IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 378 of 2005. Judgment reserved on: 19th April, 2010. Decided on: 5th May, 2010. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Dinesh Chander Sharma ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Anshul Bansal, Additional Advocate General and Mr. J.S. Rana, Assistant Advocate General. For the respondent : Respondent in person. ____________________________________________________ SURINDER SINGH, J. 1. State has challenged the acquittal of the respondent for the offences punishable under Sections 353, 332 and 506 of the Indian Penal Code, passed by the learned trial Court in Case No.RBT 22-II-2001/2000, decided on 26th May, 2002. 2. In short, the prosecution case can be summed up thus. Respondent is a practicing lawyer in District Courts at Una. Admittedly, on 29th April, 2000, around 12.30 p.m. he had gone to meet Deputy Whether reporters of the Local papers are allowed to see the judgment? - 2 - Commissioner Shri K.K. Pant, in his office with respect to the progress of some development work in his Panchayat. At that time, Shri Pant was busy in the meeting of the revenue officials and he was informed by complainant Joginder Singh, Peon that he could wait till the meeting is over. Respondent revisited his office at 3.30 p.m. Complainant told him to give a slip mentioning his name and the purpose of meeting, but he declined to do so. It is alleged that the respondent became red enrage and tore off the slip handed over to him for the purpose and gave 2-3 slaps to the complainant, besides manhandling him also criminally intimidated him, his shirt was also torn. The alleged incident is stated to have been witnessed by PW-5 Shankar Dass, who was present waiting, to meet the Deputy Commissioner outside his office, the complainant was got released from the clutches of the respondent by Shri Baldev Chand, P.A. to the Deputy Commissioner, who was attracted by commotion outside his room. 3. The complainant brought the matter to the notice of the Deputy Commissioner in writing which was sent to Police Station for necessary action, on the basis of which FIR was registered in Police Station, Una. 4. The police visited the spot on the same day, prepared the site plan, seized the torn shirt of the - 3 - complainant. He was got medically examined and the police called the respondent who had left the place and recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure. It is also alleged that when the respondent was brought he indulged in arguments and was about to assault the complainant, thus he was arrested under Section 107/151 of the Code of Criminal Procedure and later in this case around 9/9.30 p.m. on the same day. He was enlarged on bail by the Court on the next day. 5. After completing the investigation, case was presented in the Court for the trial of the respondent for the offences aforesaid. 6. The respondent was charged-sheeted for the offences aforesaid to which he denied and claimed trial. 7. To prove its case the prosecution examined its witnesses. The respondent was also examined under Section 313 of the Code of Criminal Procedure. He pleaded false implication. According to him, when he revisited the office in the afternoon, the Peon demanded the slip. He also alleged that the Deputy Commissioner, his P.A. and the employees Union of the said office connived with each other and was falsely implicated him in the case. - 4 - 8. To prove his case the respondent examined himself as his own witness and also produced DW-2 Baldev Chand, P.A. to the Deputy Commissioner, DW-3 Vijay Kumar Sharma, Advocate, DW-4 Anil Kumar, Criminal Ahlmad and DW-5 Om Parkash, Reader of Fast Track Court, Una. 9. Further on his application CW-1 Jaswant Singh Rai, CW-2 Ashok Kumar, CW-3 Shri K.K. Pant, the then Deputy Commissioner, Una were also examined as Court Witnesses. He also tendered in evidence the photocopies of the statements of the witnesses examined in other cases alongwith few more documents in his defence. The said copies were certified by the respondent himself from the attested copies supplied by the copying agency, which are otherwise not permissible under the law. 10. However, after going through the evidence, vide his judgment the learned trial Court proceeded to hold that although the prosecution was able to prove that the complainant Joginder Singh was on duty as Peon at the relevant time, but there was no iota of evidence that the respondent had factually criminally intimidated and obstructed him from performing his duties as public servant and no injury was caused to him as alleged. It was held that the prosecution was lodged - 5 - without any reasonable cause. Thus, a show cause notice on the request of the respondent was ordered to be issued to the complainant under Section 250 of the Code of Criminal Procedure as to why the compensation be not awarded to the respondent for lodging a false complaint. This procedure was ordered to be separately placed before him with an attested copy of the judgment. 11. State filed the instant appeal but complainant Joginder Singh, against the notice under Section 250 of the Code of Criminal Procedure against him assailed the order in revision petition before the Court of Sessions. Admittedly, on 22nd October, 2007 his revision petition was allowed on the ground that Shri K.K. Sharma, the then Additional Chief Judicial Magistrate who pronounced the order impugned was transferred, his successor in office had no jurisdiction to continue the proceedings under Section 250 of the Code of Criminal Procedure. Thus, on the strength of the judgment of the Apex Court rendered in Surendra Singh v. State of Bihar, 2006(2) Criminal Court Cases 367 (SC) accepted the revision petition and set aside the order and dropped the proceedings. 12. Respondent had moved an application, which was registered as Cr.M.P. No.634 of 2009, for - 6 - placing on record the copy of the order dated 11th August, 2009 passed by the learned Additional Sessions Judge, Una, in Revision Petition filed by him against complainant Joginder Singh against the dismissal of his complaint under Section 500 of the Indian Penal Code showing that complainant Joginder Singh had tendered unconditional apology to the respondent and sought pardon for his act of having got registered FIR against the respondent at the instance of the then P.A. to the Deputy Commissioner. The complainant sought pardon by touching the feet and the respondent herein is stated to have shown magnanimity and agreed that the matter can be set at rest without delaying further. Consequently, the revision was dismissed as having been compromised and the complaint as well. 13. Shri J.S. Rana, learned Assistant Advocate General, vehemently argued that the findings of the learned trial Court acquitting the respondent were wrong and incorrect and further that there was no iota of evidence to hold that the prosecution against the respondent was false and without any reasonable cause. According to him, if the evidence on record is appreciated in its right perspective, there are grounds for converting the acquittal into conviction and also to - 7 - dislodge the findings that the prosecution was without any reasonable cause. 14. The respondent submitted that the evidence on record put forth by the prosecution shows that the complaint filed by the complainant was false, made without any reasonable cause at the behest of some interested persons, which fact was admitted by Joginder Singh while tendering unconditional apology in the proceedings in Criminal Revision, in the Court of Sessions as stated above. He also took me through the evidence on record, more specifically the evidence led by him and also the photocopies of the statements of various witnesses in different cases filed by him, to point out that the order of his acquittal and the action of the learned trial Court to proceed against the complainant under Section 250 of the Code of Criminal Procedure was not illegal as projected. According to him, the photocopies of the statements were admissible and were got proved by producing the relevant files, thus admissible as substantive evidence of admission made therein in view of law laid down by Supreme Court in Bharat Singh and others v. Mst. Bhagirathi, AIR 1966 SC 405. 15. I have given my thoughtful consideration to the rival contentions of the parties and have carefully examined the evidence on record. - 8 - 16. As already stated above, consequent upon complaint Ext.PW-1/A of PW-1 Joginder Singh, Peon addressed to the SHO, FIR was lodged under the aforesaid Sections. The said complaint was received by SHO Harnam Singh at about 4.30 PM. He proceeded to the spot and got the complainant medically examined. Sent police official to call for the respondent, who was allegedly brought from his village Santoshgarh and reached around 5.00 or 5.30 pm in D.C. Office Una, where SI Harnam Singh was present alongwith the complainant and other witnesses. The brief count of the witnesses produced by the parties is as under. 17. The complainant was examined as PW-1. He categorically substantiated the version given in the complaint and also stated about his injuries and tearing of his shirt by the respondent, which was sealed and taken into possession by the police vide memo Ext.PW- 1/B. During the trial he identified shirt Ext.P-1. He was subjected to meticulously cross-examination, but he adhered to his statement. He further stated that during the investigation he remained on the spot and further that in the room of PA Baldev Chand to the Deputy Commissioner where there was a sitting arrangement for the Stenographer and Clerk. He admitted the suggestion that during investigation he was standing besides the PA. - 9 - At that time Shankar Dass and Kewal Krishan were also present and the respondent was sitting behind the door with Rattan Lal. The police was present there when the respondent was being interrogated. Further that SHO also told the respondent to call his Advocate Shri M.L. Sharma telephonically. He stated that when Shankar Dass was asked by the SHO about the incident he started giving his statement. He further stated that when respondent was brought, he told him that a case was registered against him and he was being arrested. The respondent did not resist which means that his arrest under Section 107/151 of the Code of Criminal Procedure by the police was not justified. The witness was cross-examined with respect to the sitting arrangement in the office of Superintendent to the Deputy Commissioner. He stated that there was a room of the Superintendent in front of the office of the Deputy Commissioner where about 10/15 employees do sit. With respect to the incident in question he stated that when he raised hue and cry only PA to the Deputy Commissioner came out and all others kept sitting in their respective rooms. He denied that he lodged a false FIR against the respondent at the instance of the Deputy Commissioner, his PA and Gunman. The complainant was further cross-examined at the instance of - 10 - respondent on different dates. He then stated that his shirt was taken into possession and sealed on the same day by the police and the statement of no other witness was recorded by the police in his presence. He expressed his ignorance that when the respondent had come there he had hot exchange of words with the PA to the Deputy Commissioner and he was separated by the Naib Court present there. Although, the witness was gritted meticulously, but with respect to the incident in question he was firm in his deposition. 18. PW-2 Kewal Krishan was present outside in the Deputy Commissioner’s office around 3.30 p.m. standing in queue to meet the Deputy Commissioner. He stated that the respondent told the Peon that he wanted to meet the Deputy Commissioner. In turn, the Peon told him to give a chit to him, but the respondent caught hold from his shirt and went inside. He did not state about giving slaps etc. In his cross-examination he stated that at that time about 10/15 persons were sitting there and some of the employees of the Deputy Commissioner’s office had come out when the respondent picked up the quarrel with the complainant and the Peon was not relieved by any one from his clutches. He admitted that the respondent was brought to the office of the Deputy Commissioner in the evening - 11 - in respect of the said incident. He denied that when the respondent appeared before the Deputy Commissioner he alongwith his father was present there and the Peon was also called. He also denied the suggestion that the Deputy Commissioner instructed the Peon to lodge the FIR against the respondent. 19. PW-3 Bhagwan Dass produced the copy of the appointment letter of the complainant and PW-4 Rattan Chand is a witness to the recovery of the shirt of the complainant. In cross-examination he stated that when the respondent picked up the quarrel with the complainant he was not present. He stated that the investigation in this case started about 5/6.00 PM and at that time the respondent was present. He confirmed the presence of PWs Shankar Dass, his son Kewal Krishan and one Ashwani Kumar, who came thereafter. He also proved his signatures on the packet in which the shirt was sealed. 20. PW-5 Shankar Dass did not fully support the prosecution case, as such he was declared hostile. Although, he stated that he had come to meet the Deputy Commissioner and gave a chit. He was called inside. The moment he entered inside the office he was attracted by some commotion outside. In the meantime, respondent entered into the room of Deputy - 12 - Commissioner and started arguing with him. The Deputy Commissioner told him (PW-5) to sit in the room of his PA and he would be called later. He did not see the respondent manhandling the complainant, but he specifically stated that he noticed that the shirt of the complainant was torn from near the neck. He admitted that the police had recorded his statement under Section 161 of the Code of Criminal Procedure on the same day, i.e., 29th April, 2000, but denied that any such incident as alleged by the complainant had taken place in his presence. But his cross-examination conducted by the respondent need to be noted. He admitted that when he entered inside the room of the Deputy Commissioner after sometime the respondent entered the room and at that time the Gunman of the Deputy Commissioner was present. He stated that the Deputy Commissioner told the respondent that he should not have done this thing as he was required to send a chit to meet him. But the respondent told him that he is an Advocate and go anywhere. He denied that on the above complaint of the respondent Deputy Commissioner had called the complainant, but however he categorically stated that the complainant came alongwith written complaint against the respondent. He also stated that he remained sit in the office of Deputy - 13 - Commissioner at the instance of his PA as he was a witness of the occurrence. He further stated that the Investigating Officer had come alongwith the respondent. He came to know that the respondent after meeting the Deputy Commissioner has gone to his village Santoshgarh which caused some delay to bring him to the office by the police. He further stated that when the interrogation of the respondent was going on, he got enraged and at that time he had a scuffle with the complainant and also picked up the quarrel with the PA. He further stated that respondent told that he was an Advocate and also threatened them with dire consequences and all that happened in the presence of the police. He also stated that in his presence the complainant was caught hold by the respondent from the neck. However, he admitted that Additional Superintendent of Police had called him and his son for the purpose of enquiry in this case and then their statements were recorded but he was not confronted with such statements. 21. PW-7 Inspector Harnam Singh is the Investigating Officer in this case. He stated that on the receipt of the complaint, Rukka was sent for the registration of the case and he started investigation. He visited the spot, prepared the site plan Ext.PW-7/B and - 14 - took into possession shirt of the complainant vide memo Ext.PW-1/B. It was sealed with seal impression “A”. Respondent was called. When he asked about the alleged occurrence, respondent got enraged and started threatening him and was ready to pick up the quarrel. Apprehending that he would commit some offence, he was arrested under Section 151 of the Code of Criminal Procedure and handed over to SI Ranjit Singh and Constable Subhash. He stated that he recorded the statement Ext.PW-11/C of Kewal Krishan and the statement Ext.PW-11/D of Shankar Dass, as stated by them. He also stated that the complainant was sent for the medical examination. Later, in this case the respondent was arrested. The investigation was handed over to SI Ruldu Ram. In cross-examination he stated that the respondent was called through SI Ranjit Singh around 4.30 PM. He was brought around 5.00 PM. He stated that when he was enquiring the respondent about the incident, he was enraged and was ready to assault. He had also administered threats and further stated when he started advancing towards the complainant he was taken into custody. He also stated the complainant in the case under Section 105/151 of the Code of Criminal Procedure was Joginder Singh, whereas Joginder Singh did not say so nor there was any - 15 - mention of Joginder Singh in the complaint Ext.PW-1/A. He also stated that when the respondent was arrested, Baldev Chand, PA to the Deputy Commissioner was present in his office. Ashwani Kumar was a witness to the recovery memo of the shirt. He admitted that whatever had been written in the complaint Ext.DA was correct and he stated that as a preventive measure he had to arrest the respondent and the information regarding his arrest was given at 9.45 PM after completing the investigation of this case. The brother of the respondent was intimated about the arrest. He admitted the suggestion that the investigation of the case started when the respondent reached the spot. He did not enquire anything from the Gunman or from the Deputy Commissioner, as there were other independent witnesses whose statements were recorded. 22. Further, PW-8 Dr. Rajinder Angra medically examined the complainant at 9.20 PM on 29th April, 2000 at the instance of the police and issued the Medico Legal Certificate Ext.PW-8/A. He noticed as many as four simple injuries on the person of the complainant, which were mainly bruises and one obliquely cut wound. Probable time of injuries was within six hours. In the opinion of the doctor injury No.1 can be caused during the scuffle and others by fall. - 16 - 23. At the instance of the respondent some Court Witnesses were also examined. CW-1 is Jaswant Sigh Naib Court of the Fast Track Court. He had gone to meet Deputy Commissioner on the day of alleged incident. He stated that the respondent had come to see the Deputy Commissioner. He had sent a chit, but a meeting was going on and thereafter he returned. Second time when the respondent came there he insisted upon to meet the Deputy Commissioner on the previous slip to which complainant Joginder Singh resisted and it caused a quarrel. Respondent forcibly entered the Chamber of the Deputy Commissioner, thereafter he did not know what happened. In cross- examination he stated that when the respondent came in the forenoon session, the complainant told him that a meeting was going on which could take time and he had to wait. He admitted that after lunch the respondent revisited the office of the Deputy Commissioner. He denied that he had also manhandled the respondent. 24. CW-2 Ashok Kumar, Superintendent posted in the office of the Deputy Commissioner stated that some quarrel took place between the respondent and the complainant in the afternoon. He also stated that the complainant had written a complaint with respect to - 17 - the incident to the SHO, a copy thereof was also handed over to the employees’ union of the office of Deputy Commissioner. The meeting of the Union was held on 1st May, 2000 during the lunch time and it was decided in the meeting that the respondent be asked to behave properly in future. 25. CW-3 Shri K.K. Pant, the then Deputy Commissioner stated that Joginder Singh Peon of his office had made a complaint against the respondent about the giving of beatings to him and he had also seen the torn shirt, but he did not have any personal knowledge as to what has happened outside his office. He was also subjected to lengthy cross-examination. He denied that the respondent asked him as to what was his fault. In cross-examination conducted by the learned Public Prosecutor he admitted that the complainant had come to his Chamber and complained against the respondent that his uniform was torn by the respondent and was given beatings. 26. Respondent also appeared as his own witness under Section 315 of the Code of Criminal Procedure as DW-1. He stated on the day of incident he had sent a chit to meet the Deputy Commissioner in connection with his work and waited outside his office for about 10/15 minutes for his turn. But he came to know - 18 - that some meeting was going on. He told the Peon to enquire about his chit from the Deputy Commissioner for his meeting. When he repeatedly asked the Peon, then he told that it was for him to decide. Thereafter he entered the office of Deputy Commissioner. The Officers sitting with the Deputy Commissioner were taking tea. ADM who was also present there told him to give the particulars of his application and told him to meet him after lunch. He again visited the office of Deputy Commissioner after lunch at about 3.15 PM. He asked the complainant as to who was inside the Deputy Commissioner’s office and how much time he would take. He told him that District Attorney Shri R.P. Raina was there. Jaswant Singh, Gunman of the Deputy Commissioner sitting besides the complainant, he asked him as to how he entered the office of the Deputy Commissioner in the forenoon of his own. Respondent replied that he had given a chit to meet the Deputy Commissioner and he sought the permission to go inside from the complainant. He stated that at about 3.20 PM he was called by the Deputy Commissioner inside. District Attorney was not there. Deputy Commissioner was engaged in conversion with two other persons, namely Shankar Dass and his son Kewal Krishan. The Deputy Commissioner asked the respondent as to why - 19 - he was causing problem to his Peon. He told him that he did not do anything and the complainant could be asked. Deputy Commissioner called the Peon inside followed by Gunman of the Deputy Commissioner. The respondent asked the complainant as to what was the problem. The complainant told him that why he should ask irrelevant questions. Deputy Commissioner told the respondent that he should not intervene. In the meantime, Baldev Chand, PA to the Deputy Commissioner also came inside. When Deputy Commissioner asked him that he should behave properly, the respondent told him that it is an office and he is a public servant to serve the people. Thereafter the Deputy Commissioner asked the complainant and his PA to go out. He alleged that thereafter Deputy Commissioner got up from his