IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Revision No.327 of 1994 Date of Decision: 4.8.2009 Rajinder Singh. ....... Petitioner through Shri Hemant Bassi,Advocate. Versus State of Haryana ....... Respondent through Shri Ajay Singh Ghangas, Deputy Advocate General. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This revision petition is directed against judgment dated 19.5.1994 of the Additional Sessions Judge, Narnaul (hereinafter described as `the appellate Court') vide which the judgment of conviction and order of sentence dated 3.4.1993 passed by the Sub Divisional Judicial Magistrate, Mahendergarh (referred to hereinafter as `the trial Court') was modified. The petitioner faced criminal proceedings for the offences punishable under Sections 171-F, 186 and 353 of the I.P.C. He was convicted and sentenced by the trial Court in the following manner:- (i)For offence under section 171-F To undergo rigorous I.P.C. imprisonment for six months and to pay fine of Rs.500/- and in default of payment of fine, to undergo rigorous imprisonment for one month. (ii)For offence under section 186 To undergo rigorous I.P.C. imprisonment for two Crl.Revision No.327 of 1994 -2- .... months and to pay fine of Rs.200/- and in default of payment of fine, to undergo rigorous imprisonment for fifteen days. (iii)For offence under section 353 To undergo rigorous I.P.C. imprisonment for one year and to pay fine of Rs.1000/- and in default of payment of fine, to undergo rigorous imprisonment for two months. All the sentences were, however, directed to run concurrently. Feeling aggrieved, the petitioner filed an appeal which was disposed of by the appellate Court while setting aside his conviction and sentence under Sections 171-F and 186 of the I.P.C. and confirming the one awarded to him under Section 353 of the I.P.C. This has resulted in the filing of the present revision petition. Learned counsel for the petitioner has contended that Section 353 of the I.P.C. is merely an aggravated form of Section 186 of the I.P.C. and once acquittal has been awarded to the petitioner for the latter offence primarily on the ground that there was non-compliance of 195(1) of the Cr.P.C., the conviction and sentence for the former offence could not be sustained. He further contended with reference to the facts and allegations levelled against the petitioner that he had snatched the ballot papers from Shri Ram Niwas, Sub Divisional Officer (Civil), Mahendergarh, who was supervising the election process of the office bearers of Municipal Committee, Kanina on the date of occurrence and thereafter, he started Crl.Revision No.327 of 1994 -3- .... running and a hue & cry was raised to stop him from running away. He then pointed out that Shri Bhim Singh, Deputy Superintendent of Police, Mahendergarh and Inspector-Ramesh Madan, who were said to have grappled with the petitioner and managed to retrieve the torn ballot papers from him and thereafter, the complaint was made by Shri Ram Niwas. Learned counsel for the petitioner submitted that there is no evidence on record to suggest that Shri Ram Niwas was a public servant or was on public duty at the relevant time and similarly, there is no evidence to suggest that the Deputy Superintendent of Police and the Inspector were present over there in discharge of their official functions and, therefore, it cannot be said that a public servant had been prevented from discharging his official duty or that force was used or that he was assaulted to prevent him from discharging his official functions. In view of this, he argued that the conviction and sentence awarded to the petitioner under Section 353 of the I.P.C. deserve to be set aside. To support his contentions/ argument, he placed reliance on Dhirendra Chandra Saha and others Versus Tripura Administration, 1963(1) Crl.L.J. 559 (Tripura); Dr.S.Dutt Versus State of U.P., AIR 1966 S.C. 523; Ashok and others Versus The State, 1987 Crl.L.J. 1750 (Madhya Pradesh); Bhagat Ram Versus The State of Punjab, 1991 (1) R.C.R. (Criminal) 192 (P&H); Babu alias Devinder Singh Versus State of Haryana, 1995(2) R.C.R. (Criminal) 458 (P&H) and State of Haryana Versus Des Ram and another, 2004(1) R.C.R. (Criminal) 751. On the other hand, learned counsel for the State contended that it is a clear case in which a public servant was prevented from discharging Crl.Revision No.327 of 1994 -4- .... his official functions and not only this, two police officers were assaulted by the petitioner. I have thoughtfully considered the rival contentions and have gone through the record as well as the judgments relied upon by the learned counsel for the petitioner. Sections 186 and 353 of the I.P.C. and Section 195 (1) of the Cr.P.C., which are relevant for the purpose of disposal of this revision petition, are extracted below:- “ Sections 186 and 353 of the I.P.C. 186. 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. 353. 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 in the lawful discharge of his duty as such public servant, shall be published with imprisonment of either description for a term which may extend to two years or with Crl.Revision No.327 of 1994 -5- .... fine, or with both.” Section 195(1) of the Cr.P.C. 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, 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 section 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 Crl.Revision No.327 of 1994 -6- .... commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), except on the complaint 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.” In Bhagat Ram's case (supra), this Court held that a Magistrate can not take congizance of a complaint initiated under sections 186 and 332 of the I.P.C. if there is non-compliance of Section 195 of the cr.P.C. according to which the same is to be lodged by the public servant himself or by some other public servant to whom he is administratively subordinate. The proceedings so initiated were quashed in that case. To the similar effect is the judgment of the Madhya Pradesh High Court in the case of Ashok and others (supra). In the instant case, the allegations against the petitioner can be divided into two parts. A perusal of the complaint made by Shri Ram Niwas shows that he was purportedly acting as Presiding Officer to supervise the elections of the office bearers of the Municipal Committee, Kanina when the petitioner allegedly snatched away the ballot papers from him and tore them out. Copy of proceedings of the Municipal Committee to that effect are on record as Exhibit-PB in which presence of Shri Ram Niwas as Presiding Officer is recorded. Thereafter, the petitioner allegedly made an attempt to run away. While he was fleeing, the Deputy Superintendent of Police and the Inspector tried to overpower him and in that process, a brief Crl.Revision No.327 of 1994 -7- .... scuffle took place between them. In so far as Shri Ram Niwas is concerned, there was no scuffle of the petitioner with him and, therefore, there was only an attempt to obstruct a public servant from discharge of his public duty. As regards the second aspect of the matter, i.e., scuffle with the Deputy Superintendent of Police and the Inspector, it is to be examined in the perspective of the provisions of Section 353 of the I.P.C. under which the petitioner stands convicted and sentenced. The evidence on record by way of deposition of the Deputy Superintendent of Police as PW3 and Ramesh Madan -Inspector as PW5 reveals that there is no positive proof that force was used or the public servants were assaulted. “Assault” has been described in Section 351 of the I.P.C., which reads as under:- “351. Assault.- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.” “Criminal force” has been defined in Section 350 of the I.P.C. and this section is extracted below:- Crl.Revision No.327 of 1994 -8- .... “350. Criminal force.- Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear, or annoyance to the person to whom the force is used, is said to use criminal force to that other.” The reading of the statements of PW3 and PW5 does not establish either of the above two facts, i.e., as to whether criminal force was used by the petitioner or they were assaulted. The Deputy Superintendent of Police, while appearing as PW3, has merely stated that there was a “Kashmakash” between him and the petitioner. At best, the term “Kashmakash” can be said to mean that there was a scuffle which is the nearest translation to convey the sense of this word. There is no evidence to suggest that the petitioner used any aggressive posturing towards the officials concerned. In this view of the matter, it will be very difficult to say that there was any assault by the petitioner upon the public servants. The scuffle could possibly be a mere attempt of the petitioner to free himself. In any case, the element of intent which is essential ingredient of “criminal force” and “assault” apparently has not been brought out from the evidence which has been brought on record. That apart, learned counsel for the petitioner appears to be correct when he says that there was no material to show that the Deputy Crl.Revision No.327 of 1994 -9- .... Superintendent of Police and the Inspector were on official duty on the place of occurrence. Consequently, even if it is assumed that there was an assault on these police officials, but if they were not on public duty, the offence under Section 353 of the I.P.C. will not be attracted. This view of mine finds strength from the observations made in Dhirendra Chandra Saha's case (supra) and Des Ram's case (supra). In the result, this revision petition is accepted and the impugned judgment is set aside and the petitioner is acquitted of the charges levelled against him. 4th August,2009 ( Mahesh Grover ) “SCM” Judge