Quashed

Abdul Faqir v. State and Anr.

Rajasthan HC14 Sept 2017CRLMP/2755/2015

Case brief

AI extract

What is this about?

High Court of Rajasthan, Jodhpur quashed the order of cognizance under Section 482 Cr.P.C. It held that prosecution under the State Emblem Act required previous sanction which was absent, and IPC ingredients of threat or assault were not made out on facts. Stay petition disposed.

What did the court decide?

Order dated 03.09.2015 by Judicial Magistrate, Jaisalmer in Final Report No.42/15 is quashed and set aside; stay petition disposed.

Abdul Faqir Vs State and Anr. — Constitutional and Fundamental Rights | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Misc(Pet.) No. 2755 / 2015

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Abdul Faqir S/o Shri Gazi Faqir, by caste Musalman, R/o Bhagu Ka Gaon, Ex-Zila Pramukh, Zila Parishad, Jaisalmer.

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----Petitioner

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Versus

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State of Rajasthan.

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Dr. Vijay Prakash Singh S/o Raj Mohan Prasad, by caste Rajput, R/o 531- Dr. Kanhaiya Lal Achalvanshi Colony, Tehsil & District Jaisalmer (presently Retired Zila Prajanan Shishu Swasthy Adhikari, Jaisalmer.

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----Respondents

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For Petitioner(s) : Mr. Mahesh Bora, Senior Advocate assisted by Mr. Nishant Bora

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For Respondent(s) : Mr. V.S. Rajpurohit, PP

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Mr. Pradeep Shah with Mr. Sabir Khan

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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14/09/2017

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The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. against the order dated 03.09.2015 passed by learned Judicial Magistrate, Jaisalmer in Final Report No.42/15 by which the cognizance under Section 189, 353 of IPC and Section 3, 4 & 7 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (hereinafter referred to as the ‘Act of 2005’) and the State Emblem of India (Regulation of Use) Rules, 2007 was taken.

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The complaint was lodged under Section 190 Cr.P.C. on 14.12.2013 for the alleged incident which took place on

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(2 of 6)

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[CRLMP-2755/2015]

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09.11.2012. The complainant was posted at Jaisalmer on the post of Zila Prajanan Shishu Swasthy Adhikari and the allegation is that he submitted a complaint before the Chief Medical & Health Officer, Jaisalmer against the ambulance driver Jetha Ram. The complainant alleged that he was called in the court premises in front of another person, namely, Mahender Sewak and he was threatened to withdraw the complaint against the driver by the present petitioner and the misuse of National Emblem (Ashok Stambh) was also reported in a letter written by the complainant. The negative final report was filed and the petitioner has challenged the order of cognizance.

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Learned counsel for the petitioner has pointed out that Sections 3, 4 & 7 of the Act of 2005, the cognizance cannot be taken, unless there is a previous sanction under Section 8 of the Act of 2005. Learned counsel for the petitioner has further stated that on a bare reading of the FIR and the statement of the complainant as well as Mahender Sewak, it is clear that the total allegation against the petitioner is that he called the complainant in the court premises and threatened him that if complaint against Jetha Ram was not withdrawn then the complainant shall suffer serious consequence and the petitioner shall ensure that he does not get the pension.

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Learned counsel for the petitioner has shown the language of Section 189 of IPC and has pointed out that on a bare reading of the language, the threat of injury is not seen.

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Learned counsel for the petitioner has further argued

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(3 of 6)

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[CRLMP-2755/2015]

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that as per Section 353 of IPC, the assault and criminal force is not reflected in the complaint.

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Learned counsel for the respondent has argued that cognizance has been taken by a Judicial Court, and therefore, the fulfillment of the requirement of Section 8 of the Act of 2005 is not there.

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Learned counsel for the respondent vehemently argued that the petitioner is sailing in two boats by saying that one side for one aspect, the police report is believable whereas on the other aspect, the police report is not believable.

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Learned Public Prosecutor has argued that in the present case, the revision is maintainable and thus, the exercise of constrained jurisdiction of Section 482 Cr.P.C. is not called for.

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This Court takes note of the fact that the Act of 2005 in Section 8 reads as follows:

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“ 8. Previous sanction for prosecution.—No prosecution for any offence punishable under this Act shall be instituted, except with the previous sanction of the Central Government or of any officer authorised in this behalf by general or special order of the Central Government. ”

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It is clear that as per the Section 8 of the Act of 2005, no prosecution for any offence punishable under this Act shall be instituted without sanction of the Central Government or any authorized officer and it is an admitted case that no such sanction is there. In light of the clear legislative intention, without

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(4 of 6)

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[CRLMP-2755/2015]

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prosecution under the Section 8 of the Act of 2005, the offence under Section 3, 4 & 5 cannot be carried on.

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11. Section 189 of IPC reads as follows:

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“189. Threat of injury to public servant.—Whoever holds out any threat of injury to any public servant, or to any person in whom he believes that public servant to be interested, for the purpose of inducing that public servant to do any act, or to forbear or delay to do any act, connected with the exercise of the public functions of 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.”

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12. Section 353 of IPC reads as follows:

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“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.”

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13. Section 44 of IPC reads as follows:

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“44. “Injury”.—The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. ”

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On bare reading of the statement of the complainant as well as witness, it is clear that the total allegation against the

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(5 of 6)

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[CRLMP-2755/2015]

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present petitioner was that he had threatened the complainant that if the complaint against the Jetha Ram driver was not taken back then the complainant shall suffer all serious consequences which include stopping of pension. This Court has also taken note of the fact that the incident of 09.11.2012 has been complained on 14.02.2013 after gross delay.

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This Court finds that necessary ingredients of the offence of Section 189 of IPC i.e. the threat of injury as defined under Section 44 of IPC clearly denote that there was no threat of any bodily, mindly, reputation or property in the present complaint. It is also observed that the necessary ingredients of assault or criminal force also cannot be formed on the face of the FIR and on the face of it, it is reflected that the complainant was called in court premises at 7:00 am when he was neither discharging his duties which would constitute the performance of the duty.

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The basic element of performing/discharge of duties is not made out in this case as neither the assault which is defined under Section 351 of IPC is apparently made out as per the statement of the complainant and nor from the language of complaint. It is an admitted fact that threatening was to impact the pension of the respondent and thus, no gesture or intention for use criminal force or assault is made out in the present set of facts.

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The explanation of Section 351 of IPC clearly makes it clear that, mere words do not amount to an assault. But the

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(6 of 6)

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[CRLMP-2755/2015]

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words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. Admittedly, no such gesture and preparation has been reflected in the complaint or in the statements of complainant as well as the witness Mahender Sewak. The learned court below has not seen the clear legislative intention under Section 8 of the Act of 2005 and the basic ingredients of the offence in the complaint are not made on the face of it and continuance of the proceeding, like the present one, shall amount to an abuse of the process of law, as a bare reading of the complaint and the statement made by the complainant and his witness clearly show that the necessary ingredients of Section 189 and 353 of IPC are not made out.

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In light of the aforesaid discussion, the present misc. petition is allowed and the order dated 03.09.2015 passed by learned Judicial Magistrate, Jaisalmer in Final Report No.42/2015 is hereby quashed and set aside. The stay petition also stands disposed.

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(DR. PUSHPENDRA SINGH BHATI)J.

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zeeshan/

Abdul Faqir v. State and Anr.

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Abdul Faqir v. State and Anr.

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