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2004 DIGILAW 143 (HP)

SANTOSHI DEVI v. CHAUDHARY RAM

2004-07-07

K.C.SOOD

body2004
JUDGMENT Kuldip Chand Sood, J.—This petition, under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, is directed against the orders made by the learned Sub-Divisional Judicial Magistrate, Sarkaghat, Distt. Mandi, dated 10.12.2003, whereby in an appeal filed by the petitioner, under Section 67 of the H.P. Panchayati Raj Act, 1994, her conviction for offences punishable under Sections 283 and 427 of the Indian Penal Code was upheld. 2. It appears Chaudhary Ram respondent laid a complaint before the Gram Panchayat Bakarta, Tehsil Sarkaghat, Distt. Mandi, alleging therein that on 1.7.2002 petitioner Santoshi Devi and one Suresh Kumar stopped carriage of Sand and Bajri of respondent Chaudhary Ram, through a path. This construction material was being carried by Chaudhary Ram on mules of one Diwan Chand to his house. It was also alleged that Santoshi Devi and Suresh Kumar quarreled with the complainant. Relevant part of the complaint reads: "..............Today on 1.7.2002 Sh. Diwan Chand, mule owner came with sand and Bajri and he was restrained by Santoshi Devi and Suresh Kumar on the path and these people have been quarreling with us in respect of the path which fact is known to you....." 3. The petitioner Santoshi Devi and Suresh Kumar were summoned by the Panchayat for 10.7.2002. On that date the complaint was read to both the accused. Petitioner Santoshi Devi admitted the complaint but Suresh Kumar denied it, as is recorded in the orders of Panchayat dated 10.7.2002. On that very day, statements of the complainant, petitioner Santoshi Devi and Suresh Kumar were recorded. Statement of one witness Diwan Chand, owner of the mule, was also recorded. The Gram Panchayat by its order of the same date convicted the petitioner for offences punishable under Sections 283 and 427 of the Indian Penal Code and imposed fine of Rs. 90 for the offences. However, acquitted accused Suresh Kumar. The Panchayat also directed the petitioner to pay Rs. 400 as damages to Diwan Chand. 4. Aggrieved the petitioner filed an appeal under Section 67 of the H.P. Panchayati Raj Act, 1994 before the learned Sub Divisional Judicial Magistrate, Sarkaghat, Distt. Mandi. The appeal of the petitioner was partly allowed. The conviction and sentence imposed upon the petitioner for offences punishable under Sections 283 and 427 of the Indian Penal Code was maintained. However, damages awarded to Diwan Chand were set aside. Mandi. The appeal of the petitioner was partly allowed. The conviction and sentence imposed upon the petitioner for offences punishable under Sections 283 and 427 of the Indian Penal Code was maintained. However, damages awarded to Diwan Chand were set aside. 5. Still dis-satisfied the petitioner filed the present petition on the ground that a grave injustice has taken place in the conviction of the petitioner on the face of the record. 6. I have heard Mr. Guleria, learned Counsel for the petitioner and Mr, Lovneesh Kanwar, learned Counsel for the respondent. 7. I am of the view that the petitioner is not connected either with offence punishable under Section 283 or with offence punishable under Section 427 of the Indian Penal Code and her conviction for these offences has resulted in manifest injustice and wrong to the petitioner. So far Section 283 of the Code is concerned, it refers to a person who does an act so as to cause danger, obstruction or injury to any person in any public way or public line of navigation. Necessary ingredient of this provision is that : "a person by doing an act or omission causes danger, obstruction or injury to any person in any public line or line of navigation.” 8. It was therefore necessary for the complainant to plead and prove that obstruction was caused on a "public way" or public path. Public way is a way or path which is common to every body or user is not confined to a particular Section of the community. A public way which lies over a private land and may be in use by the villagers and by the inhabitants of some other villages, but regarding which there is no evidence of universal user, then such public path will not be a public way within the meaning of Section 283 of the Code. In the present case, there is no plea in the complaint made by the complainant, that the path, in which carriage of construction material was obstructed, is a public path. There is, admittedly, no evidence whatsoever to this effect. The path in question is not even recorded in the revenue record. 9. In the present case, there is no plea in the complaint made by the complainant, that the path, in which carriage of construction material was obstructed, is a public path. There is, admittedly, no evidence whatsoever to this effect. The path in question is not even recorded in the revenue record. 9. In this view of the matter, conviction of the petitioner for having obstructed carriage of construction material on the path, under Section 283 of the Indian Penal Code was illegal and beyond the scope of Section 283 of the Code. 10. So far conviction under Section 427 of the Indian Penal Code is concerned, this Section provides punishment who commits mischief and thereby cause loss or damage to the amount of Rs. 50 or more. Section 425 of the Indian Penal Code defines mischief. Section 425 of the Code reads: "425. Mischief.—Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief”. Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly." 11. One of the necessary ingredients of mischief is to cause destruction of some property or any change in it or its situation destroying or diminishing its value or utility or affecting it injuriously. In the present case, there is neither any allegation in the complaint that any property was either destroyed or a change was caused in it or its value or utility was diminished nor there is any allegation that wrongful loss has been caused to any person. In fact no evidence has been led to this effect. In the present case, there is neither any allegation in the complaint that any property was either destroyed or a change was caused in it or its value or utility was diminished nor there is any allegation that wrongful loss has been caused to any person. In fact no evidence has been led to this effect. The allegation made in the complaint was only to the extent that Diwan Chand owner of the mule was obstructed from carrying construction material on mule on the path. The conviction of the petitioner for having committed mischief was totally uncalled for and is illegal and even beyond the allegations made in the complaint. Learned Magistrate dismissed the appeal of the petitioner without application of mind. 12. This apart, it is settled position of law that even if formal charge is not required to be framed against an accused, the accused has to be apprised of the accusation against him or her, with a clear statement of the particulars of the offence or offences, as the case may be, so as to enable the accused to know what precise charge or accusation he or she is to meet. Such particulars also must contain ingredients of offences for which such an accused is sought to be punished. See Shiv Ram and others v. State of H.P. Latest HLJ 2002 (HP) 612. Rule 51 (Chapter IV) of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 clearly lays down that the concerned Gram Panchayat while trying a criminal case is obliged to explain to the accused charge or charges made against him/her. 13. In the present case, Gram Panchayat merely read over the complaint to the petitioner-accused without explaining as to what precise charge the petitioner was required to meet or answer. 14. Conviction recorded by the Gram Panchayat for offences punishable under Sections 283 and 427 of the Indian Penal Code, as affirmed by the learned Sub Divisional Judicial Magistrate, Sarkaghat, Distt. Mandi, by his impugned judgment is illegal and dehors the provisions of the law which has resulted in grave miscarriage of justice. The conviction, therefore, cannot be sustained. 15. In result the petition is allowed. Conviction of the petitioner for offences punishable under Sections 283 and 427 of the Indian Penal Code, as recorded by the Gram Panchayat and affirmed by the leaned Sub. Divisional Judicial Magistrate, Sarkaghat, Distt. The conviction, therefore, cannot be sustained. 15. In result the petition is allowed. Conviction of the petitioner for offences punishable under Sections 283 and 427 of the Indian Penal Code, as recorded by the Gram Panchayat and affirmed by the leaned Sub. Divisional Judicial Magistrate, Sarkaghat, Distt. Mandi, by his impugned judgment dated 10.12.2003 is set aside. The petitioner stands acquitted. Fine, if realized from the petitioner, shall be refunded to her within a period of four weeks, from today. , Cr.M.P. No. 36 of 2004 16. In view of the order passed in the main petition, this application does not survive and stands disposed of. Interim order dated 16.1.2004 is vacated. Petition allowed.