Jaswinder Singh vs State of Punjab

T.H.B. Chalapathi, J.

This revision petition is filed against the order of the learned Additional Sessions Judge, Hoshiarpur, dated 10.9.1994, directing the framing of charges under Sections 333, 332 and 353 read with section 34 I.P.C. against the petitioners.

A case has been registered against the petitioners on a complaint given by one Davinder Singh, a police constable, working in Hajipur Police Station. According to him, on 28.1.1994, he was deputed to deliver the dak at various places and after delivering the dak to the officersconcerned, he was returning to the Police Station, Hajipur in a bus bearing No. PB02B/9495. Accused No. 1 was the conductor of the bus while accused No. 2 was the driver of the bus. According to him, he travelled in the bus on the roof for some distance and got inside at Daman Canal bus stand, then the conductor asked him for a ticket and he showed the ticket purchased by him. As he was in uniform, the conductor asked him why he was travelling in a private bus as he happened to be a police man. Thereafter, when the bus reached Hajipur, the conductor of the bus pushed him out of the bus and the bus conductor grappled him and the driver of the bus, accused No. 2, hit him with an iron rod on the left side of his face, nose and lip and that his two teeth were also broken. Thereafter, one Hoshiar Singh, Head Constable came there and admitted him in Civil Hospital.

On the basis of the said complaint, a case was registered against the accused and chargesheet was filed against the accused for the offences under Sections 332, 333, 353 and 186 I.P.C. As offence under Section 333 I.P.C. is exclusively triable by a Court of Sessions, the case was made over to Additional Sessions Judge, Hoshiarpur, who by the impugned order directed the framing of charges against the accused for the offences under Sections 333, 332 and 353 read with Section 34 I.P.C. Aggrieved by the same, the present revision petition has been filed.

The learned counsel for the petitioners contended that offences under Sections 333, 332 and 353 I.P.C. have not been made out on a reading of the complaint. It is not the case of the prosecution that the police constable Davinder Singh was attached while discharging his duties as a public servant or with any intent to prevent or deter the constable from discharging his duties as such public servant and, therefore, the offences under Sections 333, 332 and 353 I.P.C. are not attracted in this case. According to him, the averments in the complaint may amount to commission of offences under Sections 323 or 324 or under any other Section, which are not exclusively triable by the Court of Sessions. According to learned counsel, the offences under Sections 332, 333 and 353 I.P.C. came into play only when a public servant is discharging his duties as such and that if any injury is caused to him while discharging his duties in official capacity. According to him, it is not the case of the prosecution that at the time of the commission of the offence, the constable Davinder Singh was discharging any official duty because after performing his official duties, he had been simply returning to the police station in the bus during which time the alleged incident was said to have taken place.

It is to be seen whether the learned Additional Sessions Judge is correct in framing charges for the offences under Sections 332, 333 and 353 I.P.C. read with Section 34 I.P.C.

Sections 332, 333 and 353 I.P.C. read as follows

"Section 332. Voluntarily causing hurt to deter public servant from his duty. Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in 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 three years, or with fine, or with both.

Section 333. Voluntarily causing grievous hurt to deter public servant from his duty. Whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in 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 ten years and shall also be liable to fine.

Section 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 punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

A reading of the above Sections clearly shows that if a public servant while discharging his duties is attacked or any injury caused to public servant in the discharge of his duties or when any public servant prevented or deterred from performing his duties or when any publicservant assaulted or any criminal force used against the public servant while he is executing his duties as such public servant, then only the above offences would attract. It is not the case of the prosecution that the accused caused hurt or assaulted the constable Davinder Singh while he was performing his duties as such public servant, or with intent to prevent him or deter him from discharging his duties. I am, therefore, of the opinion that the necessary ingredients to attract Sections 332, 333 and 353 I.P.C. are not present in the present case. The learned Additional Sessions Judge has not considered this aspect of the matter. The learned Additional Sessions Judge referred to a Supreme Court judgment in Manumiya v. State of Gujarat, AIR 1979 SC 1706, but that decision is not applicable in this case as in that case the driver of the bus was prevented from entering into the bus to drive the bus, which is his duty, therefore, on the facts of that case, it has been held that the public servant was prevented from discharging his duty, namely, plying the vehicle, but such is not the case in the present one. There is no allegation anywhere in the complaint that the police constable was prevented or deterred from performing his duty. There is also no allegation that he was hurt while performing his duty. Performance of duty had already been done by him by delivering dak at various places. He was coming back to the police station after performing his duties. Simply because the police constable happens to be a public servant, it cannot be said that he has been discharging his duties. It depends on the facts of each case whether a public servant can be said to be discharging his duties and whether the offences have been committed when the public servant has been discharging his duties. It is not even the case of the prosecution that the accused had knowledge that the constable was performing his duty. Therefore, it, cannot be said that the accused with an intent to prevent or deter the complainant from discharging his duties, caused injuries to him. It cannot also be said that the accused caused hurt to the constable while he was discharging his duties. I am, therefore, of the opinion that Sections 332, 333 and 353 I.P.C. are not attracted in this case but the fact remains that it is the case of the prosecution that the accused beat the constable Davinder Singh on the date of the incident. It is also mentioned that his teeth were broken. It is also in the complaint that an iron rod has been used by the accused while attacking the constable. Therefore, it is for the Additional Sessions Judge to consider under what Sections the accused has to be charged with. I, therefore, feel that it is just and proper to set aside the impugned order of the learned Additional Sessions Judge and remand the matter back to him for reconsideration on the question of charges to be framed against the accused on the basis of the averments in the complaint and if he feels that any offence exclusively triable by a Court of Sessions is made out, he may try and proceed with the trial of the case after framing appropriate charges. If, he is of the opinion that the offences said to have been committed by the accused are not exclusively triable by the Court of Sessions, he may frame appropriate charges against the accused for these offences and send the matter to Chief Judicial Magistrate for trial as provided under Section 228 clause (1) of the Code of Criminal Procedure.

I, accordingly, allow the revision petition and remit the matter to the Court of Additional Sessions Judge for reconsideration of the matter on framing of charges in the light of the observations made above.