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2013 DIGILAW 113 (PAT)

State of Bihar v. Balmiki Pandey

2013-01-23

MANDHATA SINGH

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JUDGMENT Prosecution case initiated on written application of Munshi Singh Madhukar P.W.4, in brief, is that on 31.8.1987 at 2.00 PM S.D.O. Bhabua Sri Vishnu Kumar P.W.3 was in his Chamber, informant came there as was called by him to discuss some administrative work, in the meantime, Deputy Supply Officer, Bhabua S.S.A.Nomani also came in his Chamber. 2. It is said that a home guard constable came in Chamber and asked permission to meet made by the accused respondent who was in custody. Permission was accorded, accused respondent was allowed to come in Chamber. He talked in harsh words and when was asked to maintain peace, this accused respondent took a roller from table of S.D.O. and blew the same on his head but in attempt to save himself that could hit his right hand only. On his alarm persons remaining there gathered, Police officials also came. Accused wanted to flee from there but was caught rather arrested and in that course he sustained some injury on his head. It is said that he was arrested under section 113 of Code of Criminal Procedure in connection with a proceeding under section 107 of Code of Criminal Procedure. 3. Trial of the case by Judicial Magistrate, 1st Class, Bhabua Sri Ramesh Kumar Gupta, ended in conviction and sentence to accused respondent for the offence under sections 323, 353 and 224 of the Indian Penal Code. 4. The verdict of conviction and sentence challenged by filing Cr. Appeal No. 149/95/50/95. The same is decided by Dr. Ratan Kishore Tewary, 1st Additional Sessions Judge, Kaimur at Bhabua on 7.7.2005. He has acquitted the accused respondent of all the charges leveled against him for which he was convicted and sentenced. 5. All the witnesses and material appeared in course of trial has elaborately been discussed by learned Additional Sessions Judge, Bhabua. 6. Here this court is to consider any mistake if is committed by the appellate court in recording judgment of acquittal or any part of observation suffers with any illegality or perversity. 7. Section 224 of the Indian Penal Code is applicable only when accused remains in custody. It is said that he was wanted under section 113 of Code of Criminal Procedure and was brought by the home guard officials as a proceeding was pending under section 107 of Code of Criminal Procedure against accused respondent. 7. Section 224 of the Indian Penal Code is applicable only when accused remains in custody. It is said that he was wanted under section 113 of Code of Criminal Procedure and was brought by the home guard officials as a proceeding was pending under section 107 of Code of Criminal Procedure against accused respondent. Warrant can be issued under this section but condition is that person should be in custody or circumstance was existing justifying his arrest otherwise only summons is to be issued. Section 113 of Code of Criminal Procedure runs as follows: “113. Summons or warrant in case of Person not so present.- If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court: Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate) that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest.” 8. It is admitted case of the parties that the accused respondent was not in custody at that time in any other case. Circumstance if any was existing justifying his arrest is not mentioned. No doubt act of the instant case could justify his arrest and there could be some resistance on his behalf. In that course it is said that attempt was made by local people and Police officials to take him into custody and in that course he received some injuries also and was taken to Police Station not justifying constitution of any offence under section 224 of the Indian Penal Code. 9. Another section for which conviction was awarded by the learned Magistrate is section 353 of the Indian Penal Code which is for assault or use of criminal force to deter public servant from discharge of his duty. In this case permission was sought to meet and was allowed and only there was talk in between the accused respondent and the S.D.O. not in discharge of his duty (official). In this case permission was sought to meet and was allowed and only there was talk in between the accused respondent and the S.D.O. not in discharge of his duty (official). There cropped up use of hot words or assault does not come within the definition of this section. 10. Last act is blow of a roller on S.D.O., Bhabua. Same is discussed and disbelieved by the appellate court as witnesses are not constant on that point. Injury report has also been submitted in the case but not proved by the doctor who issued injury report rather it has come that on the next day S.D.O. was examined by the doctor. On the day of incident he had no paid, so no medical aid was provided by the doctor. 11. Witnesses on this point namely P.W.3 S.D.O. Bhabua himself states about receiving injury on his palm and finger while P.W.4 in paragraph 5 states about receiving injury above the wrist of right hand and P.W.7 in paragraph 8 states about sustaining of injury on shoulder certainly not believable, rightly has been disbelieved by elaborate discussion in the impugned judgment by the Appellate Court. 12. Finding no infirmity (mistake) in the impugned judgment dated 7.7.2005, the Govt. appeal is dismissed accordingly. Appeal dismissed.