Himachal Pradesh High Court
Date Of Decision: 17.09.2024 vs State Of Hp & Anr on 17 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:8778 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.607 of 2024 Date of Decision: 17.09.2024 .
_______________________________________________________ Karun Nagar .......Petitioner Versus State of HP & Anr.
... Respondents Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner:
For the Respondent:
r to
Mr. Happy Thakur and Mr. Hemant Kumar
Thakur, Advocates.
Mr. Rajan Kahol & Mr. B.C. Verma, Additional Advocate Generals with Mr. Ravi Chauhan, Deputy Advocate General for respondent-
State.
_______________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition, prayer has been made by the petitioner for quashing of Kalandra under Sections 186 and 189 of Indian Penal Code filed by the Police Station Sadar, District Shimla, H.P., as well as consequent proceedings pending adjudication in the court of learned Additional Chief Judicial Magistrate, Court No. I, Shimla, District Shimla, HP in Kalandra No.3 of 2022 titled as State of Himachal Pradesh Vs. Karun Nager.
2. Precisely, the facts of the case as emerge from the record are that on 18.5.2022, Mr. Janesh Mahajan, Advocate, made a complaint to the Police Helpline No. 112 at Police Post Lakkar Bazar, ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 2 2024:HHC:8778 Shimla, alleging therein that some people had parked their vehicles on the roadside from Ever Sunny to Oak Tree Hotel on Bharari road, .
as a result thereof, a lot of inconvenience is being caused to the local residents, who are unable to ply their vehicles. After having received aforesaid complaint, Mr. Ajay Sharma Head Constable and Mr. Ram Lal, Constable, came to the spot and found that many vehicles were parked unauthorizedly on the road and as such, they challaned the vehicles parked unauthorizedly on the roads. While Ajay Sharma was challaning the vehicles, he saw one person coming on motorcycle from Lakkar Bazar side. Since such person was not wearing helmet, above named Head Constable Sh. Ajay Sharma asked him to stop the motorcycle, but driver of the motorcycle not only ran away from the spot, but also disrespected the police officials. After having noticed uncalled for behaviour of the driver of the motorcycle Head Constable, Ajay Kumar followed him on motorcycle of person namely Chander Shekhar and at some distance from Hotel Oak Tree, Ajay Sharma, was able to spot the driver of the motorcycle, whose name subsequently came to be transpired as Karun Nagar i.e. petitioner herein. Head Constable Ajay Kumar asked him to show the papers of the motorcycle, but he while blatantly refusing to show the papers repeatedly threatened Head Constable Ajay Kumar that he may have to face the consequences of taking cudgel with him. Admittedly ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 3 2024:HHC:8778 person namely Karun Nagar also proclaimed himself to be a government officials and repeatedly, warned Ajay Sharma, not to take .
cudgels with him. Allegedly, Karun Nagar, also started recording/filming video on his mobile, but on account of his having not produced the documents, HC Ajay Sharma, challaned him on the spot. Since petitioner Karun Nagar besides fleeing from the spot had also caused obstruction to the police officials while they were discharging public functions, Kalandra under Sections 186 and 189 IPC came to be presented against him in the competent court of law at the behest of HC Ajay Sharma.
3. Learned Judicial Magistrate First Class, Court No.1 Shimla, after taking cognizance of the allegations made in the Kalandra issued process against the petitioner, but before same could be taken to its logical end, he has approached this court in the instant proceedings for quashing of Kalandra on the ground that no case much less under Sections 186 and 189 of the Indian Penal Code is made out.
4. Mr. Happy Thakur, learned counsel for the petitioner, while making this court peruse provisions contained under Section 186 of Indian Penal Code vis-a-vis allegations levelled against the petitioner, vehemently argued that at no point of time, obstruction, if any, was caused by the petitioner to the police officials, who allegedly ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 4 2024:HHC:8778 at that relevant time were checking the vehicles. Above named counsel, while making this court peruse contents of Kalandra further .
argued that as per own case of the prosecution, petitioner despite his being asked to stop, failed to stop his vehicle and thereafter, refused to show his documents and in that regard, he was challaned subsequently. Learned counsel for the petitioner further submitted that there is nothing in the Kalandra suggestive of the fact that petitioner ever misbehaved or obstructed Head Constable Ajay Sharma from doing his duty, rather material adduced on record by the investigating agency suggests that petitioner besides fleeing from the spot claimed himself to be a government employee and also started recording video on his mobile phone, which act of his does not fall in the ambit of Section 186 of the IPC. Learned counsel for the petitioner submitted that since no voluntary obstruction, if any, was ever caused by the petitioner, thereby preventing the police officials from discharging their public duty, chances of conviction of the petitioner are very remote and bleak. Hence, continuance of proceedings under Sections 186 and 189 of Indian Penal Code, which are otherwise bound to fail, would not only waste the precious time of the court, but would also unnecessarily cause harassment to the petitioner.
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5. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while justifying filing of the Kalandra under the .
relevant provisions of law, vehemently argued that once petitioner failed to stop his vehicle despite signal being given by the Police officials and failed to produce documents, no illegality can be said to have been committed by HC Ajay Sharma while initiating proceedings under Sections 186 and 189 of the IPC. He further submitted that very act of recording video amounts to obstruction. Mr. Kahol, states that though bare reading of Kalandra itself suggests that petitioner accused was challaned on the spot by the police officials, but yet no illegality can be said to have been committed by the police officials while filing Kalandra under Section 186 for causing obstruction at the behest of petitioner-accused, who besides failing to stop the vehicle also started mis-behaving with the police officials on being asked to produce the documents of vehicle.
6. Before ascertaining the genuineness and correctness of the submissions and counter submissions having been made by the learned counsel for the parties vis-à-vis prayer made in the instant petition, this Court deems it necessary to discuss/elaborate the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC.
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7. Reliance is placed upon judgment passed by the Hon'ble Apex Court in case titled A.M. Mohan v. State, 2024 SCC OnLine .
SC 339, relevant para whereof reads as under:
"9. The law with regard to exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited1 after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions.
To mention a few--Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 7 2024:HHC:8778 complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the .
criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged.
If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v.) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 8 2024:HHC:8778 criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed : (SCC p. 643, para 8) .
"It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
8. Hon'ble Apex Court in judgment titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 has laid down several principles, which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. Before pronouncement of aforesaid judgment rendered by the Hon'ble Apex Court, a three-
Judge Bench of Hon'ble Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 9 2024:HHC:8778 of the Court or that the ends of justice require that the proceeding ought to be quashed. Relevant para is being reproduced herein .
below:-
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the 59 inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
9. Subsequently, Hon'ble Apex Court in Vineet Kumar and Ors. v. State of U.P. and Anr., while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to quashed. The Hon'ble Apex Court has further held that the saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. a court proceeding ought not to ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 10 2024:HHC:8778 be permitted to degenerate into a weapon of harassment or persecution. In the aforesaid case, the Hon'ble Apex Court culled out .
note seven categories, where power can be exercised under Section 482 Cr.PC, as enumerated in Bhajan Lal (supra), i.e. where a criminal proceeding is manifestly attended with malafides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, quashed the proceedings.
10. Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, while drawing strength from its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, has reiterated that High Court has inherent power under Section 482 Cr.PC., to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. While invoking its inherent jurisdiction under Section 482 of the Cr.P.C., the High Court has to be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrules the veracity of the allegations contained in the accusations levelled by the ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 11 2024:HHC:8778 prosecution/complainant. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss .
and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 12 2024:HHC:8778 refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its .
power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3 Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
11. Hon'ble Apex Court in Asmathunnisa v. State of A.P. (2011) 11 SCC 259, has held as under:
"12. This Court, in a number of cases, has laid down the scope and ambit of the High Court's power under section 482 of the Code of Criminal Procedure. Inherent power under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified 9 by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
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13. The law has been crystallized more than half a century ago in the case of R.P. Kapur v. State of Punjab AIR 1960 SC 866 wherein this Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. This Court summarized the following three broad .
categories where the High Court would be justified in exercise of its powers under section 482:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
14.In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, according to the court, the process against the accused can be quashed or set aside :
"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no 10 prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the d iscretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like".
15. This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699, observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent cases of this court and other courts."
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12. Hon'ble Apex Court in Asmathunnisa (supra) has categorically held that where discretion exercised by the Magistrate in .
issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like, High Court would be justified in exercise of its powers under S. 482 CrPC.
13. From the bare perusal of aforesaid exposition of law, it is quite apparent that exercising its inherent power under Section 482 Cr.PC., High Court can proceed to quash the proceedings, if it comes to the conclusion that allowing the proceedings to continue would be an abuse of process of the law.
14. Now, being guided by aforesaid law taken into consideration, this court would make an endeavour to find out "whether case, if any, much less under Sections 186 and 189 of Indian Penal Code is made out against the petitioner-accused or not?"
15. No doubt, as per case of the prosecution, on the date of alleged incident, petitioner failed to stop his vehicle despite signal given by the police, but it is also not in dispute that after some distance, police official was able to locate the vehicle being driven by the petitioner and he was challaned for his having not produced the ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 15 2024:HHC:8778 documents, proceedings under Sections 186 and 189 of IPC came to be initiated against the petitioner on account of his having caused .
obstruction in discharge of public duty by police official namely HC Ajay Kumar. As per case of the prosecution when police demanded documents petitioner, accused started recording video.
16. Having taken note of allegations contained in the Kalandra filed under Section 186 of Indian Penal Code, which have been otherwise taken note in the earlier part of judgment, this court is persuaded to agree with Mr. Happy Thakur, learned counsel for the petitioner that no case under Section 186 of Indian Penal Code is made out. At this stage, it would be apt to take note of Section 186 of Indian Penal Code, which reads as under:
"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."
17. To invoke aforesaid provision of law, it is incumbent upon prosecution to prove that person charged with aforesaid section voluntarily obstructed any public servant in discharge of his public function. Section 186 IPC, provides for conviction of a person, who ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 16 2024:HHC:8778 voluntarily obstructed any public servant in the discharge of public function, with imprisonment, which may extend to three months or .
fine, however, in the instant case, there is nothing on record to suggest that the petitioner stopped Police from challaning him, rather police, after having noticed certain discrepancies, challaned him.
Making certain remarks, if any, on the spot may not be sufficient to conclude obstruction, if any, caused by the petitioner. Otherwise also, import of the remarks allegedly made by the petitioner, as have taken note hereinabove, nowhere indicates that an attempt was made by the petitioner to dissuade the Police officials from doing their duty, rather by recording video, petitioner attempted to prove that he is being unnecessarily harassed.
18. Since, petitioner had not produced the documents, police officials straightaway ought to have impounded the vehicle in question, which procedure was not adopted by them, rather police officials challaned him. Since, there is nothing on record to suggest that obstruction, if any, was ever caused by the petitioner while police officials challaned him, no proceeding, if any, under Section 186 of the Indian Penal Code could have been initiated against him. Since, basic ingredients of Section 186 of the Indian Penal Code are missing, chances of conviction of the petitioner-accused in trial, if permitted to continue, are very remote and bleak. If it is so, no fruitful ::: Downloaded on - 19/09/2024 20:29:55 :::CIS 17 2024:HHC:8778 purpose would be served by permitting the trial to continue, rather continuance of trial would amount to sheer abuse of process of law.
.
19. Next question, which arises for consideration is that whether act of the petitioner making video would amount to voluntarily causing obstruction or not?
20. Once there is no allegation that accused used physical force to cause any obstruction to the Police official, who admittedly after having noticed certain non-compliances on the part of the accused-petitioner, challaned him under the relevant provisions of Motor Vehicle Act, no case under Section 186 of the Indian Penal Code, could have been initiated against the petitioner. In order to make out an offence punishable under Section 186 of the Indian Penal Code, it is incumbent upon the prosecution to show that 1.) accused voluntarily obstructed a public servant and 2.) such obstruction was caused in discharge of public function of such public servant. The term "voluntarily" contemplate the commission of some overt act; mere passive conduct of a person would not amount to causing obstruction. In the present case, it is none of the case of the prosecution that petitioner obstructed the police officials from challaning him or impounding his vehicle. Rather, in the case at hand, police concerned challaned the petitioner.
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21. Precise allegation in the case at hand against the petitioner is that he started recording video and also made certain .
comments, but certainly, such act, if any, of his, cannot be considered obstruction, if any, caused by the petitioner.
22. No doubt, expression "obstruction" does not unnecessarily mean physical obstruction, but in my view, any action accompanied by either show of force or threat or having the effect of obstructing the public servant from carrying out his duty, would constitute 'obstruction' for the purpose of Section 186 of the Indian Penal Code. In the case at hand, Police Officer was never obstructed in any manner in discharge of his duty, rather he after having taken note of the fact that petitioner was riding the motorcycle without wearing helmet, challaned him, mere protesting or using intemperate language without an overt act, will not be an offence punishable under Section 186 of the Indian Penal Code. Passive conduct without disturbing a public servant in discharge of his functions or duties will not amount to voluntary obstructing a public servant within the meaning of Section 186 of the Indian Penal Code.
23. Reliance is placed upon judgment passed by this Court in Surinder Singh Chauhan v. State of Himachal Pradesh, 2002 1 CurLJ 332.
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24. Consequently, in view of the aforesaid discussion as well as law taken note hereinabove, Kalandra under Sections 186 and .
189 of Indian Penal Code filed by the Police Station Sadar, District Shimla, H.P., as well as consequent proceedings pending adjudication in the court of learned Additional Chief Judicial Magistrate, Court No. I, Shimla, District Shimla, HP in Kalandra No.3 of 2022 titled as State of Himachal Pradesh Vs. Karun Nager, are quashed and set aside. Accused is acquitted of the charges framed against him.
The petition stands disposed of in the aforesaid terms, alongwith all pending applications.
(Sandeep Sharma), Judge September 17, 2024 manjit ::: Downloaded on - 19/09/2024 20:29:55 :::CIS