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Himachal Pradesh High Court · body

2000 DIGILAW 88 (HP)

SADA RAM v. STATE OF H. P.

2000-04-19

M.R.VERMA

body2000
JUDGMENT M. R. Verma, J. (Oral): Since these four revision petitions arise out of the order dated 3.3.2000 passed by the learned Addl. Sessions Judge, Solan, in Sessions Trial No. NL/7 of 2000, titled State versus Hari Ram & others therefore, are disposed of by a common order. The relevant facts, briefly stated, are that Kumari Phullan Devi, a student of 4th class, aged about 9 to 12 years, was taken by accused Hari Ram, a teacher to Primary School, Nand to attend the tournament there. On 6.10.1999 at about 7 P.M. the said accused took Kumari Phullan Devi to a lonely room of the house where the participants in the tournament were staying and subjected her to forcible sexual intercourse and further threatened her to beat in case she narrated the occurrence to anyone. After the occurrence, Kumari Phullan Devi met Veena Chauhan (accused-petitioner in Criminal Revision No. 37/2000 and referred to as accused hereafter) and narrated the occurrence to her and also to accused Sarwan Singh (accused-petitioner in Criminal Revision No.38/2000 and reterred to as accused hereafter). Accused Veena Chauhan and Sarwan Singh assured Phullan Devi that they would take action against accused Hari Ram. Thereafter the occurrence was narrated by the prosecutrix to her friends Reena, Pushpa and also to accused Raj Kumari and Jasbir (petitioner-accused in Criminal Revision No. 36/2000). Accused Jasbir and Raj Kumari also assured the prosecutrix Phullan Devi that they would inquire about the matter from accused Hari Ram. Accused Raj Kumari asked the prosecutrix to wash her clothes. Nothing happened in the matter at the behest of the accused petitioners and the matter was subsequently brought to the notice of the mother of the prosecutrix and as a result, the occurrence was reported to the police vide statement of the prosecutrix under Section 154 Cr. P.C. recorded by the officer incharge, Police Station, Nalagarh. Since the occurrence took place within the jurisdiction of Police Station, Ram Shahar, therefore, the said statement was forwarded to Police Station, Ram Shahar where a formal FIR No.42/1999 dated 11.10.1999 under Sections 376,201,176 IPC was registered. 2. On conclusion of the investigation and on being satisfied of the commission of offences punishable under Section 376,201,176 and 506 IPC, the officer incharge, Police Station, Ram Shahar forwarded a charge sheet against the accused persons including the accused- petitioners to the concerned Court. 3. 2. On conclusion of the investigation and on being satisfied of the commission of offences punishable under Section 376,201,176 and 506 IPC, the officer incharge, Police Station, Ram Shahar forwarded a charge sheet against the accused persons including the accused- petitioners to the concerned Court. 3. The case, on assignment, is now pending in the Court of the learned Addl. Sessions Judge, Solan for disposal. 4. By the impugned order, the learned Addl. Sessions Judge has directed framing of the charges against the present accused-petitioners under Sections 201 and 176 IPC and pursuant to the said order, charges have been so framed against them to which they have pleaded not guilty. 5. Aggrieved by the order directing framing of the charges against them and framing of the charges, the accused-petitioners have preferred the present revision petitions on the grounds that there is no evidence whatsoever against the accused-petitioners to suggest their involvement in the commission of the offences punishable under Sections 201 and/or 176 IPC. 6. I have heard the learned counsel for the accused petitioners and the learned Addl. Advocate General for the State and have also gone through the records. 7. Section 176 IPC reads as follows: “176. Omission to give notice or information to public servant by person legally bound to give it: Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. or, if the notice or information required to be given is required by an order passed under sub-section (1) of Section 565 of the Code of Criminal Procedure 1898 (5 of 1898) with imprisonment of either description for a term which may extend to six months, or with the five which may extend to one thousand rupees, or with both. 8. As is, thus, plain from a bare reading of the aforesaid provisions, to constitute an offence punishable Under Section 176 IPC, the following ingredients are required to be established: (1) That the accused was under legal obligation to furnish information to any public servant. (2) That he omitted to furnish it. (3) That his omission was intentional. To which may be added the following aggravating circumstances: (4) That the notice or information was as respects the commission of offence; or (5) was required for purpose of preventing the commission of offence; or (6) for the apprehension of an offender. 9. Thus, the basic requirement to constitute an offence punishable under Section 176 IPC is that the accused must have omitted to furnish such notice/information which he was under legal obligation to furnish to any public servant. 10. There is no provision in law except Sections 39 and 40 Cr. P.C. which casts a duty on every or a specified person to give information of the commission of. the offence to the police. 11. Section 39 of the code of Criminal Procedure reads as follows: "39. 10. There is no provision in law except Sections 39 and 40 Cr. P.C. which casts a duty on every or a specified person to give information of the commission of. the offence to the police. 11. Section 39 of the code of Criminal Procedure reads as follows: "39. Public to give information of certain offences: (1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely:- (i) Sections 121 to 126, both inclusive, and Section 130(that is to say, offences against the State specified in Chapter VI of the said code); (ii) Sections 143,144,145,147 and 148 (that is to say, offences against the public tranquility specified in chapter VIII of the said code); (iii) Sections 161 to 165-A both inclusive (that is to say, offences relating to illegal gratification); (iv) Sections 272 to 278 both inclusive (that is to say, offences relating to adulteration of food and drugs etc.); (v) Sections 302,303 and 304(that is to say, offences affecting life); ; (vi) Section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft); (vii) Sections 392 to 399, both inclusive, and Section 402 (that is to say, offences of robbery and dacoity); (viii) Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.) (ix) Sections 431 to 439, both inclusive (that is to say, offences of mischief against property); (x) Sections 449 and 450 (that is to say, offence of house tres-pass); (xi) Sections 456 to 460, both inclusive (that is to say, offences of lurking house tres-pass); and (xii) Sections 489-A to 489-E, both inclusive (that is to say, offences relating to currency notes and bank notes), shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention. (2) For the purpose of this section, the term "offence" includes any act committed at any place out of India which would constitute an offence if committed in India." 12. (2) For the purpose of this section, the term "offence" includes any act committed at any place out of India which would constitute an offence if committed in India." 12. No doubt, the aforesaid Section casts a duty on every person to forthwith give information to the nearest Magistrate or police officer of the commission or intention to commit any of the offences specified therein. However, the offences punishable under Sections 376 or 201 or 506 IPC are not included in this Section. 13. Section 40 of the Code of Criminal Procedure reads as follows: "40. However, the offences punishable under Sections 376 or 201 or 506 IPC are not included in this Section. 13. Section 40 of the Code of Criminal Procedure reads as follows: "40. Duty of officers employed in connection with the affairs of a village to make certain report: (1) Every officer employed in connection with the affairs of a village and every person residing in a village shall forthwith communicate to the nearest Magistrate or to the officer in charge of the nearest police station, which-ever is nearer, any information which he may possess respecting - (a) the permanent or temporary residence of any notorious receiver or vendor of stolen property in or near such village; (b) the resort to any place within, or the passage through, such village of any person whom he knows or reasonably suspects, to be a thug, robber, escaped convict or proclaimed offender; (c) the commission of, or intention to commit, in or near such village any non-bailable offence or any offence punishable under Section 143, Section 144, Section 145, Section 147, or Section 148 of the Indian Penal Code (45 of 1860); (d) the occurrence in or near such village of any sudden or unnatural death or of any death under suspicious circumstances or the discovery in or near such village of any corpes or part of a corpse, in circumstances which lead to a reasonable suspicion that such a death has occurred or the dis-appearance from such village of any person in circumstances which lead to a reasonable suspicion that a non- bailable offence has been committed in respect of such person (e) the commission of, or intention to commit at any place out of India near such village any act which, if committed in India, would be an offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely 231 to 238(both inclusive) 302,304,382,392 to 399 (both inclusive) 402,435,436,449,450,457 to 460 (both inclusive), 489-A 489-B, 489-C and 489-D; (f) any matter likely to affect the maintenance of order or the prevention of crime or the safety of person or property respecting which the District Magistrate, by general or special order made with the previous sanction of the State Government, has directed him to communicate information. (2) In this section: (i) "village" includes villagen-lands; (ii) The expression "proclaimed as an offender by the Court or authority in any territory in India to which this code does not extend, in respect of any act which if committed in the territories to which this code extends, would be an offence punishable under any of the following sections of the Indian Penal code (45 of 1860), namely 302,304,382392 to 399 (both inclusive), 402,435,436,449,450 and 457 to 460 (both inclusive); (iii) the words "officer employed in connection with the affairs of the village" means a member of the Panchayat of the village and includes the headman and every officer or other person appointed to perform any function connected with the administration of the village." A bare reading of the aforesaid provisions makes it clear that Section 40 of the Code casts a duty on every officer employed in connection with the affairs of a village and every person residing in a village to forthwith communicate to the nearest police station the information which he may possess about the commission of the offences as specified therein. The section, no doubt casts a duty on every officer employed in connection with the affairs of a village and every person residing in a village to give any information which he may possess respecting the commission of or intention to commit in or near such village any non bailable offences apart from other specified offences but such a legal obligation is confined only to such officer and the resident of the, concerned village and to none else. Therefore, a person aware of the commission of offences punishable under Sections 376,201 or 506IPC is not legally bound under Section 39 of the Cr. P.C. to give information about the commission of such offence to the nearest Magistrate or the police officer. Therefore, if such a person omits to give the information about the commission of such offences to the Magistrate or the police officer, he cannot be said to be guilty of the commission of an offence punishable under Section 176 IPC, for the simple reason that he is not bound to give information about such commission or intention within the scope of Section 39 of the code. Similarly, a person, who is neither an officer employed in connection with the affairs of a village nor is a person residing in the village is not obliged to give information which he may possess respecting the commission of any offence specified in Section 40. 14. In this case, the learned Addl. Sessions Judge has directed framing of a head of charge under Section 176 IPC against the accused-petitioners on the ground that they did not give information about the commission of the alleged offence to the nearest Magistrate or police officer. Be it stated that neither the accused-petitioners are officers employed in connection with the affairs of a village nor they are residents of the village where the offence is alleged to have been committed nor the offences alleged to have been committed are those specified in Section 39 of the Code, therefore, the accused-petitioners were not legally bound to give information of the commission of the alleged offences by accused Hari Ram to the nearest Magistrate or the concerned police officer. Thus, the omission on their part does not amount to an offence punishable under Section 176IPC. 15. Section 201 of the Indian Penal Code reads as follows: "201.Causing disappearance of evidence of offence, or giving false information to screen offender. Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which He knows or believes to be false. Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which He knows or believes to be false. If a capital offence; shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; If punishable with imprisonment for life; and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; If punishable with less than ten years imprisonment.- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence or with fine, or with both," 16. To sustain a charge under Section 201 IPC, the following ingredients are required to be established: (1) Commission of an offence. (2) That the accused- (a) caused any evidence of the commission of the offence to disappear, or (b) gave any information respecting the offence which he then know or believed to be false. (3) That the accused then know or had reason to believe that the offence had been committed.(4) That he did as in (2) with the intention of screening the offender from legal punishment. To these may be added the following in proof of aggravation: (5) That the offence in question was punishable with death or with imprisonment for life, or with imprisonment extending to ten years." 17. In the instant case, to sustain a charge under section 201 IPC against the accused-petitioners, the allegations against them are that accused Sada Ram petitioner-accused in Cr. Rev. In the instant case, to sustain a charge under section 201 IPC against the accused-petitioners, the allegations against them are that accused Sada Ram petitioner-accused in Cr. Rev. No. 35 of 2000) had a meeting with other petitioners and accused persons and in the said meeting accused Hari Ram admitted his mistake in writing but the accused with a view to conceal the commission of the offence manipulated an order of deputation of accused Hari Ram. There is material on record to prima-facie show that accused Plan Ram admitted having misbehaved with Kumari Phullan Devi and had regretted the same at the time of the alleged meeting on 6.10.1999. This writing has not been destroyed but has been preserved and as a consequence, main accused Hari Ram had been shifted from the school where Kumari Phullan Devi was a student to a different school. There is nothing on record to suggest that the removal order of Hari Ram from the concerned school to a different school was with intention to destroy any evidence against him. If on his admission of the mistake he has been removed from the school where the prosecutrix was a student, there is nothing illegal in it. On the contrary, thereby accused Hari Ram had been disabled from in any manner influencing the prosecutrix. Apart from this, there is no specific or implied allegation whatsoever against the accused- petitioners that they in any manner tried or caused dis-appearance of any evidence relevant and material to the case against accused Hari Ram. Thus, the material on record does not prima-facie disclose that the accused-petitioners cause any evidence of the commission of the alleged offences to dis-appear with the intention of screening Hari Ram accused from legal punishment or with such intention give any information to the concerned authorities respecting the commission of the alleged offences which they know or believed to be false. Hence, there is no material to frame a head of charge under Section 201 IPC against the accused persons. 18. As seen above, there are no grounds for presuming that the accused persons had committed offences punishable under Sections 201 or 176 of the Indian Penal Code. Therefore, the impugned order is un- sustainable. 19. As a result, these revision petitions are allowed and impugned order is set aside and the accused-petitioners are discharged. 20. 18. As seen above, there are no grounds for presuming that the accused persons had committed offences punishable under Sections 201 or 176 of the Indian Penal Code. Therefore, the impugned order is un- sustainable. 19. As a result, these revision petitions are allowed and impugned order is set aside and the accused-petitioners are discharged. 20. Since the case is listed for recording evidence by the learned Additional Sessions Judge, Solan at camp Nalagarh on 20.4.2000 and thereafter on day to day basis, therefore, the return of the records to the concerned Court so as to be available at the time of the recording of the evidence, be ensured.