Delhi District Court
Himanshu Kumar @ Himanshu Kaushik vs State on 27 February, 2023
IN THE COURT OF PRAVEEN KUMAR,
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI.
.
Crl. Rev. No.158/2022
CNR No. DLNE01-003456-2022
In the matter of:
Himanshu Kumar @ Himanshu Kaushik
S/o Sh. Raj Kumar Kaushik
R/o H. No. K-21/38,
Gali no.9, West Ghonda,
Delhi-110053. ......... Revisionist
Versus
1. State, Govt. of NCT of Delhi.
2. Sunil Kumar Premi
S/o Sh. Ram Phal Singh
R/o H. No.A420, Gali no.1,
Meet Nagar, Delhi110094 ...........Respondents
Date of registration of revision: 01.11.2022
Date when revision was received by this Court: 05.11.2022
Date of conclusion of arguments: 27.02.2023
Date of pronouncement of judgment: 27.02.2023
Memo of appearance:
Sh. S. G. Goswami, Ld. counsel for the revisionist.
Sh. Zenul Abedeen, Ld.Chief Prosecutor for the State-respondent no.1.
Sh. Mohit Sharma, Ld. Counsel for the respondent no.2
JUDGMENT:
PRAVEEN
1. This is a revision petition filed by the revisionistaccused KUMAR Digitally signed against the order dated 19.09.2022 passed by the Ld. MM01, North by PRAVEEN KUMAR Date: 2023.02.27 16:07:09 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 1/9 East, Karkardooma Courts, Delhi, whereby the Ld. MM directed framing of charge against the accused for offences punishable under Sections 186/332/353/34 IPC.
2. Trial Court record has been requisitioned.
3. For the sake of convenience, the revisionist would be referred to as the 'accused' and respondent no.2 as the 'complainant' as per their nomenclature before the Trial Court.
BRIEF FACTS:
4. Briefly stated, the facts relevant for the disposal of the present revision petition are that on the statement of complainantSh. Sunil Kumar Premi, who was working as a Supervisor with Delhi Khadi Village Industry Board (in short 'the board'), a case was registered by the Police of Police Station Bhajanpura, Delhi against the accused. As per complainant, on 20.05.2016, he was on official duty to deliver the legal notice to accused Himanshu Kumar @ Himanshu Kaushik, loanee of the Board. At about 9:30 AM, he reached at K21/38, Gali no.9, Gangotri Vihar, West Ghonda, Delhi for delivery of the legal notice. He served the said notice upon the accused and after receiving the same, the accused, in furtherance of his common intention with his coworker, started beating him. They also snatched his mobile phone.
5. On the basis of the aforesaid statement, an FIR no.385/2016 PS Bhajanpura for offences punishable under Sections 186/332/353/34 was registered against the accused and the investigation was carried PRAVEEN out. During the course of investigation, I.O. recorded statement of KUMAR Digitally signed by witnesses and after completion of the investigation, accused was PRAVEEN KUMAR Date: 2023.02.27 16:07:23 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 2/9 chargesheeted for commission of offences punishable under Sections 186/353/332/34 IPC.
6. The Trial Court record reveals that after being summoned as an accused, Ld. MM heard arguments on charge on 19.09.2022 and ordered framing of charge against the accused for offences punishable under Sections 186/353/332/34 IPC. The said order is under challenge before this Court.
ARGUMENTS:
7. I have heard Sh. S. G. Goswami, Ld. counsel for the accused; Sh. Zenul Abedeen, Ld. Chief Prosecutor for the State; and Sh. Mohit Kumar Sharma, Ld. Counsel for the complainant.
8. Ld. counsel for the accused has contended that the impugned order is against the facts and law and is based on conjectures and surmises. The FIR was lodged in collusion with the police officials. The complainant visited the house of the accused at about 9:15 AM but the official working hours starts at 9:30 AM. Secondly, it is contended that the board had no right to send legal notice to the accused. Ld. MM has passed the impugned order in a mechanical manner without application of mind. Thirdly, it is contended that the ingredients of offences punishable under Sections 186/332/353/34 IPC are not attracted to the present case. It is contended that the complainant was allegedly beaten after the notice was served upon him and, hence, it cannot be said that the public servant was obstructed or hurt or assaulted in discharge or execution of his duty. It PRAVEEN KUMAR is contended that the prosecution has failed to show either any Digitally signed by intention or motive on the part of the accused to commit such PRAVEEN KUMAR Date: 2023.02.27 16:07:34 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 3/9 offences. Fourthly, it is contended that the notice, which was allegedly served, is dated 09.05.2016 while from the documents obtained by the accused through RTI, the alleged notice is dated 09.03.2016. It casts a doubt in the story of the prosecution. Lastly, it is contended that the complainant had no right to serve the alleged notice at the residence of the accused as the amount could have been recovered as an arrears of land revenue in view of the Himanchal Khadi Village Industry Board Act,1966. Ld. counsel for the accused has drawn attention to the various documents obtained by the accused through RTI. In support of his contentions, Ld. counsel for the accused has relied upon the judgment-State V. Lal Singh, Crl. Rev. P. No.425/2009, decided by the Hon'ble High Court of Delhi on 16.05.2012.
9. On the other hand, it is contended by Ld. Chief P. P for the State and Ld. counsel for the complainant that there is no infirmity or illegality in the order passed by the Trial Court. It is contended that the loan was disbursed to the accused but the same was not refunded by him, whereupon steps were taken by the Board to recover the same through complainant. It is contended that documents relied by the accused through RTI cannot be taken into consideration by this Court as only documents annexed with the charge-sheet are to be seen at the stage of framing of charge. It is contended that the complainant is a public servant within the meaning of Section 21 IPC and criminal force was used against him. It is prayed that the revision petition be dismissed.
ANALYSIS AND FINDINGS: PRAVEEN
KUMAR
10. I have gone through the record. Charge-sheet was filed in the Digitally signed by PRAVEEN KUMAR Court on 05.04.2017. The matter was adjourned from time to time and Date: 2023.02.27 16:07:52 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 4/9 ultimately cognizance was taken by the Ld. MM on 15.1.2018. The said order is reproduced herein below:-
"15.01.2018 Today, I am working as Link MM to the court of Ms.Bhawani Sharma, Ld. ACMM, NE District, KKD Courts, Delhi.
Present: Ld. APP for the State.
Accused with counsel.
Submissions heard. Record perused and carefully considered.
I have gone through the Challan/charge sheet filed U/s 173 of the Code of Criminal Procedure, 1973, the statement of witnesses recorded by the IO u/sec. 161 Cr.P.C and the documents being relied upon by the State in support of the case against the accused.
I take cognizance of offence U/s 190(1)(b) Cr.P.C for the offence U/s 186/353/332 IPC.
Documents supplied.
List for consideration for charge for 16.05.2018.
Complainant be also summoned to explore the possibility of settlement for date already fixed.
Sd/ (Aditi Garg) MM/NE/KKD/15.01.2018"
11. The criminal proceedings were initiated against the accused on the basis of statement made by the complainant to the police on 20.5.2016. I have also found a communication dated 28.02.2017 by Sh. R. K. Jajoria, Deputy Director of the Board, addressed to Ld. ACMM which is purported to have been a complaint under Section 195 Cr.P.C. The said communication bears the signatures of the SHO PRAVEEN with date as 28.02.2017 and the same was marked to the IO of this KUMAR case. Digitally signed by PRAVEEN KUMAR Date: 2023.02.27 16:08:06 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 5/9
12. Section 195 (1) of Cr.P.C lays down as under:-
195. Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence-
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause(i) or sub-clause (ii), [except on the complaints in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
(Emphasis mine)
13. A bare perusal of Section 195 Cr.P.C makes it clear that cognizance of offence under Section 186 IPC can only be taken on PRAVEEN KUMAR written complaint of a public servant concerned or of some other Digitally signed by PRAVEEN public servant to whom he is administratively subordinate. It has been KUMAR Date: 2023.02.27 16:08:16 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 6/9 held in catena of judgments that merely if a complaint under Section 195 Cr.P.C is purportedly filed along with charge sheet, that does not fulfill the requirement of law.
14. Though not referred to or relied upon, in judgment-Vasudev Vs. State of Karnataka, 1984 (2) RCR (Criminal) 606, it was held as under:
"4. I find force in each of these contentions. The investigation in the present case by the police was wholly incompetent and the law did not permit the SHO to proceed with same unless he had specifically obtained permission from the Magistrate having power to try such case, or commit the case for trial. Section 155 CrPC in this regard is quite explicit. In fact, Sub- section 2 prohibits the police officer to investigate a non-cognizable case without the permission of the Magistrate concerned. When this is the position of law, the investigation and the finding of the challan in the present case must be struck down.
5. It is noteworthy in this regard that when the trial court admitted the case and directed the issue of summons to the accused, it was specifically mentioned that the challan had been filed and it be registered. It was thus this challan which was being taken cognizance of and proceeded with.
6. Proceedings for offence under Section 186 IPC could have been set into motion if there had been a formal complaint lodged with the court concerned by the public servant who had been obstructed in the discharge of his public duties, or against whom an offence had been committed. Without such complaint, the court could not have taken seisin of the case. In fact, there was an absolute bar in terms of the language used in Section 195 CrPC."
(Emphasis mine) PRAVEEN KUMAR
15. In the present case, apparently cognizance was taken by the Ld. Digitally signed by PRAVEEN KUMAR Date: 2023.02.27 16:08:26 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 7/9 MM on 15.01.2018 on the charge sheet filed by the police. A bare perusal of the aforesaid provision would make it clear that the written complaint under Section 195 Cr.P.C is a sine qua non for prosecuting the accused for offence punishable under Section 186 IPC. It is well settled law that the said written complaint should have been filed before the Court at pre-cognizance stage. The filing of the said written complaint with the charge-sheet would not serve the purpose and the accused cannot be called upon to face trial for offence punishable under Section 186 IPC.
16. Section 186, 353 and 332 IPC are related to distinct offences. The offences under Sections 332 and 353 IPC are cognizable offences while offence under Section 186 IPC is a non-cognizable offence. Though not referred to or relied upon, in judgment-Barappa Vs. State of Karnataka, 1997 (2) Crimes 575 (Kant), it was held that clubbing of other cognizable offences would not be permissible to evade the provisions of Section 195 Cr.P.C.
17. Ld. counsel for the accused has contended that after serving the notice, the duty of the complainant was over and, as such, accused cannot be prosecuted for offences under Section 332/353 IPC. I do not agree with the submissions of Ld. counsel for the accused in this respect. Such a narrow interpretation cannot be accepted. The complainant was voluntarily hurt and the MLC to this effect is also on record. The accused had intentionally used criminal force to deter the complainant from discharging/executing his duty. From the material placed on record, prima facie charge is liable to be framed against the PRAVEEN KUMAR accused for commission of offences punishable under Sections Digitally signed 332/353/34 IPC. Hence, this Court does not find any infirmity or by PRAVEEN KUMAR Date: 2023.02.27 16:08:36 +0530 Crl. Rev. No.158/22 Himanshu Kumar @ Himanshu Kaushik Vs. State & another Page 8/9 illegality in the impugned order to the extent of directing framing of charge in respect of these offences against the accused. The judgment relied upon by Ld. counsel for the accused is not applicable to the facts of the present case.
CONCLUSION:
18. In the facts and circumstances of the case, revision petition is partly allowed to the extent that accused is liable to be tried for commission of offences punishable under Sections 332/353/34 IPC. The order of the Trial Court for framing of charge for offence punishable under Section 186 IPC is set aside. The charge be modified accordingly. Parties are directed to appear before the Trial Court on the date fixed.
19. However, it is hereby made clear that nothing mentioned herein- above shall tantamount to an expression of an opinion on the merits of the case. The Trial Court shall proceed with the matter in accordance with law. Trial Court record along with copy of this judgment be sent back.
20. Revision file be consigned to the Record Room after due compliance. PRAVEEN PRAVEEN KUMAR Digitally signed by KUMAR Date: 2023.02.27 16:08:47 +0530 Announced in open (Praveen Kumar) court today i.e on Principal District & Sessions Judge, 27.02.2023 North East, karkardooma Courts, Delhi.
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