GURINDER SINGH Vs. STATE

JUDGEMENT

(1.) Petitioners have assailed their being implicated for offences punishable under Section 186/5061 323/353/34, Indian Penal Code (In short IPC). The circumstances leading to their implication are that atBhairon Road-Mathura.Road T'Pouit Costable Hukam Singh was assaulted and criminal force was used and other police officials who arrived at the spot were insulted. Constable Hukam Singh's statement was recorded which ultimately became the FIR. Challan was filed. The learned Metropolitan Magistrate (in short 'MM') took cognizance. It is against the order of summoning and charge that the present petition has been filed. The order of taking cognizance by the learned M.M. has been assailed primarily on the ground that there is a complete bar under Section 195 of the Code of Criminal Procedure (In short the Cr.P.C.) for taking cognizance of an offence punishable under Section 186, Indian Penal Code by the Court. The grievance of the petitioners is that no written complaint as envisaged under Section 195, Criminal Procedure Code . was submitted by Constable Hukam Singh. His statement was under Section 161 Criminal Procedure Code . and not a written complaint. The said statement under Section 161 Criminal Procedure Code . cannot be equated or treated at par to a written complaint stipulated under Section 195 Criminal Procedure Code . No cognizance under Section 195 Criminal Procedure Code . could be taken in the absence of proper written complaint. Hence any action by the Trial Court is bad and liable to be set aside.

(2.) To appreciate the challenge we must have quick glance to the material and necessary facts of this case which are relevant for;the determination of the points raised by Mr.K.B.Andley, Advocate for the petitioner. According to the prosecution, on 14th July,1994 at about 6.20 p.m.two Maruti Cars bearing NO.DL- 2CA-6745 and DL-2CB-9998 stopped at the T-Point of Mathura Road, Bhairon Road. From Maruti Car No.DL-2CB-9998 two persons i.e. present petitioners came out and attacked two boys whose name subsequently came to know as Yogender and Gyanender. They were sitting in Car No.DL-2CA- 6745. Petitioners started beating those boys with kicks and fists. Those boys Yogender and Gyanender came towards Constable Hukam Singh who was regulating the traffic at the T-Point as on that day there was Congress Rally. While those boys of Car No.DL-2CA-6745 were coming towards the Constable, the present petitioners followed them and gave them beatings in the presence of Constable Hukam Singh who tried to intervene in order to prevent petitioners from giving beatings. But the petitioners caught his collar and with a jerk tore his uniform shirt and two top buttons of his shirt also broke. Petitioner No.2 threatened Constable Hukam Singh not to intervene otherwise he would be taught a lesson. He would be thrown on the road and would be torn apart. Receiving report that Constable Hukam Singh bad been assaulted, ASI Hardeep Singh, Zonal Officer arrived at the spot. He also tried to intervene but petitioner No.2 lifted his hand which hit the spectacles of the ASI and the same fell down and broke. Two more constables patroling on the motor cycles also arrived there and intervened in the matter. To them petitioners insulted by abusing. It is in this background that the statement of Constable Hukam Singh was recorded under Section 161 Criminal Procedure Code .. On these facts the petitioners were challaned and the FIR was registered.

(3.) A perusal of the above facts show that petitioners had no intention to prevent or deter either Constable Hukam Singh or other police oficials from discharging their duties as public servants. These facts point out that petitioners in fact were fighting with Gyanender and Yogender when Constable Hukam Singh intervened and consequently his shirt was torn. It is an admitted fact on record that petitioners were not armed nor intended to assault or use criminal force against the public servants. They were following Yogender and Gyanender Kumar when Constable Hukam Singh tried to intervene. It is in that fight. Constable Hukam Singb was assaulted by the petitioners and the other police officials were abused by the petitioners. From these facts no intention on the part of the petitioners can be inferred that they wanted to prevent or deter Constable Hukam Singh or for that matter ASI in discharge of their official duties. Mr.R.DJoBy, counsel for the State when confronted with these facts fairly conceded that public servant were not prevented or detered in discharge of thair public duties. Therefore, prima facie no case under Section 353 as such can be said to have been made out from the facts of this case.