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2023 DIGILAW 374 (UTT)

Ankit Kumar v. State of Uttarakhand

2023-06-22

SHARAD KUMAR SHARMA

body2023
JUDGMENT : The applicant to the present C-482 Application has put a challenge to the proceedings of Criminal Case No. 8059 of 2018, State Vs. Ankit Kumar, which stood registered as a consequence of the culmination of the investigation being conducted by the Investigating Officer, into the set of allegations levelled in FIR, being FIR No. 557 of 2018, dated 21st September, 2018, which was registered by Constable 49 T.P. Dinesh Kapari, for the alleged involvement of the present applicant for commission of the offence under Sections 332 and 353 of the IPC. 2. Consequence to the submission of the chargesheet, the cognizance has been taken by virtue of an order dated 15th December, 2018, as it has been passed by the Court of Addl. Chief Judicial Magistrate Kashipur, District Udham Singh Nagar, in the aforesaid Criminal Case No. 8059 of 2018, State Vs. Ankit Kumar. 3. There are multifarious arguments, which have been extended by the learned counsel for the applicant, and in order to better deal with, it is aptly required to be classified as:- i. He submits, that the Constables, who had intercepted the present applicant on the date and place, which is mentioned in the FIR, since they being the “constables”, they would not be the “police officers” in view of the provisions contained under Section 202 of the Motor Vehicles Act. ii. In that eventuality, he submits that once they are not the police officers, they could not have apprehended the present applicant, who was driving the motor cycle, being motor cycle bearing registration No. UA04B-2583 4. To deal with the aforesaid argument, reference to the provisions contained under Section 202 of the Motor Vehicles Act, becomes relevant. The provisions contained under Section 202 of the Motor Vehicles Act, it reads as under : “202. Power to arrest without warrant.— (1) A police officer in uniform may arrest without warrant any person who in his presence commits an offence punishable under section 184 or section 185 or section 197: Provided that any person so arrested in connection with an offence punishable under section 185 shall, within two hours of his arrest, be subjected to a medical examination referred to in sections 203 and 204 by a registered medical practitioner failing which he shall be released from custody. [(2) A police officer in uniform may arrest without warrant any person, who has committed an offence under this Act, if such person refuses to give his name and address.] (3) A police officer arresting without warrant the driver of a motor vehicle shall if the circumstances so require take or cause to be taken any steps he may consider proper for the temporary disposal of the vehicle.” 5. It provides that the Police Officer “would be an authority competent to arrest without warrant any person, who is found to be engaged in commission of the offence under Sections 184, 185 and 197 of the Motor Vehicles Act”. 6. Prior to the dealing with the implications of the use of the word “Police Officer” under Section 202 of the Motor Vehicles Act, a person can be arrested by the Police Officer, by using the power under Sections 202 of Motor Vehicle Act. Section 184 of the Act, deals with driving dangerously and Section 185 deals with driving a vehicle in a drunken state or under an influence of drugs, whereas, Section 197 of the Act deals with taking vehicle without an authority. 7. Reverting back to the principle implications of the use of word “Police Officer” under Section 202 of the Motor Vehicles Act, which has been attempted to be argued by the learned counsel for the applicant to challenge the proceedings, contending thereof, that the “Constables”, who are shown to have apprehended the present applicant on the date of commission of offence, since they being “Constables”, they would not be the eligible persons as per the provisions contained under Section 202 of the Motor Vehicles Act, and will not be holding an authority to arrest the present applicant. In fact, under the Motor Vehicles Act, the “Police Officer” has not been defined anywhere. 8. In that eventuality, to answer the argument extended by the learned counsel for the applicant, the definition of “Police Officer” has to be brought and read from the General Law as applicable, and in order to establish as to whether the “Constable”, as referred to in the FIR, would be a “Police Officer” within the ambit and meaning under Section 202 of the Motor Vehicle Act, who would be entitled to apprehend the applicant on the date of commission of offence. The definition of the “Police Officer” or “Police”, which have been given in various general laws, that is to be taken into consideration. For example in the Oxford English Dictionary, defines the “Police” as to be a civil force responsible for the prevention and detention of crime and maintaining public peace and order. 9. On a simplicitor literal definition of “Police”, when it uses civil force, since it does not classify the cadre of the employee of the Police Department, as to which cadre of the employee of the police department would be falling within the definition of Police, and quite logically, it would be inclusive of the Officer working right from the lower cadre up to the top cadre and this would be inclusive of the constables too. 10. In further elaboration to the aforesaid argument, the definition of “Police Officer” has been provided in the Legal Glossary as published by the Ministry of Law and Justice, Government of India, where Police Officer has been defined as any person holding an office usually above the rank of a constable in the police force of the country. Meaning thereby, when the definition given in the Legal Glossary, when it defines the “Police Officer”, it uses the word “any person”. As per opinion of this Court, it is wide enough to include within itself the Constable because, the subsequent expression given therein, it means that all officers above the rank of Constable would be the Police Officer. Meaning thereby, the Constables are not in exclusion of the definition of the Police Officer as defined under the Legal Glossary, rather the Constables are included in the definition of “Police Officer”. 11. The learned counsel for the applicant had drawn the attention of this Court, that the Constable would not be included in the definition of “Police Officer”. He refers to the definition of the Police Officer as provided under the Police Act, and he has referred to the definition given of the Police as provided under Section 2 (o) of the Cr.P.C. 12. He refers to the definition of the Police Officer as provided under the Police Act, and he has referred to the definition given of the Police as provided under Section 2 (o) of the Cr.P.C. 12. If the interpretation clause to the Police Acts is taken into consideration, it provides that wherever the word ‘police’ is used, it is a generalized term which is normally used and shall include all persons, who are enrolled under the Act, and quite logically too, and without there being any specific reference required, any Constable will be inclusive within the word of “Police” as defined under the Police Act and, is enrolled under the Act. Hence, a different interpretation cannot be given in the manner in which, it has been attempted to be argued by the learned counsel for the applicant. 13. In further elaboration to the arguments extended by the learned counsel for the applicant to impress upon the Court as to who would be the police personnel, a reference may be made to the provisions contained under Section 2 (p) of the Uttarakhand Police Act, 2007, which is extracted hereunder:- “(p) "Police Officer" means any officer, belonging to the Indian Police Service, Uttarakhand Police Service or Uttarakhand Police Subordinate Service and includes any other service, constituted under this Act.” 14. The “Police Officer” as defined under the said Act of 2007, means any officer belonging to the Indian Police or Uttarakhand Police Service or Uttarakhand Subordinate Police Service, which will not be read in exclusion of Constable, which will be inclusive of the Officer of the rank of Constable too because this Rule does not exclude its applicability on the Constables, who are part and parcel of the Police Force as defined under the Police Act. 15. 15. In that eventuality, the argument extended by the learned counsel for the applicant, that the Constable will not be included in the definition of Police Officer, in the context of the definition clause provided under the Cr.P.C., he refers to the Sub-clause (o) of Section 2 of the of the Cr.P.C., which is extracted hereunder :- “(o) "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;” 16. The manner in which the attempt has been made by the learned counsel for the applicant to interpret the said definition of “Officer Incharge of a police station”, is altogether a different connotation and will not be applicable in relation to the definition of constable for the reason being, that it is the head of the Police Station, which has been defined as to be an Officer Incharge and not the Police Officer, as it has been included under Section 202 of the Motor Vehicles Act. 17. Even the said provisions as contained under Sub-section (o) of Section 2 of the Cr.P.C., defines the Officer Incharge of the Police Station, it has rather widened its definition by observing thereof, that in the absence of the Head of the Police Station, any other person or the Police Officer, who is Incharge, though momentarily of the Police Station would only be treated to be an Officer Incharge. The said definition provided under Section 2 (o) of the Cr.P.C., will too not apply in the instant case, particularly when, the Officer Incharge in the Police Station and the Police Constable are altogether a different person appointed in a different cadre, but under its generalized implication, they are included in the definition of the Police Officer as already extracted above in the light of the definition given under the Police Act of 2007, and where the definition given in the Indian Glossary as to who would be the Police Officer. Thus this argument of the learned counsel for the applicant, that in view of the Section 202 of the Cr.P.C. since it is only a Police Officer, who could have apprehended the accused person to be involved in the commission of offence and since the complainant was not a “Police Officer” and being a “Constable” was not competent to apprehend the present applicant is not acceptable by this Court for the reasons and the discussion made above. 18. The second argument, which has been extended by the learned counsel for the applicant is in the light of the pleadings raised by him in para 15 of the C-482 Application, where he contends that the Officers, who are discharging their duties at the time and place where the applicant was apprehended, they were not assigned with the responsibility, to work in the said capacity, at the said place. He contends that this pleading raised by him in para 15 has not been controverted by the Government Advocate in the counter affidavit in its reply given in para 13, is yet again not acceptable for the reason being, that the authority being vested with the Police Officer to perform an official duty at a particular place cannot be an issue of concern of the accused when the accused person was apprehended to be engaged in the commission of an act, which is otherwise impermissible under law. The deployment of an Police Officer, at a particular place, for a particular duty, an authority being vested upon with him would be exclusively within the administrative control of the Police Department, and it cannot be left to be taken as a defence, which can be used by the accused person to put a challenge to the criminal proceedings on the ground, that the Police Constable, who has apprehended the present applicant, was not competent to apprehend him. 19. This argument of the learned counsel for the applicant is in contradiction to the earlier argument pertaining to as to who would be the Police official. 19. This argument of the learned counsel for the applicant is in contradiction to the earlier argument pertaining to as to who would be the Police official. If he argues that the Police Constable, who has apprehended him was not having an authority to perform his duty at the place from where he was apprehended, then atleast, he admits the facts that it was an Officer falling within the definition of the Police Officer holding an authority to apprehend, the issue would be entirely divergent, as to whether he was deployed by the superior officer to discharge his duties at the particular place and time, when the accused was apprehended. 20. Even otherwise also, this logic of argument, that the “Police Officials” were not competent to apprehend the applicant on the date and from the place of the commission of offence or the argument in the context, that the “Police Official” was not holding an authority to perform his official duties, at the given place, is not acceptable for the reason being, that if the Police Official is present at the place of commission of offence, irrespective of the fact, whether he holds an authority to perform the duty at that given place or whether he is deployed there or not, would be irrelevant and immaterial because, he cannot despite of being a “Police Official” wait for responsibilities to be bestowed upon him to prohibit the commission of apparent offence. In that eventuality, the argument that the Police Officer / Constable was not competent, as he was not holding the responsibility/authority to perform duties at the given place, is not acceptable by this Court. 21. Thirdly, it has been argued by the learned counsel for the applicant, that no offence under Section 332 of the IPC, is made out for which, he has been summoned by the impugned order, which could be made out against the present applicant, because in the absence of there being any medical report on record, it cannot be said that due to altercation, which has taken place, there was any voluntarily hurt, which was caused to the Police officials, who were the public servants and as such, the provisions contained under Section 332 of the IPC would not be attracted. 22. 22. In response to it, the learned counsel for the State has submitted, that this argument pertaining to as to what would the “hurt” actually means in the instant case would be as it is contained under Section 332 of the IPC. He submits that “hurt” does not mean, that it has to be an open wound or an injury caused, which would be requiring a medical examination as to be a condition precedent to establish a commission of offence under Section 332 of the IPC. 23. He submits, that if the definition of “hurt” as defined under Section 319 of the IPC, is taken into consideration, Section 319 of the IPC defines the “hurt” in the following manner :- “319. Hurt. – Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.” 24. The definition of “hurt” has been expanded enough and diluted in its implications, to even bring bodily pain, disease or infirmity to any person within the ambit of definition of “hurt”. Causing pain would itself be sufficient enough to bring an act within the definition of “hurt” under Section 319 of the IPC, and thus, the argument extended by the counsel for the applicant, that in the absence of any medical examination, the offence under Section 332 of the IPC cannot be ruled out to have been made against the present applicant is not acceptable by this Court. 25. He further submits, that in the absence of there being medical report and in the absence of there being even any supporting evidence with regard to the act, which was complained of in the FIR, it cannot be said that the present applicant was at all involved in the commission of the offence, is not acceptable by this Court, and for the reason, which has already been given above, the summoning order cannot be faulted of. 26. Lastly, in support of his contention and rather in elaboration to the first argument extended by the learned counsel for the applicant pertaining to as to who would be the Police Officer, he stressed upon the use of the word “subordinate”. 26. Lastly, in support of his contention and rather in elaboration to the first argument extended by the learned counsel for the applicant pertaining to as to who would be the Police Officer, he stressed upon the use of the word “subordinate”. The definition of the Police, as defined under Section 2 (p) of the Uttarakhand Police Act, 2007, will include the subordinate official, which would include within it Constable, for the reasons being that under the subordinate Police Official Disciplinary and Appeals Rules, where it uses the word “subordinate”, it includes the Constables, who would be falling within the purview of Disciplinary and Appeal Rules. The subordinate word used under Section 2 (p) of the Uttarakhand Police Act, will include the Police Officer within its ambit, which would be inclusive of Constables. 27. In view of what has been assigned above, this Court is not inclined to interfere in this C-482 Application. The C-482 Application is accordingly dismissed.