Punjab-Haryana High Court
Meena @ Gorkha & Ors vs State Of Punjab on 4 April, 2024
Neutral Citation No:=2024:PHHC:045822
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRM-M-14758-2014
Reserved on: 01.04.2024
Pronounced on: 04.04.2024
2024:PHHC: 045822
MEENA @ GORKHA AND OTHERS
. . . . Petitioners
Vs.
STATE OF PUNJAB
. . . . Respondent
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Present: - Mr. Damanjit Singh Sandhu, Advocate,
for the petitioners.
Mr. Sahil R. Bakshi, AAG, Punjab.
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DEEPAK GUPTA, J.
By way of this petition filed under Section 482 CrPC,
petitioners have prayed to set aside impugned order dated 18.03.2014
(Annexure P2), passed by ld. Additional Sessions Judge, Ludhiana, in not
allowing the revision filed by them against the order dated 05.12.2013
(Annexure P1) passed by ld. JMIC, Ludhiana, for setting aside the charge
framed against the petitioners under Section 353 read with Section 34 IPC
(wrongly mentioned as Section 363 read with Section 34 IPC).
2.1 Perusal of the paper-book would reveal that FIR No.53 dated
06.06.2013 was registered against the petitioners at Police Station Haibowal,
Ludhiana under Sections 353 and 186 read with Section 34 IPC, on the
complaint of Rajinder Sharma, Assistant Town Planner, as per which on
06.06.2013, he along with police officials namely lady Constables Kiranjit
Kaur and Asha Rani were performing their duty as public servant in the area
of Haibowal Kalan, when the accused (petitioners herein) obstructed them in
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performing their official duties. Not only this, the accused- petitioners also
used criminal force against Rajinder Sharma and others in furtherance of
their common intention, so as to obstruct them from performing their official
duty.
2.2 Necessary investigation was conducted and after completion
thereof, final report under Section 173 CrPC was filed. Ld. Magistrate vide
his order dated 05.12.2013 (Annexure P1) charge sheeted the accused-
petitioners under Section 186/353/34 IPC. Revision was filed against that
order. Ld. Additional Sessions Judge, Ludhiana vide impugned order dated
18.03.2014, held that that accused could not be prosecuted under Section
186/34 IPC in view of the bar contained in Section 195 CrPC. However, the
Revisional Court refused to set aside the charge under Section 353/34 IPC,
by holding that ingredients to constitute said offence were distinct from the
offence under Section 186 IPC and that there was no requirement to comply
with the provisions of Section 195 CrPC, for prosecuting the accused under
Section 353/34 IPC.
3.1 Assailing the aforesaid order of the Revisional Court, this
petition is filed. It is contended by ld. counsel that offence under Section 353
IPC is merely an aggravated form of the offence under Section 186 IPC and
therefore, ld. Magistrate could not have taken cognizance of any of the
offences in view of the Bar created under Section 195 CrPC, as per which it
is only the complaint, which could have been lodged by the concerned public
servant.
3.2 Ld. counsel has referred to a decision of this Court rendered in
Bhagat Ram Vs. State of Punjab, 1991(1) RCR (Criminal) 192. Ld. counsel
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further contends that the ratio of the judgments tilted as Durgacharan Naik
and others Vs. State of Orissa, AIR 1966 SC 1775 and Satish Chandra
Chakravarti Vs. Ram Dayal De (24 Cal WN 982), relied upon by the
Revisional Court, is not applicable to the facts of the present case. He prayed
for setting aside the impugned order; and to set aside the charge framed
against them even under Section 353/34 IPC (wrongly mentioned as Section
363 read with Section 34 IPC).
4. Ld. State counsel strongly opposed the petition by submitting
that ingredients to constitute the offence under Section 186 and 353 IPC are
clearly distinct; and therefore, Revisional Court rightly held that there was no
requirement to make compliance of Section 195 CrPC for prosecuting the
accused for the offence under Section 353 IPC.
5. I have considered submissions of both the sides and have
appraised the paper-book.
6. Section 186 IPC reads as under:
"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."
7. Thus, to make out an offence under this Section 186 IPC,
following essentials are necessary-
i) Voluntary obstruction to a public servant.
ii) Such obstruction must be in the discharge of public functions of
such public servant.
8. Section 353 IPC reads as under:
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"Assault or criminal force to deter public servant from discharge of his
duty -Whoever assaults or uses criminal force to any person being a public
servant in the execution of his duty as such public servant, or with intent to
prevent or deter that person from discharging his duty as such public servant,
or in consequence of anything done or attempted to be done by such person to
the lawful discharge of his duty as such public servant, shall be punished with
imprisonment of either description for a term which may extend to two years,
or with fine, or with both."
9. Thus, to make out an offence under this Section 353 IPC,
following essentials are necessary -
1. That the accused assaulted, or used criminal force against the victim.
2. that the person assaulted or against whom criminal force was used, was a
public servant.
3. That when the accused assaulted or used criminal force,
a. the victim was acting, in the execution of his duty as such
public servant; or
b. such assault, etc., was committed with intent to prevent or deter
the public servant from discharging his duty, as such; or
c. such assault was committed in consequence of something done,
or attempted to be done, by such public servant in the lawful
discharge of his duty.
10. Section 195(1) CrPC reads as under: -
"195. Prosecution for contempt of lawful authority of public servants, 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, or 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;"
11. Perusal of the aforesaid provisions would clearly make out that
ingredients of the two offences i.e. under Sections 186 and 356 IPC are quite
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distinct. Though, the Court cannot take cognizance of an offence committed
under Section 186 IPC without there being a complaint made by the
concerned public servant as per Section 195 CrPC, but there is no such
requirement for offence under Section 353 CrPC.
12. Explaining the distinction between Section 186 & 353 IPC and
the requirement for compliance of Section 195 CrPC for offence under
Section 186 IPC, Hon'ble Supreme Court has held in the case of
Durgacharan Naik and others (supra) as under: -
"We pass on to consider the next contention of the appellants that the
conviction of the appellants under S.353, Indian Penal Code is illegal because
there is a contravention of s.195(1) of the Criminal Procedure Code which
requires a complaint in writing by the process server or the A.S.I. It was
submitted that the charge under s. 353, Indian Penal Code is based upon the
same facts as the charge under s. 186, Indian Penal Code and no cognizance
could be taken of the offence under S. 186, Indian Penal Code unless there was
a complaint in writing as required by s. 195(1) of the Criminal Procedure Code.
It was argued that the conviction under s. 353, Indian Penal Code is
tantamount, in the circumstances of this case, to a circumvention of the
requirement of s. 195(1) of the Criminal Procedure Code and the conviction of
the appellants under S. 353, Indian Penal Code by the High Court was,
therefore, vitiated in law.
We are unable to accept this argument as correct. 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
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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."
[Bold portion emphasized by this court]
13. The legal position as enunciated by Hon'ble Supreme Court as
above would make it quite clear that the ingredients of the two offences i.e.
under Sections 186 and 356 IPC are quite distinct, inasmuch as Section 353
IPC is a cognizable offence, whereas Section 186 IPC is not so. Section 186
IPC is applicable, where accused voluntarily obstructs the public servant in
discharge of his public functions; whereas for an offence under Section 353
IPC, ingredients of assault or use of criminal force is necessary when the
public servant is doing his duty. The quality of the two offences is also
different, inasmuch as Section 186 IPC occurs in Chapter X of the IPC
dealing with contempts of the lawful authority of public servants, while
Section 353 IPC occurs in Chapter XVI dealing with offence affecting the
human body. It has also been clarified that Section 195 CrPC is not a bar for
trial of an accused person for a distinct offence, even if disclosed by the same
set of facts, but which is not within the ambit of said section.
14. In view of the legal position explained by Hon'ble Supreme
Court as above, the contrary view taken by this Court in the case of Bhagat
Ram (supra), cited by ld. counsel for the revisionists, cannot give any
advantage to them.
15. In the present case, there are allegations against the petitioners,
which prima facie make out offences under Section 186 IPC as well as well
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Section 353 IPC, which are quite distinct. Section 195 Cr. PC does not bar
the trial of the accused person for a distinct offence, disclosed by the same
set of facts but which is not within the ambit of that section.
16. Having regard to the aforesaid facts and circumstances, this
Court finds no merit in the present petition.
Dismissed.
Pending application(s), if any, stand disposed of.
(DEEPAK GUPTA)
04.04.2024 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? No
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