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2006 DIGILAW 1824 (DEL)

KUSH OHRI v. STATE NCT OF DELHI

2006-10-10

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THESE petitions are taken up together as they relate to the same incident. One is the petition under Section 482 Cr. P. C. which challenges the order dated 01. 11. 2002 and the other is a revision petition which is in respect of order on charge dated 24. 12. 2002. ( 2 ) INITIALLY, a charge-sheet was submitted under Sections 147, 149, 186, 353, 332, 427 IPC. The petitioners were discharged by the trial court by virtue of the order dated 15. 09. 2001. The State preferred a revision against that order and ultimately succeeded inasmuch as the order was set aside by the revisional court by virtue of the order dated 01. 11. 2002. The revisional court had, after setting aside the order on discharge, directed that the matter be placed for arguments and consideration on the question of framing of charges. It is thereafter that on 24. 12. 2002 that the trial court has framed the charges under Section 147, 149, 186, 353, 332, 427 ipc. The revision petition is preferred against this order and the petition under Section 482 cr. P. C. has been preferred against the order dated 01. 11. 2002 by the revisional court. ( 3 ) THE factual background of this case is that the petitioners along with other students of the GTB Medical College were said to be sitting in a peaceful agitation outside their hostel, which has been closed by the hostel authorities. It appears that for some reason the peaceful agitation turned hostile and there was some exchange between the police authority and the student body. Apparently, certain students were said to have become aggressive for which the police authorities had to resort to lob tear gas cells and thereafter to lathi charge. The allegation goes further that upon the lathi charge, the situation was taken under control. In this incident three students and six police officers were said to have received injuries and the three students, who had received the injuries, are petitioners before this court. ( 4 ) MR Hariharan, the learned counsel appearing on behalf of the petitioners submits that the MLCs of the petitioners were first in point of time and it is only thereafter that the mlcs of the police officers were done. ( 4 ) MR Hariharan, the learned counsel appearing on behalf of the petitioners submits that the MLCs of the petitioners were first in point of time and it is only thereafter that the mlcs of the police officers were done. The mlc of the police officers were after 1 hour and 20 minutes of the MLCs of the present petitioners. The incident is said to have taken place on 10. 03. 1999 at about 11. 30 am. ( 5 ) MR Hariharan's main plea was that the inclusion of Section 353 IPC is a mere camouflage inasmuch as the offence under section 186 IPC would require the compliance of Section 195 Cr. P. C, which is absent. He submits that Section 353 IPC has been brought in only to get over this fact that the provisions of Section 195 Cr. P. C. have not been followed. In a case of an offence under Section 186 IPC, the same has to be initiated on the basis of a complaint by the concerned public official who received injury or his immediate superior. This is not there in the present case. Mr Hariharan points out that cognizance has been taken on the challan and not on the complaint. He submits that Section 353 IPC is also not made out because there is no overt act ascribed to the present petitioners of assault or use of criminal force as is the requirement under Section 353 IPC. That being the case, the decision in the case of Durgacharan naik and others Vs. State of Orissa: (1966) 3 SCR is attracted to the extent that the provisions of Section 353 IPC cannot be used as a camouflage or device to circumvent the provisions of Section 195 Cr. P. C. ( 6 ) THE learned counsel for the State was also heard. He supported the order on charge as well as the charge framed. He submits that as per the statements recorded of the witnesses a case under Section 353 IPC and the other offences is made out. He read the 161 statements of the witnesses to indicate that there was a clash between the students and the police authorities and in that clash some students, namely, the present petitioners and the six police officials received injuries. He read the 161 statements of the witnesses to indicate that there was a clash between the students and the police authorities and in that clash some students, namely, the present petitioners and the six police officials received injuries. According to Mr Sharma, who appeared on behalf of the State, it is the petitioners who were playing a more active role than the others and, therefore, all the offences for which they have been charged, were made out. ( 7 ) I have considered the arguments advanced by the counsel for the parties and I have also examined the statements recorded under Section 161 Cr. P. C as well as the statement of the first informant, Sub- inspector Khemender Pal. I find that at the highest the case against the petitioners is that they were present in the Dharna and that in a lathi charge, they were injured. There is no statement of any of the witnesses which shows that these persons,. e, the accused, were responsible for any specific act of assault or use of criminal force. In fact, no specific overt act has been ascribed to the petitioners. Therefore, if the prosecution case is taken to be proved and established, all that is proved, is that the petitioners were present at the scene and that they received injuries. From what is available on the record, it cannot be established that it is the petitioners who caused injuries to the six police personnel. Neither can it be established that they were responsible for any overt act, which would amount to an assault or use of criminal force. ( 8 ) IN these circumstances, I am of the view that the petitioners are entitled to be discharged of all the offences. Accordingly, the revision petition is allowed. The petitioners are discharged. The petition under Section 482 Cr. P. C. has become infructuous and is disposed of as such. The petitioners are on bail, therefore, their bail bonds stand discharged and so do their sureties.