Vraj Pal Singh vs State Of U.P. & Another
2015 Latest Caselaw 1008 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                                           Court No. - 49
 
Reserved on 27.5.2015
 
Delivered on 6.7.2015
 

 
Case :- APPLICATION U/S 482 No. - 13876 of 2015
 

 
Applicant :- Vraj Pal Singh
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Ajay Sengar
 
Counsel for Opposite Party :- Sri Vimlendu Tripathi, A.G.A.
 

 
Hon'ble Pankaj Naqvi,J.

Heard Sri Ajay Sengar, learned counsel for the applicant and Sri Vimlendu Tripathi, learned A.G.A.

This application under Section 482 Cr.P.C, is preferred against an order dated 27.10.2014 passed by Judicial Magistrate, Jalaun at Orai in Case Crime no. 1044 of 2009 (State of U.P. Vs. Raj Kumar and 69 others) under Sections 147, 353, 188 IPC and 7 Criminal Law Amendment Act, 1932 (short ''the Act of 1932), P.S. Kotwali Orai, Jhansi rejecting the discharge under Section 239 Cr.P.C.

Background facts are as under: -

1. An FIR as Case Crime no. 674 of 2009, under Sections 147, 353, 188 IPC and 7 of Act of 1932 came to be registered at P.S. Jalaun by Sri Pahup Singh, Officer-In-charge, P.S. Jalaun against 70 persons including the applicant on 29.9.2009 alleging that while the informant along with his fellow constables was assigned the duty of maintaining law and order during "Kshatriya Mahasabha Programme" an information was received that 60-70 persons led by one Surendra Singh of Gwalior were proceeding towards the prohibited zone, where Section 144 CrPC was clamped. On receiving the aforesaid information, the informant along with constables, reached the spot to find that 60-70 persons were carrying two dandas each with a placard bearing the writing "Jai Sriram, Maharana Pratap Amar Rahen, Dussehra Milan Samaroh, Akhil Bhartiya Kshatriya Mahasabha" whereas the other danda had an orange flag and all were shouting the slogans "Police Prashashan Murdabad; Jis Kshatriya Ka Khoon Na Khaula, Woh Khoon Nahin Woh Pani Hai; Karyakram Wahin Hoker Rahega". It was further alleged that Ram Sanehi Giri, A.S.I, challaned / arrested the aforesaid persons under Sections 151/107 & 116 CrPC. On a pointed query made by the informant from the processionists as to whether they have prior permission to take out the procession, they failed to furnish any evidence. When they were informed that prohibitory orders under Section 144 Cr.P.C, have been passed, they defiantly said that they would continue with the rally/ procession, which they did. Thus causing inconvenience to the passersby creating traffic jams. After investigation, a charge sheet dated 9.10.2009 was submitted against the applicant and 69 other persons by Ram Sewak Yadav, S.I. of the P.S. Jalaun, District Jalaun before the court concerned on 1.12.2009 under Sections 147, 353, 188 IPC and 7 of Act of 1932, and on the said date, the learned Magistrate took cognizance of the said offences and directed the issuance of the process against the charge sheeted accused persons including the applicant.Thereafter, the applicant claimed discharge on the ground that on the materials contained in the police report, no offence, whatsoever, was made out, which was dismissed by the impugned order dated 27.10.2014.

2. The first contention urged on behalf of the applicant is that under sub-section (2) of Section 7 of the Act of 1932, cognizance of an offence punishable under Section 7 thereof is barred, except upon a report in writing made by a police officer not below the rank of Officer-In-Charge of a police station. But, the police officer, who submitted the charge sheet was one Ram Sewak Yadav, S.I. of the P.S. concerned, who was not an Officer In-charge, thus no cognizance could be taken on a charge sheet filed by an incompetent person. The second contention was that considering the nature of the allegations made in the FIR/ police report, prosecution for an offence under Section 188 IPC was barred in view of the embargo laid under Section 195 (1) CrPC, i.e. no Court shall take cognizance except on a complaint in writing of the public servant concerned and as other offences, i.e. Sections 147 and 353 IPC are fall out of principal offence, i.e. Section 188 IPC, thus they too cannot be proceeded with.

3. Repudiating the aforesaid submissions, learned A.G.A, submitted that in view of the very definition of the word "officer In-charge" as contained in Section 2(o) of the CrPc, the S.I, too in certain contingencies was competent to lay a police report/ charge sheet in respect of an offence under Section 7 of the Act of 1932. He submitted in all fairness, that in so far prosecution under Section 188 IPC is concerned, same would be barred in view of the prohibition contained in Section 195(1) CrPC, but further contended that in so far Section 147/353 IPC are concerned, same being functionally and qualitatively different from an offence under Section 188 IPC, prosecution of the applicant in respect of said offences, i.e. Sections 147/ 353 IPC would not be barred.

4. Section 7 of the Act of 1932 is quoted hereinbelow:-

"Section-7--Molesting a person to prejudice of employment or business.

(1)Whoever--

a.with intent to cause any person to abstain from doing or to do any act, which such person has a right to do or to abstain from doing, obstructs or uses violence to or intimidates such person or any member of his family or person in his employ, or loiters at or near a place where such person or member or employed person resides or works or carries on business or happens to be, or persistently follows him from place to place, or interferes with any property owned or used by him or deprives him of or hinders him in the use thereof, or

b.loiters or does any similar act at or near the place where a person carries on business, in such a way and with intent that any person may thereby be deterred from entering or approaching or dealing at such place, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Explanation: - Encouragement of indigenous industries or advocacy of temperance, without the commission of any of the acts prohibited by this section is not an offence under this section.

(2) No Court shall take cognizance of an offence punishable under this section except upon a report in writing of facts which constitute such offence made by a police-officer not below the rank of officer in charge of a police-station."

5. A perusal of sub-section (2) of the aforesaid provision would manifest that it prohibits the Court from taking cognizance of an offence except upon a report made by a police officer not below the rank of "officer-in-charge" of a police station. The "officer-in-charge" of a police station is defined in Section 2(o) of the Code, as under:

Section 2(o): "Officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when, the State Government so directs, any other police officer so present"

6. A perusal of the aforesaid definitional clause would indicate that it is inclusive, as it provides that where the officer-in-charge, is absent or unable from illness or other cause to perform his duties, the police officer present at the station house, who is next in rank to such officer and is above the rank of constable or when the State Government so directs any other police officer so present would be the "officer-in-charge" of the police station.

7. A perusal of the charge-sheet (Annexure-6) indicates that the same has been laid by S.I. Ram Sewak Yadav of P.S. Jalaun. Whether S.I. Ram Sewak Yadav, was the officer-in-charge of the police station or not is an issue which can only be decided after evidence is adduced during trial. It is well settled in law that a plea of discharge, which is subject to evidence, cannot be raised at the stage of discharge. Thus the first plea of the applicant stands rejected.

8. Coming to the second submission, Section 147 IPC relates to "punishment for rioting", defined in Section 146 of the Code, i.e. whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of offence of rioting. ''Unlawful assembly' is defined in Section 141 of the Code to mean an assembly of 5 or more persons, if the common object of the persons composing that assembly is covered by either of the 4 clauses specified therein.

9. The following are the essential ingredients of Section 188 IPC:

"(i) That there must be an order promulgated by a public servant;

(ii) That the public servant must have been lawfully ordered to promulgate such order;

(iii) That a person having knowledge of such order or directed by such order (a) to abstain from certain act, or (b) to take certain order with certain property in his possession or under his management, has disobeyed such direction.

(iv) That such disobedience causes or tends to cause (a) obstruction, annoyance or injury or risk of it, to any person lawfully employed, or (b) danger to human life, health or safety, (iii) a riot or affray."

10. The following are the essential ingredients for an offence under Section 353 of the Code:

"(i) There must be assault or use of criminal force;

(ii) Such assault or use of criminal force must have been made on a public servant; and

(iii) Assault / use of criminal force must have been of a public servant--(a) while he was acting in the execution of his duty; or (b) with intent to prevent or deter him from discharging his duty; or (c) in consequence of anything done or attempted to be done by him in discharge of his duty."

11. A perusal of the aforesaid offences, i.e. 147/ 353/ 188 IPC would manifest that they are functionally and qualitatively different from each other.

12. The Apex Court in the case of Durgacharan Naik and others Vs. State of Orissa, AIR (1966) 1775, had an occasion to examine as to whether Sections 186 and 353 IPC are two distinct offences or not. In the said case, Durga Charan and Netrananda were charged for offences under Sections 143/402 and 353 IPC, whereas other accused persons were only charged under Sections 143/402 IPC. The Sessions Judge acquitted the appellants, i.e. Durga Charan Naik and Netrananda of all the charges, but on an appeal preferred by the State, the Orissa High Court set aside the order of acquittal with regard to 4 appellants but convicted them under Section 353 IPC as it did not find the evidence to be satisfactory to convict the appellants under Sections 143/402 IPC and in so far a charge under Section 186 IPC was concerned, the High Court took the view that the prosecution for the said offence was barred under Section 195 of the Code. Thus the challenge before the Apex Court was to the extent of the conviction, recorded under Section 353 of the Code. Against the aforesaid backdrop the Apex Court observed in paragraph 5 as under: -

"It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 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 s. 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 s. 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well-established that s. 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. In Satis Chandra Chakravarti v. Ram Dayal De it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under s. 211, Indian Penal Code, which is an offence against public justice, and the other an offence under S.499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court (1) 24 C.W.N. 982 for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non-compoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the Court under S. 195 Cr.P.C., while in the other, cognizance can be taken of the offence on the complaint of the person defamed. It is pointed out in the Full Bench case that where upon the facts the commission of several offense is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of Ss.195 to 199 of the Cr.P.C."

. Similarly in the same judgment, the Apex Court also held in paragraph-8 as under: -

"We have expressed the view that S.195 Cr.P.C. does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of S.195 cannot be evaded by resorting to devices or camouflage. For instance, 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, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the I.P.C., though 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. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under S.353 I.P.C. was by way of evasion of the requirements of S.195, Cr.P.C. But we are satisfied that there is no substance in this argument and there is no camouflage or evasion in the present case."

13. The above judgment of the Apex Court leaves no room for doubt that if two offences arising out of same transaction are qualitatively and functionally different, then merely because a prosecution of one offence is barred by Section 195(1) of the Code would not mean that the other offence cannot be proceeded with. However, a caveat has been attached that Section 195 of the Code cannot be circumvented by resorting to camouflage, i.e. provisions of Section cannot be evaded by charging a person with an offence, to which that Section does not apply but then convicting him of an offence to which it does on the ground that the latter offence is a minor one of the same character or by describing the offence as one punishable under some other Section of the Penal Code.

14. The judgment in the case of Durga Charan Naik (supra), came to be followed in C.Muniappan and another Vs. State of Tamilnadu, 2010(9) SCC 567, wherein the Apex Court held in paragraphs 35 and 36 as under: -

"35. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial court to frame a charge under Section 188 IPC. However, we do not agree with the further submission that absence of a complaint under Section 195 CrPC falsifies the genesis of the prosecution case and is fatal to the entire prosecution case.

36. There is ample evidence on record to show that there was a prohibitory order which had been issued by the competent officer one day before it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no "Rasta Roko Andolan". Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attach and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned."

15. The pith and substance of the aforesaid discussion is that in cases, where a single transaction gives rise to multiple offences and one being qualitatively distinct from other, even though there may be some semblance of similarity, then the mere fact that prosecution of one offence(s) is barred by Section 195(1) CrPC, as the proceedings did not originate on a criminal complaint, the prosecution of the remaining offences could not be faulted.

16. Applying the aforesaid dicta on the facts of the present case, the Court finds that the prosecution of the applicant under Section 188 IPC was clearly barred under Section 195(1) CrPC as having originated on FIR and not a criminal complaint. However, prosecution of the applicant in so far other offences, i.e. 147, 353 IPC and 7 of the Act of 1932 is concerned, no illegality could be attributed to the same.

Resultantly, the application succeeds and is allowed in part. The application for discharge is allowed to the extent, it relates to Section 188 IPC. The order dated 27.10.2014 is modified accordingly. However, the proceedings would go on in so far other offences are concerned, in accordance with law. No order as to costs.

Order Date :- 6.7.2015

N.S.Rathour