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2012 DIGILAW 598 (RAJ)

Sumer Singh v. State of Rajasthan

2012-03-06

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner challenging the order dated 30.4.2008 passed by the learned Additional Chief Judicial Magistrate, Jaisalmer in Criminal Case No. 80/2008, whereby cognizance has been taken against the petitioner for the offences tinder Sections 452, 353 and 504 Indian Penal Code and on a revision petition, being Revision Petition No. 26/2008, has been partly modified by the learned Sessions Judge, Jaisalmer. The learned Sessions Judge, whilst partly allowing the revision petition filed by the petitioner, set aside the order taking cognizance regarding the offence under Section 452 Indian Penal Code and converted the same to an offence under Section 447 I.P.C. 2. Briefly stated the facts of the case, relevant and necessary for the disposal of the instant miscellaneous petition, are that one Ram Chandra Gupta, who was the Executive Engineer in Indira Gandhi Canal Project, filed a report on behalf of Shri Birdhi Chand, Chief Engineer of Indira Gandhi Canal Project, alleging inter ilia that on 4.11.2007 when the Chief Engineer was sitting in his house, at that time the petitioner, who was the Pradhan of Panchayat Samiti at the relevant time, entered into his house in the evening at about 8.00 P.M. and started hurling abuses to the Chief Engineer. It is alleged that earlier at about 7.30 P.M., the petitioner had called the Chief Engineer on his mobile and after talking to him about the water supply in Ramgarh area and irrigation from the canal, the petitioner abused him over telephone as well and threatened him of dire consequences. On the basis of this report, an F.I.R. for the offences under Sections 451 and 504 Indian Penal Code was registered and the investigation ensued. During the course of investigation, the statement of the Chief Engineer was recorded under Section 161 Criminal Procedure Code In his statements recorded under Section 161 Criminal Procedure Code the Chief Engineer has alleged that at about 7.30 P.M., the petitioner called him on his mobile number and had hot talks with him regarding the distribution of water in Ramgarh area; thereafter when the Chief Engineer was sitting in the garden of his Government accommodation at about 8.00 P.M. the petitioner opened the gate of his premises and accompanied with fifteen to twenty persons, started abusing him and threatened him. It is also alleged that the petitioner was appearing to be under the influence of liquor and he asked the Chief Engineer to have a talk with the Chief Minister and the concerned Minister. On refusal, the petitioner is said to have become enraged and threatened him with dire consequences and made a preparation to assault him, on which the officer stated that he became afraid and went inside his house and informed the District Collector and the Superintendent of Police about the incident over telephone. On hearing the telephonic talks of the officer, the petitioner and his companions went away. He has further stated that he was not beaten but jostled up. The police has also prepared the site plan and as per the site plan, the incident is said to have taken place in the open chowk of the complainant's Government bungalow, where the table and the chairs are placed. 3. Learned counsel for the petitioner, placing reliance on the aforesaid circumstances, submitted that the petitioner is a public representative and in his capacity as a public representative, he had gone to apprise the Chief Engineer about the grievances of the public at large. Learned counsel submits that the intention of the petitioner was not at all to commit the offences. He has submitted that the entrance of the complainant into the Government bungalow of the Chief Engineer does not amount to an offence under Section 448 Indian Penal Code because for the purpose of application of the said offence, the act of a person said to have committed the offence has to be within the category of criminal trespass and for the said act, the intent to commit the offence is primary. He has submitted that in this case the admitted case of the prosecution is that the petitioner was desirous of talking to the Chief Engineer in reference to the water supply in Ramgarh area and as such ex facie the ingredients of the offence under Section 448 Indian Penal Code are not made out against the petitioner. He has further submitted that admittedly the chief Engineer was not performing any official duty when the petitioner went to his house and as such the offence under Section 353 Indian Penal Code cannot be said to be made out against the petitioner. He has further submitted that admittedly the chief Engineer was not performing any official duty when the petitioner went to his house and as such the offence under Section 353 Indian Penal Code cannot be said to be made out against the petitioner. It is also argued that the essential ingredients of the offence under Section 504 Indian Penal Code are also not made out from the admitted allegations of the complainant because the intentional insult, which has been attributed to the petitioner, is not alleged to have been made with intent to provoke the breach of peace, thus it is submitted that the order taking cognizance, as modified in the revision, deserves to be quashed. 4. Per contra, the learned Public Prosecutor has opposed the miscellaneous petition and submitted that the petitioner gathered a mob and with an unbecoming behaviour, forced his way into the official residence of the Chief Engineer and tried to force him to accede to his unreasonable demands, whereby the petitioner is prima facie responsible for the offences, for which the cognizance has been taken. He, thus, submitted that no interference is warranted in the well-reasoned order taking cognizance passed by the learned trial Court and modified by the revisional Court. 5. I have given my thoughtful consideration to the rival arguments advanced at the bar and carefully gone through the material available on record. 6. Admittedly, in this case when the petitioner, along with other members of public, went to the house of the Chief Engineer, the Chief Engineer was not performing any official duty/public duty; it is rather the petitioner, who had gone with the grievance of general public and during the process of this act, it is no case of the complainant that he was deterred from discharging any of his official duty. It is not the case of the prosecution that at 8.00 O'Clock in the evening, the complainant was performing any of his official duties and that the petitioner's act obstructed/ deterred the performance of any such public duty. Resultantly, the essential ingredients of the offence under Section 353 Indian Penal Code are not made out from the admitted allegations of the prosecution. 7. Resultantly, the essential ingredients of the offence under Section 353 Indian Penal Code are not made out from the admitted allegations of the prosecution. 7. As regards the offences under Section 448 Indian Penal Code is concerned, the essential ingredients of the offence under Section 441 are to be satisfied before prosecution of an accused for the offence under Section 448 Indian Penal Code cannot be said to be made out. 8. As regards the offence under Section 504 Indian Penal Code, the prosecution for such an offence is permissible only when the insult is made to the offended person with an intention or knowledge that such insult or provocation will lead the offended persons to the breach of public peace or to commit any offence. When the petitioner, along with his companions exchanged hot talks with the Chief Engineer, it is no case of the prosecution that the petitioner provoked the Chief Engineer to indulge into breaching of public peace or to commit any offence. As such, the ingredients of the offence under Section 504 Indian Penal Code are also not made out against the petitioner. 9. As has been observed above, prima facie the ingredients of the offences under Sections 353 and 504 I.P.C. have not been found against the petitioner. Thus, it cannot be said that the petitioner entered upon the property in possession of the Chief Engineer for the purpose of committing any offence. 10. That apart, it is the admitted case of the complainant that the petitioner had come to the premises with the members of public at large for raising the grievance regarding distribution of water in Ramgarh area. The petitioner too was a public representative being the Pradhan at the relevant time. Thus, if at all the petitioner had gone to the house of the Chief Engineer for raising the public grievance taken it cannot be said that he entered into the premises with an intention to commit the offences. Resultantly, the essential ingredients of the offence under Section 448 Indian Penal Code are also not made out against the petitioner. 11. The upshot of the above discussion is that the miscellaneous petition succeeds and the impugned order dated 30.4.2008 and 20.2.2009 passed by the learned Revisional Court and the trial Court respectively and all proceedings sought to be taken against the petitioner, are hereby quashed. 11. The upshot of the above discussion is that the miscellaneous petition succeeds and the impugned order dated 30.4.2008 and 20.2.2009 passed by the learned Revisional Court and the trial Court respectively and all proceedings sought to be taken against the petitioner, are hereby quashed. The stay petition also stands disposed of.Petition allowed. *******