The Himachal Pradesh High Court has allowed the appeal of Anurag Thakur, BJP MP and president of Indian cricket Board and quahed a criminal case registered against him and others by police in Dharamsala.
Justice Rajiv Sharma ruled yesterday that the Chief Judicial Magistrate, Dharamsala, had no jurisdiction in the case as there was no complaint in writing before him by the "public servant concerned or his superior".
"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 andaccordingly, the petition is allowed", the HC said.
"The complaint filed by the SHO, Police Staion, Dharamshala, before the Chief Judicial Magistrate, Dharamshala, ACJM, and summoning order dated March 10, 2014 and notice of accusation dated November 7,2015 and other consequential orders are quashed and set aside and pending applications, if any stand disposed off", the HC order said.
The appeal was filed by Anurag Thakur and others under Section 482 of the Code of Criminal Procedure praying for quashing of the complaint along with summoning order/notice of accusation and all other consequential proceedings.
The HC bench in its order pointed out that the petitioner (Anurag Thakur) was a third-time Member of Parliament and also elected as Secretary of the Board of Control Cricket in India in March, 2015.
A case of "causing obstruction in working of government servant" was registered against the defendantsbut the expression 'obstruct' used in Section 186 of Indian Penal Code envisages actual resistance and obstacle in the way of public servant and it implies use of criminal force.
So, if these petitioners are alleged to have assaulted the Dalpati and the Mukhia in the course of voluntarily obstructing the public servant from discharging their duties, the offences under Sections 323, 324 and 353 of Indian Penal Code are so connected with the primary offence of Section 186 of IPC that it is difficult to say that those offences constituted separate offences other than an offence under Section 186 of IPC.
The bench observed that "there must be a complaint by the public servant whose lawful order has not been complied with, the complaint must be in writing and provisions of Section 195 Cr.P.C are mandatory and the Court cannot assume cognizance of the case without such a complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.
(Reopen LGD10)
According to the complaint, Inspector Jagdish Chand, along with Inspector Prem Chand, Constable Yashpal and head constables Ashok Kumar, Rakesh Kumar and Sanjay Kumar and other staff members were present in the police station (state Vigilance and Anti Corruption Bureau in Dharamshala and thepetitioners, along with about 200-250 persons, entered the main gate, raised slogans and burst crackers.
They disrupted the administration for half an hour in the police station and the Office of Superintendent of Police and thus, committed the offence under Section 186 IPC, said the complaint.
However, the counsel for the petitioner argued that his clients never obstructed the public servants from discharging their public functions, as alleged in the complaint.
He argued that the mandatory provisions of Section 195 (1) (a) of Cr.PC had not been followed and asserted that 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.
Shrawan Dogra, Advocate General, argued that there was no breach of Section 195 (1) (a) Cr.PC as the petitioners, along with other persons, had obstructed voluntarily the public servants from discharging their duties by entering into the police station and the Office of the Superintendent of Police.
The SHO, PS Dharamshala, had moved an application before the Chief Judicial Magistrate(CJM), Kangra at Dharamshala, seeking sanction to initiate proceedings under Section 186 IPC and Anurag Thakur filed the reply on the affidavit of the Director General of Police and also filed rejoinder thereto.
The CJM in its order of November 2, 2013 allowed the application and permission was accorded to launch prosecution against the accused.
However, the petitioner did not plead guilty and claimed trial.
The HC bench said that the CJM, Kangra (Dharamsala), should have applied his judicial mind as to whether prima facie case existed as per the complaint under Section 186 of IPC and mandatory provisions of Section 195 (1) (a) Cr.PC. have been followed or not.
He had to ensure whether there were sufficient grounds to proceed or not and whether there were sufficient grounds for conviction as per the contents of the complaint.
