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2016 DIGILAW 183 (UTT)

Jagdish Chandra Ghildiyal v. State of Uttarakhand

2016-04-29

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The legal maxims de minimis non curat lex means that, the law does not notice or concerns itself with trifling matters! This maxim seems to have been completely violated in the case at hand. 2. The case at hand is a glaring example where an administrative officer, of the rank of a Sub-Divisional Magistrate (Rishikesh, District Dehradun), has quite unnecessarily initiated a criminal proceedings against the present applicant, who at the relevant time was the Principal of a Government Post Graduate Degree College. A First Information Report was lodged under Sections 336 and 353 of I.P.C. against the present applicant and since the First Information Report was lodged by a Civil Servant, the police completed its investigation in record time and thereafter promptly filed its charge-sheet before the court concerned where the learned Magistrate too, on a total non application of mind, has taken cognizance and summoned the present applicant. It is this summoning order and the cognizance taken by the Magistrate, which is presently being challenged before this Court by the applicant invoking the inherent jurisdiction of this Court, under Section 482 Cr.P.C. 3. The facts of this case are that His Excellency the Governor of Uttarakhand was to attend a student’s function in a Government Degree College, namely, “Lalit Mohan Sharma Government Postgraduate College” at Rishikesh on 27.11.2014. The occasion was the conclusion of the election of Students’ Union whereby certain students were elected to the post of President, Vice-President, etc. and they were to take oath on that day. 4. Clearly it was not a function of the college, but of Students’ Union. This much is clear from the subsequent enquiries and the statements, which have come before this Court. In any case, the case of the prosecution is that when the Sub-Divisional Magistrate, who was in-charge of security of His Excellency the Governor of Uttarakhand went to the college premises at about 10:00 a.m. in order evaluate the security arrangement etc., he came to the conclusion that there must be a “safe-house” for the Governor, and for that purpose he found the Principal’s office to be the most suitable as safe-house for His Excellency the Governor. He then went to the Principal and asked him to vacate the office, for the safe-house. He then went to the Principal and asked him to vacate the office, for the safe-house. He further asked the Principal to remove all the chairs, excluding the chair of the Principal, and instead place a sofa in that office. The Principal as well as the other teachers of the college initially protested to this demand of the Sub-Divisional Magistrate. Their case was that the function is primarily of the Students’ Union, the Principal and the teaching community have not been taken into confidence and in fact till 10:00 a.m. in the morning the Principal was not even aware of the arrival of the Governor of Uttarakhand in the college premises, yet considering that it was a function, which was to be attended by the Governor, they extended their cooperation and submitted that instead of the office of Principal being made the safe-house, they should make the “Yoga Lab” as safe-house, which is also near the place where function was to be organized and is better located. It appears that there was some argument and altercation between the Principal (applicant) and the Sub-Divisional Magistrate on this issue, but ultimately, the fact of the matter is that the Principal vacated his office, which was then used as a safe-house. Since there was no sofa in the college, a sofa was arranged from a tent house in the college and placed in the office. Later after two days, i.e. 29.11.2014, on some orders of the District Magistrate, Dehradun, a First Information Report was lodged by the Sub-Divisional Magistrate at the Police Station Rishikesh narrating the above events. The First Information Report has been registered and in fact by now charge-sheet has also been filed under Sections 336 and 353 of I.P.C. against the present applicant. 5. Before going further in the matter, it is relevant to quote Section 336 of I.P.C., which reads as under:- “336. Act endangering life or personal safety of others – Whoever does anything act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to file hundred rupees, or with both.” 6. Section 336 relates to an offence of endangering the life or personal safety of others. Section 336 relates to an offence of endangering the life or personal safety of others. Such an offence is committed when a person rashly or negligently endangers human lives or personal safety of others. This Court fails to understand as to how the alleged act of the Principal has even remotely endangered the life or the personal safety of the Governor or any other person in any way. At best, it can be argued that the Principal was uncourteous or even rude to the Sub-Divisional Magistrate or that he did not cooperate in the event, as desired by the Sub-Divisional Magistrate, but in no manner, even as per the allegations in the First Information Report, and the subsequent statements, which are before this Court, can it be said that the Principal in any way had endangered the life or the personal safety of others. Therefore, clearly no offence is made out under Section 336 of I.P.C. 7. The another offence under which the applicant has been charged is Section 353 of I.P.C., which reads, as under:- “353. Assault or criminal force to deter public servant from discharge of his duty – Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 8. This offence is committed when assault or criminal force is applied to deter a public servant from discharging his duties. All the same, this is not even the allegation in the First Information Report or in the subsequent statement of the complainant or any of the witnesses (which interestingly is a Student Leader or the President of the Students’ Union, who had actually organized the function) that the applicant assaulted any of them or used any criminal force against a public servant, thereby prohibiting him putting hindrance in performance to his duties. 9. What, the Sub-Divisional Magistrate wanted was to use the office of Principal for the purposes of the safe-house for the Governor, which was ultimately done. 9. What, the Sub-Divisional Magistrate wanted was to use the office of Principal for the purposes of the safe-house for the Governor, which was ultimately done. Admittedly the office of the Principal was eventually provided as a safe-house. The only complaint of the Sub-Divisional Magistrate was that initially the Principal i.e. applicant objected to his office being used as a safe-house and that in the process he used harsh words against the complainant/Sub-Divisional Magistrate reminding him that he too (i.e. the Principal) is a Government servant and has a Protocol of a “Commissioner”, which is higher than that of Sub-Divisional Magistrate, and therefore, the Sub-Divisional Magistrate should be polite and courteous towards him! But what offence has he committed! 10. Even if all these allegations are considered to be true, this Court is amazed and was at pains to know as to how Sections 353 & 336 of I.P.C. were made out against the present applicant. The entire exercise appears to be a means to harass the present applicant, who is the Principal of a Government Degree College, where the function was organized. The police after the investigation has filed the charge-sheet before the court concerned, purely on the basis of the statement of the complainant and the statement of one Vipul Pokhriyal, who is the President of the Students’ Union. The President of the Students’ Union under Section 161 of Cr.P.C. has even alleged that the applicant had used insulting words against the Sub-Divisional Magistrate and did not address the Governor properly. Such allegations have not even been made by the complainant himself. Under these circumstances, this Court also expresses its displeasure in the manner in which the concerned Judicial Magistrate has taken cognizance of the matter, without applying his judicial mind, before summoning the applicant. 11. This Court, therefore, also directs the Registrar General of this Court to place the entire file before the Judgment Committee of the Court, for their appraisal. 12. This Court has further been informed that not only the applicant had to face these criminal proceedings, but meanwhile, purely on the basis of this incident, he was transferred to another Government Degree College at Karanprayag, District Chamoli. 12. This Court has further been informed that not only the applicant had to face these criminal proceedings, but meanwhile, purely on the basis of this incident, he was transferred to another Government Degree College at Karanprayag, District Chamoli. Against the transfer order, he had filed a writ petition (being WPSB No. 510 of 2015) before the Division Bench of this Court, in which the petitioner has also annexed the report of a Senior I.A.S. Officer who was the then Secretary in the Government of Uttarakhand, who had done enquiry of the whole incident, which ultimately came to the conclusion that no offence has been committed by the petitioner and at best it is a clash of egos! The Division Bench of this Court also vide order dated 17.12.2015 has also taken notice of this fact and said that “in the enquiry, it is not found that the petitioner is guilty as such”. 13. The First Information Report itself does not inspire confidence, but assuming for the sake of argument that there is a truth in the averments of the First Information Report and the sequence of events and the incident actually really took place as stated in the First Information Report, yet it is not a case where any offence under Sections 336 and 353 of I.P.C. are made out against the applicant, on which the First Information Report or the charge-sheet should have been filed against the applicant. Moreover the Act ascribed to the present applicant is exempted under Section 95 of the I.P.C. Section 95 of I.P.C. reads as under:- “95. Act causing slight harm – Nothing is an offence by reason that it cause or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.” 14. Learned Single Judge of Calcutta High Court as far back in 1954 in Sadananda Jash Vs Shibakali Hazha reported in A.I.R. 1954 Calcutta 288 said that “intercourse in civilized society will come to an end if for certain words uttered a person found himself exposed to all trouble and worry of a criminal trial.” 15. This Court is in total agreement with the observations made by the learned Single Judge of the Calcutta High Court. This Court is in total agreement with the observations made by the learned Single Judge of the Calcutta High Court. The incident is too trivial to have been registered as a First Information Report in the first place, much less on which a charge-sheet should have been filed as to cognizance taken by the learned Magistrate. This is a case where there has been a gross abuse of process of court. The inherent power of the court under Section 482 Cr.P.C. must be invoked. 16. The criminal miscellaneous application under Section 482 Cr.P.C. is hereby allowed. The criminal proceeding initiated against the present applicant in pursuance of the Case Crime No. 374 of 2014 under Sections 336/353 of I.P.C. pending in the court of Additional Chief Judicial magistrate, Rishikesh, District Dehradun is hereby quashed.