Himachal Pradesh High Court
Date Of Decision: 02.08.2024 vs Ashwani Kumar on 2 August, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:7086
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No.63 of 2020
Date of Decision: 02.08.2024
__________________________________________________________________________
.
State of Himachal Pradesh .........Appellant
Versus
Ashwani Kumar .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Rajan Kahol, Additional Advocate General.
For the Respondent:
Mr. Tara Singh Chauhan, Advocate.
_________________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal appeal filed under Section 378(3) of the
Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.') lays
challenge to judgment dated 11.09.2019 passed by learned Session Judge,
Hamirpur, District Hamirpur, Himachal Pradesh, in Criminal Appeal No.02
of 2018, whereby judgment of conviction and order of sentence dated
01.01.2018/03.01.2018 passed by the learned Judicial Magistrate First
Class, Court No.IV, Hamirpur, District Hamirpur, Himachal Pradesh, in
case registration No.21 of 2016, came to be set aside.
2. Precisely the facts of the case as emerge from the record are
that on 04.04.2015, a nakal rapat No.8 of Daily Station diary of SV & ACB,
Hamirpur, was received at Police Station Hamirpur, from the office of
Additional Superintendent of Police, SV & ACB, Hamirpur, Himachal
Pradesh, bearing No.SV/ACB/Hamirpur-627 dated 22.04.2015, alleging
2024:HHC:7086
therein that that petitioner-Ashwani Kumar (hereinafter referred to as
'accused') extended threats to the Government officials while they were
.
discharging their official duties.
3. It came to be averred in the complaint that a criminal case is
pending against accused Ashwani Kumar under Sections 7, 13(1) read with
Section 13(2) of Prevention of Corruption Act, 1988, in the Court of learned
District and Sessions Judge, Hamirpur and on the date of alleged incident,
Inspector Sohan Lal and Mr. Anupam Kumar, SDM, Dodra Qawar, were
present in Court to depose. As soon as aforesaid witnesses got free after
deposing in the Court and were standing outside the Main Gate along with
Mr. N.S. Chauhan, Public Prosecutor, accused Ashwani Kumar, who at that
relevant time was Sub-Inspector came on the spot and asked Mr. N.S.
Chauhan about the cutting made during the trial. Mr. N.S. Chauhan
informed accused that it was only spelling mistake, however, accused
allegedly threatened above named Public Prosecutor with the words, "meri
naukari ko kuch bhi hoga parantu mai aapki naukrion ko bhi nahi
chodunga bhale hi mujhe high court jana pade". As per complaint,
accused while staring at persons named hereinabove, also threatened that,
"bhale hi mujhe kisi bhi seema tak karna pade". Though, Mr. Sohan
Lal tried to pacify the accused but accused went away from the spot staring
at all the persons standing there.
2024:HHC:7086
4. Apprehending threat and danger to their life, Mr. Sohan Lal
made a complaint vide rapat No.8A at 02:00 p.m. i.e. Ex.PW1/B.
.
Complainant alleged that he told accused Ashwani Kumar that he should
talk to his lawyer and he is free to go anywhere. He also alleged that
accused Ashwani Kumar was told that he is accused in this case, while he
himself is Investigating Officer and Mr. Anupam Kumar is the main
witness, as such, he should not fight with them.
5. On the basis of aforesaid complaint, Police after having
conducted necessary investigation, presented Kallandra under Section 186
and 189 IPC against accused in the competent Court of law Ex.PW2/A.
Necessary permission to investigate the case was sought from the Court of
learned Chief Judicial Magistrate, which was granted vide order Ex.PW7/A.
Court below after having recorded the statement of witnesses held accused
guilty of his having committed offence punishable under 189 IPC and
accordingly, convicted and sentenced him to undergo simple imprisonment
for a period of three months and pay fine of Rs.5000/-.
6. Being aggrieved and dissatisfied with the aforesaid judgment of
conviction and order of sentence recorded by learned trial Court, accused
preferred an appeal in the Court of learned Sessions Judge, Hamirpur,
which came to be allowed vide judgment dated 11.09.2019. In the aforesaid
background, appellant/State has approached this Court in the instant
2024:HHC:7086
proceedings, praying therein to set aside the aforesaid judgment of
acquittal recorded by learned Sessions Judge and restore the judgment of
.
conviction and order of sentence recorded by learned trial Court.
7. Precisely the grouse of the appellant/State, as has been
highlighted in the grounds of appeal and further canvassed by Mr. Rajan
Kahol, learned Additional Advocate General is that Court below while
passing impugned judgment has failed to appreciate the evidence in its
right perspective. Mr. Kahol submitted that learned First Appellate Court
wrongly doubted the presence of Inspector Sohan Lal on the spot. He also
referred to the statement made by PW-4 to PW-6 to demonstrate that on the
date of alleged incident, complainant-Inspector Sohan Lal was very much
present in Court. He also submitted that statement made by aforesaid
witnesses further reveals that accused while influencing the Government
officials, also extended them threats, as such, learned trial Court had
rightly held him guilty of his having committed offence punishable under
Section 189 IPC. He further submitted that learned First Appellate Court
misconstrued the expression used by accused that "in case he lost his job,
he would not leave any person, even if he has to go to the High Court" and
wrongly arrived at a conclusion that aforesaid statement is not an offence.
He submitted that since accused had threatened the public servants by
warning them that they would lose their job, he was rightly convicted under
2024:HHC:7086
aforesaid provision of law by the learned trial Court. Mr. Kahol submitted
that learned Appellate Court wrongly arrived at a conclusion that no case
.
much less under Section 189 IPC is made out, rather, very conduct of
petitioner, which is apparent from the language used by him that he would
also ensure that jobs of the officers named in the complaint are also lost,
clearly reveals that officers named hereinabove were threatened. He
submitted that since very motive and intent of the accused was to deter the
public servants from discharging their public duty, no illegality can be said
to have been committed by the learned trial Court while holding
petitioner/accused guilty of his having committed offence punishable under
Section 189 IPC. Lastly, Mr. Kahol submitted that DDR No.8-A dated
22.04.2015 Ex.PW1/B was entered at Police Station of State Vigilance and
Anti Corruption Bureau, Hamirpur, District Hamipur, Himachal Pradesh,
at the instance of Inspector Sohan Lal i.e. PW-4, which fact was duly
proved by PW-4 during his evidence in the learned trial Court.
8. To the contrary, Mr. Tara Singh Chauhan, learned counsel
representing the respondent, while supporting the impugned judgment of
acquittal recorded by learned Sessions Judge, vehemently argued that that
there is no illegality and infirmity, rather same is based upon proper
appreciation of facts and law. While making this Court peruse statements
made by the material prosecution witnesses, Mr. Chauhan submitted that
2024:HHC:7086
since it has specifically come in the evidence that complainant-Inspector
Sohan Lal was not present on the spot at the time of alleged incident and
.
he had not come to the Court on account of his being busy for retirement
preparations, learned First Appellate Court rightly set aside the judgment of
conviction and order of sentence recorded by the learned trial Court, which
was otherwise not based upon proper appreciation of evidence and law.
9. I have heard the parties and gone through the record.
10. Having scanned evidence adduced on record, be it
documentary or oral, this Court finds that complaint, as detailed
hereinabove, was lodged a the behest of Inspector Sohan Lal, however, his
presence on the spot of occurrence, at the relevant time is highly doubtful.
Documentary evidence tendered on record itself suggest that on the alleged
date of incident, complainant-Inspector Sohan Lal was not present, rather
on his behalf, exemption was sought from the Court on the pretext that
that he is busy in making preparation for his retirement. Factum with
regard to absence of the aforesaid complainant from the trial on the date of
alleged incident stands duly proved on record with the placing of order
dated 22.04.2015 passed by learned Special Judge, Hamirpur, on record in
case No.01/2014, registered against accused Ashwani Kumar under
Sections 7, 13(1) read with Section 13(2) of Prevention of Corruption Act,
1988, i.e. Ex.DA.
2024:HHC:7086
11. As per case of prosecution, Inspector Sohan Lal, Mr. Anupam
Kumar and Mr. N.S. Chauhan, had come out of the Court after deposing,
.
which fact otherwise stand mentioned in daily diary Ex.PW2/A. Though,
complainant-Mr. Sohan Lal deposed on oath that when he after deposing in
the case titled as State Vs. Ashwani Kumar, Case No.4 of 2013 and was
talking to Mr. N.S. Chauhan, Deputy District Attorney and Mr. Anupam
Kumar, S.D.M. Dodra Kawar, accused came on the spot and extended
threats, however, afore version put forth by him is wholly incorrect for the
reason that on the date of alleged incident, complainant-Mr. Sohan Lal had
not deposed, rather on his behalf, exemption was sought by the Law
Officer.
12. Mr. Anupam Kumar deposed that after deposing in the Court,
he along with Deputy D.A. N.S. Chauhan and Inspector Sohan Lal came on
the spot and started talking near the Main Gate, but in the meanwhile,
accused started extending threats, however, version put forth by aforesaid
witnesses stand falsified on account of order dated 22.04.2015 Ex.DA,
which suggest that on that day, only statement of Mr. Anupam Kumar was
recorded and SI Bachan Singh had prayed for an adjournment which was
allowed. On the date of alleged incident, Inspector Sohan Lal was not
present despite service, as such, learned Public Prosecutor had made a
2024:HHC:7086
request that since Inspector Sohan Lal is nearing his retirement, he could
not appear in the Court.
.
13. Since very factum of presence of complainant-Inspector Sohan
Lal on the spot, on the date of alleged incident is doubtful, learned Session
Judge while setting aside the judgment of conviction and order of sentence
recorded by Court below rightly held that order sheet carries irrebutable
presumption of correctness and it has to be taken as correct that Sohan Lal
had not appeared despite service and a request was made on his behalf.
Since perusal of order dated 22.04.2015 clearly reveals that on the date of
alleged incident, Inspector Sohan Lal was not present and he was busy in
making preparation of retirement, version put forth by him in the complaint
that on the date of alleged incident accused Ashwani Kumar had extended
threats to him as well as other officials, could not have been accepted by
the Court, especially when no explanation ever came to be rendered on
record by aforesaid complainant with regard to his presence on the spot, on
the alleged date of incident.
14. Most importantly, Inspector Sohan Lal categorically admitted
that his statement was not recorded on the date of alleged incident,
however, he feigned ignorance that request was made by Public Prosecutor
to the Court for his exemption on account of his impending retirement.
Though, this witness in his cross-examination denied that he was not
2024:HHC:7086
present in the Court Complex, but definitely he failed to explain that if he
had not come present for deposing in the trial, how and under what
.
circumstances he became present on the spot of occurrence, where
allegedly petitioner/accused extended threats. PW5-Anupam Kumar in his
cross-examination stated that he was not remembering whether the
statement of some other person besides him was recorded in the Court, but
Sohan Lal had met him in the Court after his statement was recorded.
Similarly PW6-Mr. N.S. Chauhan in his cross-examination stated that
Inspector Sohan Lal and S.D.M. Anupam were present with him. While
denying that Inspector Sohan Lal had not appeared in the Court nor was he
accompanying this witness, this witness deposed that he was not aware
that he had made a request in the Court that Inspector Sohan Lal was
unable to appear due to his ill-health. Though, version put forth by
aforesaid witnesses suggests that at the time of alleged incident,
complainant-Sohan Lal was present on the spot, but having perused order
dated 22.04.2015 passed by learned Special Judge in Case No.01/2014,
learned Session Judge rightly disbelieved their afore version.
15. In aforesaid session trial, adjournment was sought by SI
Bachan Singh on account of absence of Inspector Sohan Lal, who at that
relevant time was unable to come present, on account of his being busy in
retirement preparations. Since very presence of complainant-Inspector
2024:HHC:7086
Sohan Lal is doubtful, factum of extending threats, if any, to the accused
also becomes doubtful.
.
16. Though, at this stage, learned Additional Advocate General
while placing heavy reliance on the statement made by PW5 and PW6 i.e.
Mr. Anupam Kumar and Mr. N.S. Chauhan, attempted to argue that
though complainant-Inspector Sohan Lal may not be available to depose
before the Court in session trial, as detailed hereinabove, but admittedly he
was present on the spot, while threats were extended to him as well as
other officials, namely Mr. Anupam Kumar and Mr. N.S. Chauhan, if it is
so, there was no occasion for learned Session Judge to reverse the
judgment recorded by the learned trial Court. However, this Court is not
impressed with the aforesaid submission made by Mr. Rajan Kahol, learned
Additional Advocate General for the reason that once factum with regard to
absence of Inspector Sohan Lal in the Court premises stands recorded in
order dated 22.04.2015 passed by learned Special Judge, coupled with the
fact that incident happened immediately after deposition, if any, made by
PW5 and PW6 and the Public Prosecutor had sought adjournment on the
ground that Inspector Sohan Lal has not been able to come present in the
Court on account of his having busy in retirement preparation, it is not
understood that how Inspector Sohan lal became available at the spot, that
too immediately after completion of evidence of PW5 and PW6.
2024:HHC:7086
17. Bare perusal of Section 189 IPC suggests that whoever holds
out any threat of injury to any public servant, or to any person in whom he
.
believes that public servant to be interested, for the purpose of inducing
that public servant to do any act, or to forbear or delay to do any act,
connected with the exercise of the public functions of 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. To invoke aforesaid
provision of law, prosecution is under obligation to prove that accused held
out threat of injury. The word "injury" has been defined in Section 44 of
IPC, which suggest that to make any harm whatever illegal caused to any
person, in body, mind, reputation or property, would amount to injury.
Similarly, word "illegal" has been defined in Section 43, which means to do
anything which is prohibited by law or which furnishes ground for civil
action. However, in the instant case, expression, if any, used by accused
that "meri naukari ko kuch bhi hoga parantu mai aapki naukrion ko
bhi nahi chodunga bhale hi mujhe high court jana pade" cannot be
construed to be threat of injury to public servant, rather, aforesaid
expression, if any, used by the accused suggest that he intended to say that
in case he loses his job on account of allegations levelled by persons, to
whom he allegedly extended threats, he would not mind going to the higher
Court, that could only by way of taking legal recourse.
2024:HHC:7086
18. Similarly, another expression allegedly used by accused that
"bhale hi mujhe kisi bhi seema tak karna pade" also cannot be
.
construed as a threat of injury to a public servant, rather, words or
expressions, as reproduced hereinabove, used by the petitioner, if read in
conjunction, clearly suggests that very intention of accused at that relevant
time was to put complainant as well as other officers to the caveat that in
case he loses his job, he would approach the Hon'ble High Court, if it is so,
no case much less under Section 189 IPC otherwise can be said to have
been made out against the accused.
19. Needless to say, no person is prohibited by any law to take
recourse of law for protection of his valuable rights. There is nothing in the
statements of PW5 and PW6 that threat, if any, was made by accused,
thereby, compelling public servants to do any act or to forebear or to delay
to do any act. By the time, threat, if any, was made by the accused, witness
Anupam Kumar had already deposed, though, Inspector Sohan Lal was yet
to depose, but accused never persuaded or dissuaded him to depose or not
to depose.
20. Necessary ingredient of Section 189 IPC that threat should
have been made to compel the public servant to do, forbear or to delay any
act has not been satisfied in the present case, as such, learned Session
Judge rightly set aside the judgment of conviction and order of sentence
2024:HHC:7086
recorded by learned trial Court. Finding returned by learned trial Court
that accused wanted to instill a fear of injury to public servant does not
.
appear to be based upon the proper appreciation of evidence as well as law.
Complaint in the case at hand was never made by Mr. N.S. Chauhan, who
was Public Prosecutor, rather, complaint was allegedly made by Inspector
Sohan Lal. Moreover, at no point of time, accused asked any of the person,
to whom he allegedly extended threats or persuaded them to not to depose
against him, rather, he warned them that in case anything wrong happens
to his job, he would also not spare them and in that regard, he would not
mind approaching the High Court.
21. In this regard, reliance is placed upon judgment dated
19.06.2024 passed by this Court in case titled as Sita Ram Sharma Vs.
State of H.P. & Anr., in Cr.MMO No.363 of 2023, which reads as under:
"16. 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, which
provides for conviction of a person, who 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 under
Sections 177 and 179 of the Act. Making certain remarks, if any, on Facebook
may not be sufficient to conclude obstruction, if any, caused by the petitioner.
Otherwise also, import of the remarks allegedly made by the petitioner on
Facebook, as have taken note hereinabove, nowhere indicates that an attempt
2024:HHC:7086
was made by the petitioner to dissuade the Police officials from doing their
duty, rather by making post, petitioner attempted to state that he is being
unnecessarily harassed.
.
17. Interestingly in the case at hand, Police official concerned challaned
the petitioner under Sections 177 and 179 of Motor Vehicles Act, but no action,
if any, ever came to be taken against him for his having not produced the
documents of the vehicle. 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. Since, there is nothing on record
to suggest that obstruction, if any, was ever caused by the petitioner while
respondents No.2 was challaning him under Sections 177 and 179 of the
Motor Vehicles Act, 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 a trial, if permitted to continue, are very remote and
bleak. If it is so, no fruitful purpose would be served by permitting the trial to
continue, rather continuance of trial would amount to sheer abuse of process
of law.
18. Next question, which arises for consideration is that whether act of the
petitioner making video or going life on Facebook would amount to voluntarily
causing obstruction or not?
19. Once there is no allegation that accused used a 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 Sections 177 and 179 of the Motor Vehicles 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
2024:HHC:7086
police officials from challaning him or impounding his vehicle. Rather, in the
case at hand, police concerned challaned the petitioner under Sections 177
and 179 of Motor Vehicles Act.
.
20. Precise allegation in the case at hand against the petitioner is that he
went live on Facebook and made certain comments, but certainly, such act, if
any, of him, cannot be considered obstruction, if any, caused by the petitioner.
21. 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 driving the vehicle without wearing
seat belt, challaned him under Section 177 of Motor Vehicles Act, 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.
22. Reliance is placed upon judgment passed by this Court in Surinder
Singh Chauhan v. State of Himachal Pradesh,2002 1 CurLJ 332."
22. Similarly, this Court finds that there is no evidence worth
credence to connect accused with the offence, if any, allegedly committed
under Section 186 IPC, which talks about obstruction, if any, caused to the
public servant in discharge of his public duty. As has been taken note
hereinabove, at no point of time, accused asked complainant as well as
other officers not to do their duty, rather, he stated that in case he loses his
job, he would not mind going to the higher Court, which statement of him,
2024:HHC:7086
if any made, by no stretch of imagination can be said to be obstruction to
any public servant in discharge of his duty.
.
23. Leaving everything aside, once presence of complainant-
Inspector Sohan Lal, at whose behest, prosecution came to be lodged
against petitioner is doubtful, version put forth by him in the complaint,
otherwise could not have been taken as a gospel truth by the trial Court
while holding petitioner/accused guilty of his having committed offence
punishable under Section 189 IPC, rather, it ought to have given
precedence to order dated 22.04.2015 Ex.DA, recorded by learned Special
Judge, in a trial, where complainant-Inspector Sohan Lal was shown to be
absent on the given date.
24. Having taken note of absence of Inspector Sohan Lal on the
relevant date, Court concerned specifically adjourned the matter to
22.05.2015 for his examination. Since entire incident allegedly happened
outside the Court room, coupled with the fact that factum with regard to
absence of Inspector Sohan Lal stood duly recorded in the order dated
22.04.2015, version put forth by complainant-Inspector Sohan Lal that
incident allegedly happened in his presence, could not have been made
basis by the learned trial Court while holding petitioner/accused guilty of
his having committed offence punishable under Section 189 of IPC, rather,
same being doubtful, ought to have been rejected at its threshold.
2024:HHC:7086
25. Consequently, in view of detailed discussion made hereinabove,
as well as law taken into consideration, this Court finds no illegality and
.
infirmity in the impugned judgment passed by the learned Session Judge,
as such, same is upheld. Accordingly, present appeal is dismissed. Pending
applications, if any, also stand disposed of.
(Sandeep Sharma),
Judge
August 02, 2024
(Rajeev Raturi)
