceeding to the second issue, first and foremost, the accused has himself admitted in his statement recorded u/S 313 Cr.P.C that on 25.01.2015 he had a flight from Delhi to Jaipur by Spicejet SG2623 and that at about 9.40 AM, he had approached PW1 Pervez Noor at his desk to enquire about the Spicejet staff about luggage as his flight had been cancelled. At this juncture, this court seeks to rely on the following observations of The Hon'ble High Court of Bombay in the case of State of Maharashtra Vs. Alister Anthony Pareira 2007 SCC OnLine Bom 1489 (and further affirmed by Hon'ble Apex Court in appeal) as regards the use of statement made by accused without oath during the stage of Section 313 Cr.P.C: "While rejecting this contention we would also observe that the admission or confession of the accused in his statement under Section 313 of the Code, in so far as it provides support or even links to, or aids the case of the prosecution proved on record, can also be looked into by the court in arriving at its final conclusion. It will be more so when explanation in the form of answers given by the accused under Section 313 of the Code are apparently untrue and also when no cross examination of the crucial prosecution witnesses was State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.10/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2021.09.30 15:00:10 +05'30' conducted on this line."
24. Therefore, not only he has affirmed his presence at the spot of incident on the relevant date but also that he went to PW1 Pervez Noor to make enquiry at his desk. This is indicative of the fact that PW1 Pervez Noor was on duty when the accused had approached him, for the reason that a reasonable person would ordinarily make enquiries at a public place like Airport from the persons whom s/he perceives to be in a position to answer such enquiries or in other words, who conducts his/her duties at such a place.
25. Moreover, PW1 Pervez Noor has also stated in his examinationin chief that on 25.01.2015, he was posted at Domestic Airport, Terminal 1D and was incharge of SHA. Similarly, PW2 ASI Yadgiri has stated that he was posted at a XBIS Machine at Terminal1D on that date and was working in the A Shift. Their testimonies on that point have remained unchallenged. It is further corroborated by the duty roster Ex. PW3/A which records the deployment of Inspector Pervez Noor as incharge SHA and of ASI Yadgiri at SHA 1D XBISNO on 25.01.2015 from 0500 to 1300 hours.
26. The incident pertains to 0940 hours, to be more specific. Both the witnesses have deposed about the acts committed by the accused in their presence at that time while they performing their respective duties. PW1 Pervez Noor has deposed that the accused had come over to his desk to make enquiries and he tried to run away despite being asked to stop and crossed the SHA without permission. PW2 ASI Yadgiri has stated that he was frisking the passengers when he witnessed the said incident and when the accused crossed the security check, he had stopped him. Thereafter, the accused had used the cuss words against them. This gives an account of where the complainant and State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.11/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2021.09.30 15:00:22 +05'30' victim were at the time of incident. Also, the CD Ex. PW4/A containing the CCTV footage of the incident stands duly proved and upon playing the same, it shows the complainant as well as the other victim with which the accused entered into altercation to be in their CISF uniforms. It is reflected that they were performing their duties when the scuffle with accused occurred. Therefore, it is proved without any doubt that both of them were acting in discharge of their official duties when the incident in question happened.
27. Onto the third issue of whether the conduct of accused was such as to lead obstruction in the duties of concerned CISF officials, the testimonies of the complainant PW1 Pervez Noor and victim PW2 ASI Yadgiri themselves, yet again, assume significance. As noted hereinabove, both these crucial witnesses have stated that the accused tried to run away from SHA despite being asked to stop as the same was not allowed and further, he crossed the security check when ASI Yadgiri stopped him. Then the accused abused them by uttering the words 'Fuck you' and 'Bloody bastards'. In this manner, they have categorically stated, the accused created obstruction in their duties. Their oral evidence is in consonance with the CCTV footage contained in CD Ex. PW4/A. In the CCTV footage as well, one can clearly see the accused coming over to the desk of complainant, then running away from the SHA despite the CISF official trying to stop him. After crossing a certain point at security check, another CISF official is seen stopping him by catching hold of his hand. Thereafter, the accused goes away from the scene. Similar observation was made by the Ld. Predecessor while recording the evidence of PW7 IO SI Mukesh Baliyan. The witness had also correctly identified the person seen in CD as accused. There is no substantial challenge from the side of accused on the question of his identity or his presence in the CCTV footage. In fact, the State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.12/19 BHARTI GARG Digitally signed by BHARTI GARG Date: 2021.09.30 15:00:36 +05'30' accused has also admitted as having made enquiry from PW1 Pervez Noor which corroborates the fact that the person seen in the CD is accused himself. Notably, no audio can be heard during the entire course of playing CD Ex. PW4/A.
28. During the course of arguments, the Ld. Counsel for accused has waxed eloquent about the fact that there is no such obstruction as the accused did not prevent the CISF officials from stopping or holding him. She has also submitted that the words allegedly spoken by the accused are not audible in the CCTV footage and even if it were so, the mere use of words would not amount to obstruction since the accused was in a disgruntled state of mind as he was to attend the last rites of his grandmother and his flight had been cancelled. The court does not countenance with either of the limbs of contention of Ld. Counsel. When the accused tried to run towards the SHA despite being asked to stop by the CISF official on duty, there was an obstruction in duties by disobedience of his directions. Due to this, the said official had to run behind him by leaving his desk and with the help of another official on duty, the accused was stopped by catching hold of his hand.
29. Quite significantly, it is not the case where the accused had voluntarily stopped when his conduct was protested by the CISF officials from behind; rather, he halted involuntarily when his hand was caught hold of by the official on duty. Had he not been so stopped, the accused would have crossed the SHA completely, in violation of rules. The security at Airports is viewed with utmost solemnity. The accused had misconducted himself at the very area where the passengers are frisked thoroughly to steer clear of security concerns. This would have raised even more apprehension in the mind of complainant and victim who were on duty, and rightly so. Thus, the very act of accused in failing State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.13/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 15:01:00 +05'30' to fall in line with the directions of complainant amounts to creation of voluntary deterrence in the discharge of his duties. The fact that the accused was agitated due to personal reasons serves as no lawful excuse to obstruct lawful exercise of powers in public safety.
30. Similarly, the fact that after having been caught hold of, the accused did not protest or prevent the official from holding him, does not wipe away the effect of his preceding conduct which itself constituted 'obstruction', as discussed hereinabove. Had the accused done that as well, his act would have qualified to be an 'assault', but at this stage it would be safe to say that the misconduct of accused just fell short of an 'assault', which will be elaborated in the later part of this judgment. As far as abusing the public servants on duty is concerned, the court is of the firm opinion that same is clearly unwarranted and the civilians ought to consider treating them with due respect particularly when no blame can be imputed on their part while discharging their duties. It was the accused who was the aggressor in this incident and by using such unbecoming words as 'Fuck you' and 'Bloody bastards' against those discharging their public duties necessarily create an obstruction therein.
31. Although it is true that these words are not audible in the CCTV footage because it has no sound at all, nonetheless, the coherent testimonies of PW1 Pervez Noor and PW2 ASI Yadgiri in that regard are sufficient to prove that the accused had uttered those words against them. This is more so because the CCTV in question had been placed at a highly crowded public place, as is discernible from watching the same, and such conversation taking place between the victims and accused would have, much presumably, remained imperceptible amidst the commotion caused by noises of other public persons seen in the CCTV footage. Based on the above discussion, it is unhesitatingly State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.14/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 15:01:39 +05'30' concluded that there was obstruction and deterrence in the discharge of duties by PW1 Pervez Noor and ASI Yadgiri by the voluntary acts of accused.
32. Nevertheless, for proving the charge of Section 186 IPC, there has to be fulfilment of the procedural requirement of section 195 Cr.P.C as well. This brings us to the point of determination (d) (i). As per Section 195(1)(a)(i), the cognizance for offence under Section 186 IPC could be taken only upon the written complaint of public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, the complaint u/S 195 Cr.P.C Ex. PW5/A is on record. The same is signed by 'Commandant, For Dy. Inspector General/CASO, CISF Unit, IGI Airport, New Delhi' but whose name is not mentioned. The witness who came to prove the complaint is PW5 Arun Singh, Senior Commandant/CISF, IGI Airport, Delhi. He stated on oath that he was deposing in the capacity of being the incumbent commandant and that the complaint was signed by Mr. Narender Dev Anand who was now posted as AIG. He stated the same to be true in his official capacity only. In his crossexamination, he stated that on the date of incident, he was posted at Guwahati Airport and gained knowledge about the case only from the record kept in department.
33. However, PW5 Arun Singh failed to give account of how he was able to identify the signatures on the complaint Ex. PW5/A to be those of Mr. Narender Dev Anand, particularly when his name is also not mentioned anywhere in the said complaint. It is not the case where the witness was acquainted with his signatures as no statement to that effect has been made in his examinationin chief. In Mohd. Iqbai Ahmed Vs. State of Andhra Pradesh (1979) 4 SCC 172, the Hon'ble Supreme Court held that the burden lies on the prosecution to prove that the valid sanction has been granted by the sanctioning State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.15/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 15:01:51 +05'30' authority after it is satisfied that the case for sanction has been made out. Further, in C.B.I./SPE, Hyderabad Vs. P.Muthuraman 1996 Cri LJ 3638, the Hon'ble Andhra Pradesh has held that: "For the reasons stated in the preceding paragraph, I reach the conclusion that the signature on the sanction should be proved either by the sanctioning authority or by his subordinate officer or clerk who has seen the sanctioning authority signing the sanction order or who is acquainted with the signature of the sanctioning authority. Merely filing the order purported to be the sanction order alleged to have been signed by the competent authority, does not discharge the burden of the prosecution in proving the sanction according to law."
34. Thus, it is clear that the mere placing on record of the complaint u/S 195 Cr.P.C would not suffice and that it should have been proved like any other written document in accordance with Section 67 read with Section 47 of The Indian Evidence Act, 1872. The mere exhibiting of said document does not assist the case of prosecution as it is well settled that exhibiting of the document does not imply its proof. Reliance is placed upon the judgment of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal (2003) 8 SCC 745 wherein the Hon'ble Apex Court held that "the legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'. The prosecution has miserably failed on that front, which makes the accused entitled to benefit of doubt. In such a scenario, the charge u/S 186 IPC fails and the accused is acquitted of the said offence.
35. Coming to the last leg of our discussion, it has now to be seen if State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.16/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 15:02:03 +05'30' the accused had assaulted or used any criminal force to the victims during the execution of their duties so as to bring his act under the purview of Section 353 IPC. Criminal force is defined under Section 350 so as to mean intentional using of force to a person in order to commit offence or intending or knowing that by use of such force, injury, fear or annoyance would be caused to such person. Section 351 defines assault as making gesture or preparation intending or knowing it to be likely that such gesture or preparation will cause the other person apprehend that criminal force is about to be used. The explanation to this provision clarifies that mere words do not amount to assault unless such words give his gesture or preparation such a meaning as to amount assault.
36. In the case at hand, the conjoint reading of all the oral and documentary evidence, particularly of PW1 Pervez Noor, PW2 ASI Yadgiri and CCTV footage, shows that none of the acts could be approximated as being criminal force. The Ld. APP has argued that the fact of accused running away forcefully despite being asked to stop is equivalent to criminal force. However, accepting such an argument would run foul of the very definition of 'force' under Section 349 IPC. According to this provision, force must be physical and caused to another person by own bodily power, by any substance or through an animal. The accused did not cause any force to victims through any of these modes. The said act of accused was certainly a mark of protest of the directions of the complainant but not criminal force. The same also did not amount to assault since it cannot be said that this gesture or preparation made any one present at the spot apprehend that the accused would use criminal force to any person. In fact, the said gesture of accused was not aimed at any specific person on the scene as he merely tried to run away and cross the SHA without permission.
State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.17/19 Digitally signed by BHARTI BHARTI GARG GARG Date: 2021.09.30 15:02:16 +05'30'
37. Furthermore, the court agrees with the submission of Ld. Counsel for accused that use of abusive language against the victims also do not attract the offence of assault. In terms of the prosecution story itself, the accused had used the words 'Fuck you' and 'Bloody bastards' when he was ultimately stopped by the victims physically. Such a language would have been assault if it were coupled with such gesture or preparation as would make the victims apprehend that he was about to use criminal force to them. The court seeks reliance in that regard on Kundan s/o Khanderao Dhande (supra) cited on behalf of accused. But the accused did not even resist the victims when he was stopped physically and thereafter, went away quietly from the spot of incident. Even if taken to be unrebutted, the prosecution story falls short of satisfying the elements of assault or criminal force under Section 353 IPC. The accused deserves to be acquitted of the said offence as well.
38. The upshot of the foregoing discussion is that the prosecution has failed to establish the charge of Section 186 IPC due to procedural lacunae of not proving the complaint under Section 195 Cr.P.C. The charge of Section 353 IPC also fails owing to absence of any inculpatory act on the part of accused amounting to assault or criminal force, which is the prerequisite to convict a person under that provision. The basic ingredients of the offences have not been proved by prosecution so as to attract the offence of Section 186 and 353 IPC in the instant case. The inescapable conclusion is that the accused is entitled to benefit of doubt.
39. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the accused Gaurav Sahni S/o Sh. Sunil Sahni, R/o E18, Kalindi Colony, Sriniwaspuri, New Delhi 110065, is hereby acquitted of the offences punishable under Sections 186 and State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.18/19 BHARTI Digitally signed by BHARTI GARG GARG Date: 2021.09.30 15:02:28 +05'30' 353 of Indian Penal Code, 1860.
Pronounced in open court
in the presence of accused
on 30.09.2021. Digitally signed by BHARTI
BHARTI GARG GARG
Date: 2021.09.30 15:02:52
+05'30'
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/30.09.2021
It is certified that this judgment contains nineteen pages and each page has been signed by the undersigned.
BHARTI Digitally signed by
BHARTI GARG
GARG Date: 2021.09.30
15:02:40 +05'30'
Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/30.09.2021
State Vs. Gaurav Sahni CNR no. DLSW020073092016 Page no.19/19