Ratti Ram vs The State

Gopal Singh J.—This is recommendation u/s 438. Criminal Procedure Code by Shri Sarup Chand Goyal, Additional Sessions Judge, Karnal for reversal of the order of Shri S. N. Parkash, Chief Judicial Magistrate, Karnal dated June 19, 1967.

The facts leading to the reference are as follows. On August 26, 1966, Ratti Ram, Foot Constable, was seen drunk and acting in a disorderly manner in the main bazar at Karnal. On receiving information that Ratti Ram was misbehaving, Ajit Singh, Assistant Sub-Inspector accompanied by Brijinder Singh Inspector and 2/3 other constables reached the spot where he was standing. It was 7.00 p.m. He wanted to arrest him. Ratti Ram is said to have abused him and obstructed Ajit Singh in the discharge of his official duty to effect his arrest. He was eventually arrested and was sent for medical examination.

A report, Exhibit P.B. was entered in the daily diary at Police Station, Karnal for offence u/s 34, Police Act against Ratti Ram at 8.15 p.m. on August 26, 1966. On August 27, 1966, first information report, Exhibit P.A. was registered against Ratti Ram u/s 294, Indian Penal Code for doing obscene acts to the annoyance of others and u/s 353, Indian Penal Code for preventing or deterring public servant from discharging his duty. After investigation, Ratti Ram was challenged to the Court of the Chief Judicial Magistrate for offences u/s 294 and 353, Indian Penal Code. In support of case of the prosecution, Ajit Parshad P.W. 2, Anant Ram P. W. 3, Gopal Dass P. W. 4, Ajit Singh, Assistant Sub-Inspector P.W. 5, Tirlok Chand P. W. 6 and Raghbir Singh, Foot Constable P. W. 7 appeared. They supported the case of the prosecution as to Ratti Ram having prevented Ajit Singh, Assistant Sub-Inspector from arresting him, his having been found drunk and having performed obscene acts of removing his tehmat and abusing the passers by. Ajit Parshad P. W. 2, Gopal Dass P. W. 4 and Tirlork Chand P. W. 6. are shop-keepers in the vicinity of the bazar where the offences are said to have been committed by Ratti Ram. Anant Ram P. W. 3 is a pensioner. He happened to pass along the bazzar and witnessed the behaviour of Ratti Ram. Ajit Singh, Assistant Sub-Inspector, P. W. 5 gave evidence as to his having been prevented or deterred by Ratti Ram from arresting him and his having behaved in drunken state in an obscene manner. Raghbir Singh P.W. 7 is a Foot Constable. He accompanied Ajit Singh and saw the resistance offered against his arrest by Ratti Ram and the obscene manner in which he behaved in the bazar. He registered report Exhibit P.B./1 u/s 34 of the Police Act on August 26, 1966 and report Exhibit P. A under Sections 294 and 353, Indian Penal Code on August 27, 1966. Gurdev Singh Inspector of Police conducted the investigation. No evidence has been produced by the doctor, who examined Ratti Ram particularly to show that he was emitting from his mouth the smell of liquor to prove that he was drunk. It has been stated by Ajit Singh Assistant Sub-Inspector P. W. 5 and Raghbir Singh Foot Constable P. W. 7 that Ratti Ram had been sent for medical examination. No medical report showing the result of medical examination is forthcoming. No doctor has appeared in the case to show that Ratti Ram was examined.

The Chief Judicial Magistrate took the view that the statements of the prosecution witnesses were not consistent about the behaviour of Ratti Ram and about his having prevented Ajit Singh, Assistant Sub-Inspector from arresting him in the discharge of his official duty as police officer. Consequently, Ratti Ram was acquitted of offences under Sections 294 and 353, Indian Penal Code, with which he was charged. The Chief Judicial Magistrate, however, found him guilty of offence u/s 34 of the Police Act as the evidence on the record showed that Ratti Ram was durk and used abusive language to the annoyance of passerby and sentenced him to Rs. 30.00 or in default of payment of fine to undergo rigorous imprisonment for one week.

Ratti Ram feeling dissatisfied with the judgment of the trial Court filed a revision u/s 435, Criminal Procedure Code. The Additional Sessions Judge before whom the revision came up for hearing held that the petitioner had not been charged for offence u/s 34 of the Police Act and could not be convicted thereunder. He has recommended that the judgment of the Chief Judicial Magistrate convicting Ratti Ram is not justified inasmuch as he was not charged for offence u/s 34 of the Police Act and there has been occasioned failure of justice.

Shri M.L. Nanda, who has appeared in support of the recommendation made, contends that no charge having been framed u/s 34 of the Police Act. the petitioner could not be convicted and in any case there is no justification for the finding that the ingredients of Section 34 of the Police Act, have been satisfied and that he has been prejudiced. Lastly, he submitted that offence u/s 34 of the Police Act is a petty one and he has been harassed by prosecution since August 26, 1966 and suffered mental worry and torture and that it is not a fit case calling for conviction.

Admittedly, no charge was framed u/s 34 of the Police Act. Section 34 runs as follows :

Any person who, on any road or in any open place or street or thoroughfare within the limits of any town to which this Section shall be specially extended by the State Government, commits any of the following offences, to the obstruction incontinence, annoyance, risk, danger or damage of the residents or passengers shall on conviction before a Magistrate, be liable to a fine not exceeding fifty rupees, or to imprisonment with or without hard labour not exceeding eight days Sixth.- Any person who is found drunk or riotous or who is incapable of taking care of himself

If a charge were framed u/s 34 of the police Act, the prosecution had to prove the following two material particulars of the prosecution case in so far as the facts of the present case are concerned :

(1) The petitioner while in the main bazzar of Karnal was found drunk.

(2) That by virtue of his being, drunk he was causing obstruction inconvenience, annoyance, risk or danger to the passengers.

If charge were framed u/s 34, the attention of the petitioner would have been directed to meet the above two material particulars of the case of the prosecution by appropriate cross-examination of the prosecution witnesses and by leading defence evidence accordingly. The charge was, however, framed under Sections 294 and 353, Indian Penal Code. In case of charge u/s 294. the prosecution has to establish the element of causing of annoyance to others by the person charged apart from the fact of the act of obscenity committed by him. Thus, the element of annoyance does enter into the composition of Section 294, Indian Penal Code. The material particular, which the prosecution have to prove, both in case of charge u/s 294, Indian Penal Code and that u/s 34, Police Act is the common element of annoyance. The ingredient of ''being drunk'', which is the sine qua non of Section 34 of the Police Act in relation to the facts of the present case, does not find place as an ingredient in either Section 294 or Section 353, Indian Penal Code. If the petitioner had to defend himself against the charge u/s 294 read with Section 353, Indian Penal Code, he had not to defend himself against the particular act of his being drunk as given in clause sixth of Section 34 of the Police Act. His attention could not have been directed for meeting this particular fact of the prosecution case, which was not there by absence of that ingredient in that charge and he could not have dreamt of either directing his attention to the cross-examination of the prosecution witnesses to defend himself against that fact or ingredient or to adduce evidence of defence witnesses to the effect that he did not commit the act contemplated by clause sixth of Section 34 of the Police Act. Thus, it is a clear case, in which the petitioner has been prejudiced by conversion of charge under Sections 294 and 353, Indian Penal Code into one u/s 34 of the Police Act, which in fact was never framed. This course adopted by the Chief Judicial Magistrate is illegal as it has occasioned prejudice to the petitioner by denying him the right of defence of his case against the terms of the charge framed against him. Having not been charged for offence u/s 34 of the Police Act, his conviction under that Section is illegal.

Even on evidence, the prosecution have failed to prove that he was drunk. According to the evidence of Ajit Singh, Assistant Sub-Inspector P. W. 5 and Raghbir Singh, Constable, P. W. 7, the petitioner was sent for medical examination to the Civil Hospital at Karnal. No medical report is forthcoming nor the doctor to whom the petitioner was sent for examination has been produced by the prosecution in support of the allegation that he was drunk and that liquor smell was coming out of his mouth. Thus, the prosecution have failed to show that he was drunk. Under the circumstances of the case, the prosecution have failed to establish the second ingredient of Section 34 of the Police Act, namely, that the petitioner was drunk.

I accept the recommendation of the Additional Sessions Judge, Karnal dated December 1, 1967 and set aside the conviction and sentence of the petitioner u/s 34 of the Police Act. Considering that the petitioner was apprehended as long ago as August 26, 1966 and the petitioner had to face trial for such a petty offence for as long a period as ten months and had to suffer from harassment of trial and thereafter had to file revision petition against the judgment of the Chief Judicial Magistrate, which is untenable, it is not a fit case for being sent back for trial of the petitioner after a fresh charge being framed u/s 34 of the Police Act. He has already suffered adequate mental torture and remained in suspense during this long period of two years and four months.

Under the circumstances, I order that he be acquitted.