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2015 DIGILAW 1516 (HP)

Pawan Kumar son of Lalman v. State of H. P.

2015-10-14

P.S.RANA

body2015
JUDGMENT : P.S.Rana, Judge. Present petition is filed under Section 482 Cr.PC read with Article 227 of Constitution of India for quashing proceedings of case No. 89-4 of 2014 pending before learned Judicial Magistrate Court No.3 Ghumarwin District Bilaspur HP. BRIEF FACTS OF THE CASE: 2. Sh. Lalman father of petitioner Pawan Kumar filed criminal cognizable complaint in Police Station Bharari Tehsil Ghumarwin and thereafter police official namely H.C Naresh Kumar while exercising investigative powers under Section 154 of the Code of Criminal Procedure 1974 went at place Padhyan on dated 19.8.2014 at about 2.30 PM thereafter petitioner obstructed H.C Naresh Kumar a public servant from discharging his public function. Criminal case under Section 186 IPC was filed against Pawan Kumar and learned Judicial Magistrate Ist Class Court No.3 Ghumarwin issued notice of accusation to petitioner under Section 186 IPC on dated 23.12.2014. Accused did not plead guilty and claimed trial. Thereafter learned Judicial Magistrate Ist Class Ghumarwin listed present case for prosecution evidence. Thereafter learned trial Court recorded statements of six prosecution witnesses. 3. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of non-petitioner and also perused entire record carefully. 4. Following points arise for determination in the present petition: 1. Whether petition filed under Section 482 Cr.PC read with Article 227 of Constitution of India is liable to be accepted as mentioned in memorandum of grounds of petition? 2. Final order. Finding upon point No.1 with reasons. 5. Submission of learned Advocate appearing on behalf of petitioner that learned Judicial Magistrate Ist Class Court No.3 Ghumarwin District Bilaspur H.P has illegally granted permission to investigate non-cognizable offence under Section 186 IPC is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that complaint under Section 186 IPC was filed by H.C Naresh Kumar with allegation that petitioner had obstructed H.C Naresh Kumar a public servant from discharging his public function . It is well settled law that offence under Section 186 IPC is an offence against public because word obstructing public servant in discharging of public function mentioned in positive manner in Section 186 IPC. Court is of the opinion that wherein the word =public' is mentioned in any criminal offence under Indian Penal Code the same criminal offence comes within the domain of offence against public. Court is of the opinion that wherein the word =public' is mentioned in any criminal offence under Indian Penal Code the same criminal offence comes within the domain of offence against public. In view of the fact that allegation against petitioner was that he had committed offence against public servant in discharge of his public duty court is of the opinion that learned Judicial Magistrate has rightly granted permission under Section 155 (2) Cr.PC for investigation of non-cognizable case being offence against the public servant. 6. Submission of learned Advocate appearing on behalf of petitioner that High Court of HP vide order dated 11.9.2014 called records pertaining to proceedings Ext P1 to Ext.P3 from the Court of learned Judicial Magistrate Court No.3 Ghumarwin District Bilaspur H.P and in view of above stated facts thereafter entire proceedings initiated under Section 186 IPC against petitioner in compliance to the order of learned Judicial Magistrate Ghumarwin dated 25.8.2014 are illegal and null and void is also rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the order of High Court passed on 11.9.2014 in Cr. MMO No. 194 of 2014. Order of High court of HP dated 11.9.2014 is quoted in toto: 11.9.2014 Present: Mr.G.D.Verma, Sr. Advocate with Mr.B.C.Verma Advocate for petitioner. Mr. R.S.Verma, Addl. Advocate General and Mr.H.K.S.Thakur Addl. Advocate General for Respondent. Notice. Mr.H.K.S Thakur learned Addl. Advocate General appears and waives service of notice on behalf of the respondent-State. Entire records pertaining to the proceedings (Ext P1 to P-3) be immediately called from the Court of Judicial Magistrate, 2nd Class, Court No.3 Ghumarwin District Bilaspur HP. List on 9th October, 2014. Sd/- Judge. 7. Hon'ble High Court of HP on dated 11.9.2014 did not suspend the execution of order dated 25.8.2014 passed by learned Judicial Magistrate Court No.3 Ghumarwin District Bilaspur H.P. High Court vide order dated 11.9.2014 simply called records pertaining to the proceedings Ext P1 to Ext P3. It is held that execution of order is suspended only when positive order of suspension of execution of order is passed by competent authority of law. It is held that simply summoning records did not mean that execution of order passed by learned Judicial Magistrate Ghumarwin was suspended automatically. It is held that there is wide difference between two concepts (1) Suspension of execution of order (2) Calling entire records pertaining to the proceedings. It is held that simply summoning records did not mean that execution of order passed by learned Judicial Magistrate Ghumarwin was suspended automatically. It is held that there is wide difference between two concepts (1) Suspension of execution of order (2) Calling entire records pertaining to the proceedings. In view of the fact that execution of order of learned Judicial Magistrate Court No.3 Ghumarwin dated 25.8.2014 was not suspended by Hon'ble High Court of HP vide order dated 11.9.2014 it is held that all subsequent criminal proceedings conducted in compliance of order of learned Judicial Magistrate Ghumarwin dated 25.8.2014 are not null and void ab-initio. 8. Submission of learned Advocate appearing on behalf of petitioner that after perusal of entire evidence recorded by learned trial Court in criminal case no case is made out against the petitioner under Section 186 IPC on merits and on this ground present petition be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that court is not legally competent to appreciate the evidence upon merits at this stage of case because matter is sub-judice before learned Judicial Magistrate Ghumarwin for disposal. It is well settled law that proceedings of learned trial Court and proceedings under section 482 Cr.PC read with Article 227 of Constitution of India are independent proceedings. It is held that if any finding is given upon merits of case then same will adversely effect the trial of criminal case pending before learned Judicial Magistrate Ghumarwin at this stage. Learned trial Court will announce judgment upon criminal offence under Section 186 IPC after giving due opportunity to both parties to lead evidence in support of their case. It is held that if any finding is given upon merits of case then same will adversely effect the trial of criminal case pending before learned Judicial Magistrate Ghumarwin at this stage. Learned trial Court will announce judgment upon criminal offence under Section 186 IPC after giving due opportunity to both parties to lead evidence in support of their case. In view of the fact that offence under Section 186 IPC is an offence against public servant and in view of the fact that word obstructing public servant in discharge of public function has been mentioned in positive manner in Section 186 IPC and in view of fact that learned trial Court recorded six prosecution witnesses and in view of fact that learned public prosecutor closed prosecution evidence in trial court on 13.04.2015 and in view of fact that case is in last stage of criminal proceedings and in view of fact that Hon'ble High Court of H.P did not suspend execution of order vide order dated 11.9.2014 it is not expedient in the ends of justice to allow the petition. As per Article 141 of Constitution of India law laid down by Hon'ble Apex Court of India is binding on all courts within the territory of India. See. 2015 (8) SCC 307 titled State of Madhya Pradesh Vs. Manish and others. Also see 2012 (10) SCC 303 titled Gian Singh Vs. State of Punjab and another. In view of above stated facts point No.1 is answered in negative against petitioner. Point No.2 final order. 9. In view of finding upon point No.1 petition filed under Section 482 Cr.PC read with Article 227 of the Constitution of India is dismissed. Observation made hereinabove is strictly for the purpose of deciding the present petition and shall not effect merits of the case in any manner. Record of learned trial Court along with certify copy of order be sent forthwith. Petitioner is directed to appear before learned trial Court on 10.11.2015. Petition filed under Section 482 Cr.PC read with Article 227 of Constitution of India is disposed of. All pending application (s) if any also disposed of.