Shri Sita Ram etc. vs The State of Himachal Pradesh

D.B. Lal, J.—Sita Ram and Shrimati Sarjo Devi have been convicted u/s 186 of the I.P. Code and have been sentenced each to pay a fine of Rs. 20, in default to undergo six days simple imprisonment, by a Magistrate First Class, Kasumpti (Simla). A complaint case was instituted against them at the instance of Samjhota Samiti--a body constituted u/s 378 of the Himachal Pradesh Panchayat Raj Act, 1952 (hereinafter to be referred as the Act) and it was alleged in the complaint that on 22-6-1969 when two complaints, one filed by Gulabi Devi and the other filed by Ram Swarup and Kesri, under sections 323 and 504 of the I.P. Code, were pending before that Samiti against the Petitioner-accused, it was ordered by the Samiti that the two accused be bound over to keep peace during the course of trial u/s 58 of the Act. Upon hearing that order, it was alleged that the Petitioner-accused insulted the Samiti members and also refused to obey their orders. As a result to that incident, the Samiti filed the complaint against the Petitioner-accused and submitted that complaint to the Sarpanch, Nyaya Panchayat, Anandpur. It appears, on a date fixed in the case by Nyaya Panchayat, the Petitioner-accused did not put in appearance and they were fined each a sum of Rs. 15 u/s 174 of the I.P. Code. Against this order of conviction, the Petitioner-accused filed a revision u/s 93 of the Act before the Sub-Divisional Judge, Mahasu and the jurisdiction of Anandpur Panchayat was cancelled by the Judge on 29th August, 1969. In this manner, the complaint of Samjhota Samiti which was formerly addressed to the Nyaya Panchayat was transferred to the Sub-Divisional Judge who intended to try that complaint himself.

Accordingly the Magistrate First Class-cum-Sub-Divisional Judge, Kasumpti, tried the complaint instituted by Samjhota Samiti and it is his order of conviction and sentence which became subject-matter of revision before the learned Sessions Judge. The learned Magistrate convicted and sentenced the Petitioner-accused u/s 186 I.P. Code, in the manner stated above. The learned Sessions Judge entertained the revision petition against that order and he has set aside the conviction and sentence, holding that the Samjhota Samiti had no lawful power to bind over the Petitioner-accused u/s 58 of the Act and as such the order being illegal, no offence was committed u/s 186 of the I.P. Code. The learned Sessions Judge has recommended for the quashing of the conviction and sentence of the Petitioner-accused and that is how the case has come up to this Court u/s 438 of the Code of Criminal Procedure.

In this Court, neither the complainant Samjhota Samiti appeared nor the State took any interest. The decision being in favour of the Petitioner-accused, they also remained absent. After going through the order of the learned Sessions Judge, it appears to me that the conviction u/s 186, I.P. Code, was not sustainable. In fact, that section was not even applicable to the facts and circumstances made out against the two accused. The learned Sessions Judge has quoted in extenso the substance of the complaint filed by the Samjhota Samiti. It was stated that the Samiti made the order of binding over the two accused so that they might keep peace during the course of trial. Upon that the two accused became angry and "challenged" the Panchayat (Samjhota Samiti) by insulting the members by saying that they would not obey the orders. They started shouting at the Samiti members and caused obstruction in their judicial work. Thereafter the two accused got up and went away from the court-room. Upon these allegations made in the complaint, the offence formulated was u/s 228 of the I.P. Code. There was an intentional insult caused by the accused and they had also interrupted the public servants from performing their judicial duties. The Samiti members were obviously sitting at a stage in judicial proceedings. But instead of proceeding against the two accused under that section, the learned Magistrate, for some reason or the other, chose to convict them u/s 186 which deals with quite a different offence. A public servant if obstructed in the discharge of a public function is entitled to protection u/s 186 and the offender is punished under that section. When the facts and circumstances proved an offence u/s 228, it was hardly required of the learned Magistrate to have considered the case u/s 186. The Samjhota Samiti was not performing any public function. It was rather sitting in a judicial proceeding. The learned Magistrate seems to have missed this important distinction. Therefore, in my opinion, the offence u/s 186 was not made out and the Petitioner-accused should not have been convicted on that count.

It has further to be understood that the Samjhota Samiti was not performing a legal duty when it passed the order to bind over the two accused for keeping peace u/s 58 of the Act. A bare perusal of that section points out that security order for keeping peace could only be made by the Sarpanch of the Nyaya Panchayat. The members of the Samjhota Samiti were decidedly not performing the duties of Sarpanch of the Nyaya Panchayat. As such they could not make any security order for keeping peace during the course of trial. If the very order made by the Samjhota Samiti was illegal, they could not be stated to be performing a public function which was authorized under law and, therefore, whatever obstruction was caused by the two accused, no offence was made out against them with reference to Section 186 of the I.P. Code. The learned Sessions Judge has also held in the like manner. I am in agseement with his finding on this point. This is an additional ground why the two accused could not be indicted for the offence u/s 186 of the I.P. Code.

The learned Sessions Judge, besides dealing the question with reference to Section 186 of the I.P. Code, has also considered the order of the Magistrate defective, because there was some confusion as to the cognizance of the case having been taken by the Magistrate First Class or Sub-Divisional Judge u/s 93 of the Act. The learned Sessions Judge should have known that one and the same officer was exercising both the powers. While deciding the case, if the learned Magistrate expressed himself to be exercising powers not of a Sub-Divisional Judge alone but of a Magistrate First Class also, that would not have made any difference. According to the learned Sessions Judge, the jurisdiction u/s 93 of the Act could only be exercised by a Sub-Divisional Judge and not by a Magistrate First Class. I do not think it is at all necessary for me to give any finding on this controversy which, to my mind, is not even material because the Magistrate who tried this case was both Magistrate First Class as well as Sub-Divisional Judge.

The learned Sessions Judge further attempted his own interpretation of the word "obstruction" used in Section 186 of the I.P. Code. According to him, by "obstruction" some overt act on the part of the two accused was required to be committed and mere abuses hurled at the Samiti members would not be sufficient. 1 have my own doubts, if hurling of abuses to a public servant while he discharges public function would not amount to "obstruction" within the meaning of Section 186 of the I.P. Code. According to the learned Sessions Judge, it does not. It is not necessary for me to consider this point any further in so far as I have already held that the offence was not made out u/s 186 of the I.P. Code for other reasons and that the order of asking security for keeping peace was itself illegal and could not be passed by the Samjhota Samiti. On those grounds, I am in agreement with the learned Sessions Judge that the order of conviction and sentence of the two accused should be set aside. It is no longer necessary further to give a categorical finding as to whether "obstruction" was really caused u/s 186 of the I.P. Code or jurisdiction could not be assumed by the Magistrate Class u/s 93 of the Act.

With these observations, I am of opinion that the reference made by the learned Sessions Judge should be accepted and the conviction and sentence u/s 186 of the I.P. Code against the Petitioner-accused are set aside.