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2016 Supreme(HP) 603
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Anurag Thakur and another - Petitioners
Versus
State of H.P. - Respondent
Cr.MMO No. 35 of 2016
Decided On : 30-05-2016
For the Petitioners:Mr. Randeep Rai, Sr. Advocate, with M/s Vikrant Thakur, Amit Kumar Dhuman, Rubina, Haresh and Purshottam Chaudhary, Advocates
For the Respondents: Mr. Shrawan Dogra, AG with Mr. Parmod Thakur, Addl. AG and Mr. Neeraj K. Sharma, Dy. AG
The mandatory provisions of Section 195(1)(a) of the CrPC must be followed when filing a complaint against a public servant for obstructing public servants from discharging their public functions under Section 186 of the IPC.
Headnote:
The Court quashed the complaint and all consequential proceedings against the petitioners for obstructing public servants from discharging their public functions under Section 186 of the Indian Penal Code (IPC). The Court held that the mandatory provisions of Section 195(1)(a) of the Code of Criminal Procedure (CrPC) were not followed, as the complaint was filed by the Station House Officer (SHO) of the police station instead of the public servant concerned or their superior officer.
Fact of the Case:
The petitioners, a Member of Parliament and a Public Relation Officer of the Himachal Pradesh Cricket Association, were accused of obstructing public servants from discharging their duties by entering a police station and the office of the Superintendent of Police. A complaint was filed against them under Section 186 of the IPC by the SHO of the police station.
Finding of the Court:
The Court found that the complaint was not filed by the public servant concerned or their superior officer, as required by Section 195(1)(a) of the CrPC. The Court also found that the material placed on record was not sufficient to initially permit the investigation of the case and thereafter to summon the accused and put them to notice of accusation.
Issues: 1. Whether the mandatory provisions of Section 195(1)(a) of the CrPC were followed in filing the complaint against the petitioners. 2. Whether the material placed on record was sufficient to initially permit the investigation of the case and thereafter to summon the accused and put them to notice of accusation.
Ratio Decidendi: 1. Section 195(1)(a) of the CrPC mandates that no court shall take cognizance of an offence punishable under Section 186 of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. 2. The complaint against the petitioners was filed by the SHO of the police station, who was not the public servant concerned or their superior officer. Therefore, the mandatory provisions of Section 195(1)(a) of the CrPC were not followed.
Final Decision: The Court allowed the petition and quashed the complaint, summoning order, notice of accusation, and other consequential orders against the petitioners.
Rajiv Sharma, J.
The present petition has been filed under Section 482 of the Code of Criminal Procedure praying for quashing of complaint pending in the Court of learned Chief Judicial Magistrate, Kangra at Dharamshala under Section 186 of the IPC along with summoning order/notice of accusation and all other consequential proceedings.
2. The petitioner No. 1 is 3rd time Member of Parliament. He was first elected to Lok Sabha in May, 2008 in a by-poll. He won once again from Hamirpur Constituency in the year 2014. He was also elected as Secretary of the Board of Control Cricket in India in March, 2015. The petitioner No. 1 is also President of Himachal Pradesh Cricket Association (HPCA). The petitioner No. 2 is the Public Relation Officer (PRO) of the Himachal Pradesh Cricket Association.
3. According to the averments made in the complaint, Insp. Jagdish Chand along with Insp. Prem Chand, Yashpal, Const. Ashok Kumar, HC Rakesh Kumar, HC Sanjay Kumar and other staff members was present at 1:55 PM in the Police Station Hazoor (SV & ACB), Dharamshala. The petitioners along with about 200-250 persons entered inside the main gate. They raised slogans and burst crackers. Insp. Jagdish Chand along with Insp. Prem Chand apprised the petitioners that S.P. Yog Raj was carrying out the investigation. He was out of station. They disclosed their identity to the petitioners. The accused enquired about the Superintendent of Police. Thereafter, the accused along with 25-30 persons forcibly entered the Office of Superintendent of Police. They raised slogans in the courtyard. They came out of the Office of Superintendent of Police at 2:30 P.M. They remained near the gate of the Office of Superintendent of Police for ten minutes. They had disrupted the government administration for half an hour in the Police Station and Office of Superintendent of Police (SV & ACB). Thus, the petitioners have committed the offence under Section 186 IPC.
4. Mr. Randeep Rai, Sr. Advocate, appearing for the petitioners has argued that his clients have never obstructed the public servants from discharging their public functions, as alleged in the complaint Ext. P-1. He also vehemently argued that the mandatory provisions of Section 195(1)(a) Cr.P.C. have not been followed. According to him, the complaint could only be filed by the concerned person or his immediate superior to whom he was subordinate and not by the SHO concerned. On the other hand, Mr. Shrawan Dogra, learned Advocate General for the State has strenuously argued that there was no breach of Section 195(1)(a) Cr.P.C. According to him, the petitioners along with other persons have obstructed voluntarily the public servants from discharging their duties by entering into the Police Station and the Office of Superintendent of Police (SV & ACB).
5. The record was produced by the learned Advocate General during the course of hearing of the matter.
6. I have heard the learned counsel appearing on both the sides and have also gone through the records minutely.
7. Mr. Shrawan Dogra, learned Advocate General has drawn the attention of the Court to DDR entry No. 12(A) from the records produced before the Court. It is stated in the DDR that on 24.10.2013 Insp. Jagdish Chand along with Insp. Prem Chand and other police officials were present in Police Station Hazoor (SV & ACB), Dharamshala. The petitioner No. 1 with Mr. Parveen Sharma, Ex MLA, Mr. Sanjay Sharma, PRO (HPCA), Mr. Virender Kanwar, MLA along with 200/250 Bhartiya Janta Party Yuva Morcha (BJYM) workers carrying banners and bursting crackers entered the gate. They entered the Police Station. Mr. Parveen Sharma and petitioner No. 1 enquired from Insp. Jagdish Chand as to who has called them. He told them that Sh. Yog Raj, Addl. Superintendent of Police was conducting investigation in Himachal Pradesh Cricket Association case and he was out of the Police Station. They asked for his identity. He disclosed the same. They asked him about the whereabouts of
