Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 502 (PAT)

Satyendra Singh v. State Of Bihar

2001-06-29

INDU PRABHA SINGH

body2001
Judgment I.P.Singh, J. 1. This is an application under Sections 397 and 401 of the Code of Criminal Procedure. 1973 (in short, "the Code"). It is directed against the judgment and order dated 2.2.1998 passed by Shri Subash Kumar Singh,10th Additional District and Sessions Judge, Rohtas (Sasaram) in Cr. Appeal No. 227 of 1998 dismissing the same. This appeal was directed against the judgment and order dated 30.9.196 passed by Shri Prem Kumar Ojha, Judicial Magistrate, Second Class, Sasaram (Rohtas) in Tr. No. 376/93, G.R. No. 1072/90 whereby and where nder the learned Magistrate while acquitting the petitioner of the charge under Section 353 of the Indian Penal Code convicted him under Sections 448 and 504 of the Indian Penal Code and sentenced him to undergo simple imprisonment for six months each under the aforesaid sections. Both the sentences were ordered to run concurrently. 2. The prosecution case, in short, is that on 13.7.1990 at about 10.30 a.m. while the informant. Ajay Shekhar (PW4), Block Development Officer. Sheosagar Block was performing his duties in his official chamber, the petitioner came there with a loan application for the purchase of a tractor and asked him to sign the same. PW 4, asked the petitioner firstly to get this application forwarded by the Block Agriculture Officer after which only he could entertain the same. This infuriated the petitioner who used abusive language against PW 4 and also put hinderance in discharge of his official duty. PW 4 submitted a written report (Ext. 4) to the Police on the basis of which Sheosagar P.S. Case No. 82/ 90 under Sections 448. 353 and 504 of the Indian Penal Code was instituted. After completing the investigations the Police submitted the charge-sheet under the aforesaid sections. 3. In course of the trial seven PWs were examined in this case. Out of them PW 7 was declared hostile. The I.O. of this case has not been examined. On behalf of the petitioner it has been submitted that there is a total lack of objective evidence to prove the charges against the petitioner. There is nothing in the evidence of PW 4 to show the actually which abusive words were used against him by the petitioner which were provocative in nature endangering the peace. Hence no case under Section 504 of the Indian Penal Code has been made out against the petitioner. There is nothing in the evidence of PW 4 to show the actually which abusive words were used against him by the petitioner which were provocative in nature endangering the peace. Hence no case under Section 504 of the Indian Penal Code has been made out against the petitioner. The actual words alleged to be used by the petitioner have also not been disclosed by the PW 5. the only other eye-witness of the alleged occurrence. So far as PW 6 is concerned the reached near the. chamber of PW 4 after the alleged occurrence was over. It has further been contended that the mandatory provisions of Sections 360 and 361 of the Code have not been complied with. No case under Sections 448 and 353 of the Indian Penal Code could be made out against the petitioner. On these grounds amongst others he has contended that the judgment of conviction passed by the trial Court and upheld on appeal by impugned judgment be set aside and he be acquitted. 4. On behalf of the State, it has been submitted that the grounds taken by the petitioner are not correct. It has been pointed out by the learned APP that there is concurrent findings of both the courts below with respect to making out of the case under Sections 448 and 504 of the Indian Penal Code against the petitioner. The evidence on record is consistent and at this revisional stage this Court is not expected to interfere with concurrent findings of facts by the two courts below. 5. The parties have been heard at length with respect to the submissions made by them. From the facts it appears that the present petitioner was convicted under Sections 504 and 448 of the Indian Penal Code and was sentenced to undergo imprisonment. On appeal learned Additional Sessions Judge upheld the conviction and sentence. The petitioner has now come forward before this Court in criminal revision application under Sections 397 and 401 of the Code. On behalf of the learned APP it has been submitted that at this stage the findings of the two Courts below which are a concurrent in nature should not be disturbed. The petitioner has now come forward before this Court in criminal revision application under Sections 397 and 401 of the Code. On behalf of the learned APP it has been submitted that at this stage the findings of the two Courts below which are a concurrent in nature should not be disturbed. He has taken pain to point out that the scope of revision application is limited and this cannot be treated to be an appeal against the judgment and order passed by the learned Additional Sessions Judge on appeal. Since this question has been raised before me I think it proper to deal with it and to find out the law on the subject. In this connection a reference may be made to the case of State of Orissa V/s. Nakula Sahu and others, AIR 1979 SC 663 . In this case the respondents were convicted and sentenced by the sub-Divisional Magistrate in 1963. On appeal the learned Sessions Judge upheld the judgment of conviction and sentence passed by the learned Magistrate. On revision the High Court set aside the judgment of conviction passed by the trial Court as well as the appellate Court and acquitted all the respondents. The matter was taken on appeal before the Hon ble Supreme Court wherein it was held as follows : "It is well settled that normally the jurisdiction of the High Court under Section 439 (Old) is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice." In this decision reliance was placed on the cases of Akalu Ahir and others V/s. Ramdeo Ram, 1972 (2) SCC 583 and Amar Chand Agarwalla V/s. Shanti Bose and another, 1973 (4) SCC 10 . In the case of Akalu Ahir (supra), it has been held that inspite of the wide language of Section 435 (397 New) of the Code of 1898 which empowered the High Court to satisfy itself as to the correctness legality and propriety of any finding, sentence or order recorded or passed by any inferior criminal court and inspite of fact that under Section 439 (Old) it can exercise the power of a Court of appeal under Section 423 (Old), it can exercise the power of appeal under Section 423 (Old) Sections 385 and 386 (New), the High Court is not expected to act under Sections 435 or 439 as if it is hearing an appeal. It was further held in this case this power being discretionary in nature has to be exercised judiciously and not arbitrarily or lightly. In this case neither the trial Court nor the Sessions Court had committed any error of fact or law, the High Court, however, directed the upsetting concurrent findings of two Courts ignoring the well recognised principle for the exercise of the revisional powers. Under the aforesaid circumstances the observations as noted about have been made by the Hon ble Supreme Court. From the law as noted above on the subject it would appear that the scope of the revision application is extremely limited and it should not be treated to be an appeal under any circumstance. 6. In this case, the petitioner has been convicted under Sections 448 and 503 of the Indian Penal Code. I will firstly take up for consideration the allegations against the petitioner under Section 448 of the Indian Penal Code. Section 448 deals with the punishment for house trespass. In this connection I will firstly refer to Section 441 of the Indian Penal Code which deals with criminal trespass. It runs as follows : "441. Criminal trespass. I will firstly take up for consideration the allegations against the petitioner under Section 448 of the Indian Penal Code. Section 448 deals with the punishment for house trespass. In this connection I will firstly refer to Section 441 of the Indian Penal Code which deals with criminal trespass. It runs as follows : "441. Criminal trespass. Whoever entered into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy and person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit criminal trespass." Section 442 of the Indian Penal Code describes house trespass according to which whoever commit criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship or as a place for the custody of property is said to commit "house trespass". As per the explanation given in this section even entry of any part of the criminal trespassers body is sufficient to constitute house trespass. Section 446 of the Indian Penal Code prescribes the punishment for house trespass. I have summed up the law on the subject in order to find out where the offence under Section 448 of the Indian Penal Code has been made out against the petitioner or not. 7. According to the case of the prosecution (PW 4) who happened to be the Block Development Officer at the relevant time was sitting in his office at 10.50 a.m. and was discharging his duties. It was at that particular point of time that the petitioner went to his office and asked him to put his signature on a application for loan to purchase a tractor. On behalf of the petitioner it has been submitted that the office of the petitioner is a public place to which any person can enter. No doubt the office of the Block Development Officer is assessable to the public at large who may come there for some legitimate reasons. On behalf of the petitioner it has been submitted that the office of the petitioner is a public place to which any person can enter. No doubt the office of the Block Development Officer is assessable to the public at large who may come there for some legitimate reasons. However, as noticed in the definition of the criminal trespass as given in Section 441 of the Indian Penal Code, the offence is complete even when a person having lawfully entered into the premises, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person commits an offence of criminal trespass. Hence I do not find any force in the contention of the learned counsel for the petitioner that since the office of PW 4 was a public place any body has a right to enter into the same and, therefore, no offence under Section 448 of the Indian Penal Code was made out against the petitioner. Even if it be presumed for a moment that the petitioner had effected his entry in the office of PW 4 for any lawfully purpose the very fact that he used abusive language against PW 4 to intimidate, insult or annoy him will clearly go to show that offence punishable under Section 448 of the Indian Penal Code has been made out against him. Thus, I do not find any force in contention of the learned counsel for the petitioner that no case under Section 448 of the Indian Penal Code has been made out against the petitioner and that he has wrongly been convicted under this section by the trial Court and his conviction under this section has wrongly been upheld by the learned Lower Appellate Court. 8. The petitioner has also been convicted under Section 504 of the Indian Penal Code. This section deals with the offence of intentional insult with intent to provoke breach of the peace. It lays down that whoever intentionally insults and thereby gives provocation to any person intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years; or with fine, or with both. On behalf of the petitioner it has been submitted that spice the specific words used against PW 4 has not been mentioned by the prosecution, the case under Section 504 of the Indian Penal Code is not made out against him. This takes up to the consideration of the essential ingredients of Section 504 of the Indian Penal Code. They are as follows : (a) A person intentionally insults any person. (b) He thereby gives provocation to that person. (c) He iritends or knows it to be likely that such provocation will cause him. (i) to break the public peace; or (ii) to commit any other offence. As per the charge to be framed under this section the actual words used by the accused has to be set out in the charge by which he intentionally insulted and thereby gave provocation to any person. It is well settled by judicial decisions that in order to prove the charge under Section 504 of the Indian Penal Code the actual words used by the accused has to be mentioned in the charge framed against him so that he may be in a position to meet any such allegation. 9. In this connection it may be mentioned that earlier under Old Code the offence under Section 504 was to be tried as a warrant case. However, under the new Code since the punishment under Section 504 is only imprisonment for two years or fine or both it will come within the definition of summons case as mentioned as per Section 2(w) of the Code. So far as the offence under Section 448 of the Indian Penal Code is concerned this is also triable as a summons case inasmuch as a punishment for only one year imprisonment has been prescribed for this offence. The same is the case under Section 353 of the Indian Penal Code in which the punishment prescribed is only imprisonment for two years. It is under this circumstance that the present case was treated to be a summons case by the learned trial Court and procedure for the trial for the summons case was followed according to which no formal charge as required to be framed. It is under this circumstance that the present case was treated to be a summons case by the learned trial Court and procedure for the trial for the summons case was followed according to which no formal charge as required to be framed. However, the ingredients to constitute the offence under Section 504 of the Indian Penal Code remains the same namely in order to constitute the offence under this section the actual words used by the accused has to be alleged against him. In this connection a reference may be made to the case of B.R. Meena V/s. Mangal Das Chiman Lal Barot and another, 1987 Supp SCC 597. In this case the Hon ble Supreme Court while considering whether the offence under Section 504 of the Indian Penal Code could be made out against the accused or not has held as follows : "the prosecution evidence does not make out the ingredients of offence under Section 504. The mere utterance of abusive words without more does not constitute an offence under the section. The essential requirements are that the accused must intentionally insult and such insult must give provocation to any person and further that he must have the requisite knowledge that such provocation will result in breach of public peace or commission of any other offence." A similar view has been taken by our High Court in a earlier decision in the case of Kishori Mohan V/s. State of Bihar, 1976 Cr LJ 654 in which the learned Single Judge (J. Narain, J.) has held that merely taking the photograph of the complainant with garland of shoes around his neck was alleged to have been taken by the accused. The photograph was not shown to the complainant nor was made public. There was nothing shown that taking of photograph was such a provocation as to induce the complainant to break the public peace or to commit any other offence. It was held that no offence under Section 504 of the Indian Penal Code was made out. In a recent decision in the case of Ram Chandra Singh V/s. Nabrang Rai Burma, 1998 Cr LJ 2156. the learned Single Judge of Orissa High Court has held that simply the use of abusive language is not sufficient to constitute an offence under Section 504 of the Indian Penal Code. In a recent decision in the case of Ram Chandra Singh V/s. Nabrang Rai Burma, 1998 Cr LJ 2156. the learned Single Judge of Orissa High Court has held that simply the use of abusive language is not sufficient to constitute an offence under Section 504 of the Indian Penal Code. 10 Coming to the facts of the present case, I will firstly refer to Ext. 4 which is the letter dated 13.7.1990 from PW 4 to the Officer-in-charge, Sheosagar Police Station. It is on the basis of this letter that the Police instituted the case and submitted the charge-sheet. In this letter the actual abusive words used against PW 4 have not been mentioned. It has simply been stated in Ext. 4 that the petitioner became enraged and obstructed him in discharge of his official duties and used abusive language against him. The actual words by way of abuse used by the petitioner have not been mentioned in Ext. 4 which is the earliest information with respect to the alleged offence. Now coming to the evidence on record PWs 1, 2 and 3 are formal witnesses. So far as PW 4 is concerned he has stated in paragraph 1 of his evidence that the petitioner got infuriated and asked him immediately to sign the paper otherwise it will not be good for him. Here also the actual abusive words used by the petitioner have not been mentioned by the informant (PW 4). It appears that actually he was only asked to sign the papers failing which the consequences would not be good for him. He has further stated that the petitioner had used abusive language against him but he has not spelt out the actual abusive language used by the petitioner against him. In his cross-examination it was suggested to him that the petitioner had not used any abusive language against him which he has denied. PW 5 is another witness on this point. He is the office peon of PW 4. He has stated that on hulla he went to the chamber of PW 4 where he found that the petitioner was abusing PW 4. He has also not been able to state the actual abusive words used by the petitioner against P,W 4. PW 6 the Head Clerk of the Office of PW 4 has stated that he reached the chamber of PW 4 after alleged occurrence. He has also not been able to state the actual abusive words used by the petitioner against P,W 4. PW 6 the Head Clerk of the Office of PW 4 has stated that he reached the chamber of PW 4 after alleged occurrence. PW 7 has not supported the case of the prosecution and has been declared hostile. 11. So far as the examination of the petitioner under Section 313 of the Code is concerned here also the petitioner was not confronted with the actual abusive words used by him against the petitioner. Thus, to opportunity was given to the petitioner to explain any such allegation against him. On his behalf it has been submitted that the failure of the Court to put the questions with respect to the abusive language used by the petitioner in the course of his examination under Section 313 of the Code has caused serious prejudice to him. I find force in this contention of the learned counsel for the petitioner. If really the petitioner was being tried for an offence also under Section 504 of the Indian Penal Code it was necessary for the Court to put the actual words used by the petitioner in course of his examination under Section 313 of the Code so as to afford him an opportunity to meet any such allegation. This has not been done. Under the aforesaid circumstances it would appeal that the prosecution has not been able to establish the allegations under Section 504 of the Indian Penal Code against the petitioner. In exercise of the revisional jurisdiction, this Court has to examine whether the necessary law on this subject has complied with or not. So far as the necessary ingredients to constitute the offence under Section 504 of the Indian Penal Code are concerned it is clear that they have not been complied with and hence the conviction of the petitioner under Section 504 of the Indian Penal Code cannot be sustained. 12. On behalf of the petitioner it has been contended that his prosecution is bad for non-compliance of Sections 360 and 361 of the Indian Penal Code. It has been pointed out the mandatory provision of Probation of Offenders Act have not been complied with in the present case before awarding the sentence against him. 12. On behalf of the petitioner it has been contended that his prosecution is bad for non-compliance of Sections 360 and 361 of the Indian Penal Code. It has been pointed out the mandatory provision of Probation of Offenders Act have not been complied with in the present case before awarding the sentence against him. However, on the perusal of the judgment of the trial Court it becomes clear that the learned trial Court had taken into consideration whether the provisions of Probation of Offenders Act should be extended to the petitioner taking into consideration the facts and circumstances of this case, the age, and the character to the offender and the circumstances in which the offence is alleged to have been committed. This discussion had taken place before awarding the sentence to the petitioner as will appear from the judgment of the trial Court. So far as the judgment of the lower Appellate Court is concerned in it also I find a discussion in paragraph 18 of the judgment in which the learned lower Appellate Court has held that the appellant did not deserve to be released under the provisions of the Probation of Offenders Act, 1958 since it has become the habit of any person connected with any political party to enter the grass root level Government Offices and to insult and annoy or abuse the Government Servants working there. Thus, under the aforesaid circumstances it cannot be said that he learned courts below have not considered the desirability of extending the provisions of Sections 360 and 361 of the Code or the provisions of the Probation of Offenders Act. Hence I do not find any force in this contention. 13. On behalf of the petitioner it has further been contended that since the I.O. has not been examined in this case the judgment of conviction passed against him cannot be sustained. It. is not in dispute that the I.O. has not been examined. However, non-examination of the I.O. in all cases cannot be said to be fatal for the prosecution. The impact of his non-examination will vary from case to case and it has to be find out whether the impact is fatal or not. So far as the present case is concerned PWs 1, 2 and 3 are formal witnesses. However, non-examination of the I.O. in all cases cannot be said to be fatal for the prosecution. The impact of his non-examination will vary from case to case and it has to be find out whether the impact is fatal or not. So far as the present case is concerned PWs 1, 2 and 3 are formal witnesses. So far as PW 4 is concerned his attention does not appear to have been drawn to any contradiction with respect to his statement said to have been made before the Police. The same is the case of PW 5. As a matter of fact PW 5 has not stated that he was examined before the Police and it was not suggested to him that actually he was so examined. So far as PW 6 is concerned it was not suggested to him that he made any statement before the Police in course of investigation. Hence under the aforesaid circumstances non-examination of the I.O. cannot be said to be fatal in the present case. 14. It appears that the petitioner was also accused of an offence under Section 353 of the Indian Penal Code. The learned trial Court acquitted him of this charge and convicted him only under Sections 448 and 504 of the Indian Penal Code. So far as the learned Lower Appellate Court is concerned in paragraph 16 of its judgment it has observed that it has no jurisdiction to hear the appeal against acquittal of the petitioner under Section 353 of the Indian Penal Code and, therefore, it does not propose to interfere with the finding of the trial Court so far as the offence under this section is concerned. From this observation made by the learned lower Appellate Court it would appear that it was of the view though the offence under Section 353 of the Indian Penal Code was made out against the petitioner it felt helpless in the matter since it was not hearing in appeal against the order of acquittal of the learned trial Court so far as Section 353 of the Indian Penal Code is concerned. 15. This taken up to the consideration of the reasons assigned by the learned trial Court for not convicting the petitioner under this sections. 15. This taken up to the consideration of the reasons assigned by the learned trial Court for not convicting the petitioner under this sections. In paragraph 12(1) of the trial Court judgment the learned Magistrate has held that the petitioner is not liable to be punished under Section 353 of the Indian Penal Code though no specific reasons has been mentioned in it. At this stage while hearing this revision application this question of his acquittal under Section 353 cannot be raised and decided. However, in order to clarify the legal position on the subject for the benefit of the lower Courts it may be mentioned that Section 349 of the Indian Penal Code provides that a person is said to use force to another if he causes motion, change of motion or cessation of motion to that other person. Section 350 of the Indian Penal Code defines criminal force, according to which whoever intentionally used force to any person, without that persons consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. 16. From this definition it would appear that when a person uses force to another person in order to commit any offence or knowing it to be likely that by the use of that force he will cause injury or fear annoyance to other person to whom the force is used is said to use the criminal force. If the criminal force is used to deter a public servant from discharging the duties the offence becomes punishable under Section 353 of the Indian Penal Code. In the present case from the facts as alleged by the prosecution that an offence punishable under Section 353 of the Indian Penal Code was clearly made out against the present petitioner and it was in this back ground that the learned lower Appellate Court has made observation in paragraph 18 of the judgment. In the present case from the facts as alleged by the prosecution that an offence punishable under Section 353 of the Indian Penal Code was clearly made out against the present petitioner and it was in this back ground that the learned lower Appellate Court has made observation in paragraph 18 of the judgment. However, in the present revision application, I do not intend to interfere with the finding of the learned trial Court and my observation made above with respect to the offence under Section 353 of the Indian Penal Code have been made only by way of academic discussion which will not have any hearing with the result of the present revision application. 17. From the detailed discussions made above it becomes clear to me that so far as the offence under Section 448 of the Indian Penal Code is concerned the petitioner has not been able to show any illegality or irregularity in his conviction under this section. So far as offence under Section 504 of the Indian Penal Code is concerned it appears that the same has to fail on account of some technical defect for the reasons stated in the earlier part of the judgment. 18. This revision application is, accordingly, allowed in part in the light of the observations made above and the judgment and conviction of the learned Courts below will stand modified inasmuch as the petitioner is acquitted of the charge under Section 504 of the Indian Penal Code while his conviction and sentence under Section 448 of the Indian Penal Code is maintained.