The State of Karnataka vs Vijay Kumar

Huluvadi G. Ramesh, J.—This appeal is filed by the State challenging the order of acquittal passed by the Principal Sessions Judge, Gulbarga in Crl. A. No. 48/2008 dated 09.04.2008 acquitting the accused by setting aside the order of sentence passed by JMFC, Yadgir in C.C. No. 27/2007 dated 24.06.2008. According to the prosecution, on 02.03.2007 around 12.30 p.m. the accused having entered the office of Assistant Commissioner, Yadgir, obstructed him from discharging his duty by abusing him in filthy language and also used criminal force preventing him from discharging his duty as public servant in spite of request and warning. The Tahsildar entered into the scene and also his officials PWs. 1 and 6 to 8 separated the accused from the Assistant Commissioner. A case was registered against the accused for the offences under Sec. 353 and 186, IPC before the Sub-Inspector of Police, Town Police Station, Yadgir and after inquiry, the charge sheet was filed.

On the charge sheet being filed against the accused for the above said offences, during trial and after recording evidence, the accused pleaded not guilty and claimed to be tried. The prosecution after having examined about 11 witnesses as PWs. 1 to 11, got marked 3 documents as Exs. P. 1 to P. 3 and statement u/s 313 of Cr.P.C. was recorded. The defense of the accused was total denial. The learned Magistrate after hearing the parties, having held that the prosecution was able to prove that on 02.03.2007 the accused has entered the office of the Assistant Commissioner, Yadgir, obstructed him from discharging his duty and also using criminal force prevented him from discharging his duty as public servant, sentenced the accused to undergo simple imprisonment for one year and to pay a fine of Rs. 500/-, in default, simple imprisonment for three months for the offence u/s 353 of IPC and further sentenced to pay fine of Rs. 500/- in default, simple imprisonment for three months for the offence punishable u/s 186 of IPC.

As against which in the appeal preferred by the accused, the learned Sessions Judge holding that there is inconsistency in the version of the witnesses as to what actually had transpired in the chamber of the Assistant Commissioner and also taking into consideration that PW. 5 himself has not stated that the accused forced him to sign the cheque, opining that no case for criminal force is made out against the accused that he prevented the Assistant Commissioner from discharging his duty and the version of the witnesses are vague, acquitted the accused. As against this, the State has preferred this appeal on various grounds.

Heard the learned High Court Government Pleader and the learned counsel appearing for the respondent/accused.

The learned counsel for the appellant/State submitted that the evidence of PW. 5 Assistant Commissioner whom the accused has obstructed from discharging his duty and used criminal force while discharging his duty as public servant, fully supports the case of prosecution. He further submits that PW. 4 - Tahasildar who arrived at the spot has lodged the complaint on the instruction of PW. 5 � Assistant Commissioner who has been obstructed by the accused from discharging his duty. PWs. 6 to 8 are the persons who came to the chamber of the Assistant Commissioner and have witnessed the incident and also separated the accused from the Asst. Commissioner. He also submitted that the accused has abused the Assistant Commissioner in filthy language while he was discharging his duty as public servant thereby, he has committed the offences punishable under Sections 186 and 353 of IPC. Though, the learned Magistrate convicted the accused ignoring minor contradictions, but the learned Sessions Judge in appeal, has come to the conclusion that there is inconsistency in the version of the witnesses stating that there is major omissions and contradictions and acquitted the accused which is perverse and illegal. Accordingly, he has sought for setting aside the order of acquittal.

Learned counsel appearing for the respondent/accused submitted that the procedure as contemplated u/s 195 of Cr.P.C. ought to have been followed instead of taking cognizance by the police on such complaint filed by the Tahasildar and it is illegal. He also submitted that there is inconsistency in the version of the complainant and the witnesses. PWs. 6 to 8 are all official witnesses. PW. 5 is the Assistant Commissioner and his evidence cannot be relied upon to hold that the accused is guilty of the offences as there is exaggeration and has submitted that Assistant Commissioner has not stated anything about the accused forcing him to sign the cheque. Accordingly, he has sought for acquittal of the accused.

In the light of the arguments advanced, the points that would arise for consideration are:

(i) Whether the Sessions Judge was justified in acquitting the accused?

(ii) Whether the prosecution was able to prove the guilt of the accused beyond reasonable doubt?

(iii) Whether the procedure adopted in holding an inquiry for trial against the accused is illegal?

(iv) What order?

So far as the procedural aspect in respect of Section 186 of Indian Penal Code is concerned, the procedure contemplated u/s 195 of Cr.P.C. is, complaint has to be filed by the Public Servant either by himself or by a person authorized, to the Magistrate, then only the Magistrate has to take cognizance and try the offence. In the case on hand, so far as the offence u/s 186 of Indian Penal Code is concerned i.e., obstructing public servant in discharging of his public functions, the procedure followed is, by filing a report to the police and then police filing a report to the Magistrate. Though there is irregularity, since this offence is clubbed with the offence punishable u/s 353 of Indian Penal Code for which the procedure contemplated is, by reporting to the police by way of First Information Report, of course it also includes complaint and the Magistrate on taking such cognizance after final report is filed, has tried the case based on the police report. Such procedure adapted to try the offence u/s 186 of IPC along with the offence u/s 353 of IPC cannot be held to be illegal. Though there is some illegality which does not vitiate the proceedings only for the reason that in respect of offence u/s 186 of Indian Penal Code such a procedure is followed based on the police report and taking cognizance, then of course, it could be a clear violation of provisions of Section 195 of Cr.P.C. In that view of the matter, so far as the procedural aspect followed by the learned Magistrate in holding that the accused is guilty of the offence punishable u/s 186 and also u/s 353 of Indian Penal Code, there is no illegality.

So far as the evidence of PW-4 Tahasildar coupled with the evidence of PW-5 Asst. Commissioner who had been deterred by the accused which was witnessed by PWs. 7 and 8 whose evidence is consistent with regard to the overt-act of the accused so as to cover all the ingredients of Section 353 of IPC, as per the version of the complaint given by PW-4- the Tahasildar, on 2.3.2007 the accused obstructed the Asst. Commissioner from discharging his duty by making a hue and cry. Even in the cross-examination nothing worth is elicited to disbelieve the version of the complainant-Tahasildar who went to the scene of offence on hearing the hue and cry in the chamber of PW-5- Asst. Commissioner and PW-4 Tahasildar had been directed by the Asst. Commissioner to file complaint. Accordingly, he filed a complaint. The evidence of PW-5 is that the accused has asked him to distribute the amount to the Ashraya Scheme beneficiaries. When accused demanded so, since he was not a beneficiary, the Asst. Commissioner did not respond much, for which the accused being enraged has forcibly thumped the table. Though the accused had been directed to leave the chamber, but he refused to do so and he has rather resisted. Meanwhile, the Tahasildar and other officials came to the spot. He has specifically stated that accused has obstructed him from discharging his duty. The evidence of PWs. 6, 7 and 8 is to the effect that in the chamber of Asst. Commissioner, there was a galata going on where the accused was shouting in the chamber of Asst. Commissioner and he has obstructed the Asst. Commissioner from discharging of his duty. The evidence of these three witnesses in the absence of any admission on their part which is contrary to the evidence of their chief examination does prove the ingredients of offence u/s 353 of Indian Penal Code which is deterring a public servant from discharging his duty.

So far as the offence u/s 186 of Indian Penal Code is concerned, since the ingredients of Section 186 of Indian Penal Code forms part of the offence u/s 353 of Indian Penal Code, there may not be any separate conviction order be passed. Further more, the Magistrate ought to have followed the procedure contemplated u/s 195 of Cr.P.C. in respect of offence u/s 186 of IPC. In the circumstances, in modification of the order passed by the learned Magistrate, while setting aside the finding and order of acquittal passed by the learned Sessions Judge, the accused is held guilty of the offence punishable u/s 353 of Indian Penal Code and while holding that the prosecution is able to prove its case beyond reasonable doubt regarding the accused committing the offence u/s 353 of IPC i.e., deterring a Public Servant from discharging his duty, instead of sentencing the accused to undergo imprisonment in the facts and circumstances of the case, it would meet the ends of justice if the accused is sentenced to pay a fine of Rs. 1,000/-, in default to undergo S.I. for one month. Accordingly, the appeal filed by the State is allowed in part. Send back the records.