Full Judgment Text
REPORTABLE
2024 INSC 600
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 520 OF 2012
MAHENDRA KUMAR SONKER APPELLANT(s)
VERSUS
THE STATE OF MADHYA PRADESH RESPONDENT(s)
J U D G M E N T
K.V. Viswanathan, J.
1. The present appeal calls in question the
judgment dated 14.10.2009 passed by the High
Court of Judicature at Jabalpur, Madhya Pradesh in
Criminal Appeal No. 1949 of 2007. By the said
judgment, the appellant’s conviction under Section
353 of the Indian Penal Code, 1860 (for short ‘the
IPC’) and sentence of six months simple
imprisonment and fine of Rs. 1,000/- imposed by the
Signature Not Verified
Special Judge, Sagar has been confirmed. Aggrieved,
Digitally signed by
Deepak Singh
Date: 2024.08.13
13:45:08 IST
Reason:
the appellant is in Appeal.
1
2. Originally, the appellant along with his wife
Mamta stood trial. While the appellant was charged
for offences under Sections 7, 13(1)(d) read with 13(2)
of the Prevention of Corruption Act, 1988 (for short
‘the Act’) as well as Sections 201 and 353 of the IPC,
his wife Mamta was charged under Section 353 and
201 of the IPC.
3. We are, in this appeal, concerned only with the
conviction of the appellant under Section 353 of the
IPC. The appellant has been acquitted of other
charges and his wife Mamta has been completely
acquitted including for the offence under Section 353
of the IPC. Accordingly, only those aspects of the
facts which have a bearing on the present appeal are
set out hereinbelow.
Brief Facts:
4. The complainant in the original corruption case is
one Babulal Ahirwar (PW-1). It appears that on his
complaint to the Collector about the irregularities in the
2
work of construction of the Education Guarantee
Building, the then President of the Committee constituted
for the purpose of construction, Santosh Ahirwar was
removed from the President’s post.
5. The appellant, who was posted as Patwari in Circle
No. 89, Village Naryaoli, District Sagar had been
entrusted with the inquiry into a complaint against the
said Babulal Ahriwar to the effect that he had made a
false complaint against Santosh Ahirwar. It transpires
that the appellant, in the inquiry, found the charge
against Babulal Ahirwar to be false. When Babulal
Ahirwar sought a copy of the report from the appellant,
the case of the prosecution is that the appellant
demanded a sum of Rs. 500/- as illegal gratification.
6. The said Babulal Ahirwar, on 28.06.2004, filed a
complaint with the Superintendent of Police, Special
Police Establishment Lokayukt, Sagar against the
appellant in this regard. An FIR was registered under
Section 7 of the Act and trap proceedings were organized.
3
O.P. Tiwari (PW-4) and M.K. Choubey were co-opted along
with the trap party which consisted of Head Constable
Niranjan Singh, Constable Raj Kumar, Constable Shiv
Shanker Dube and Inspector N.K. Parihar. The case set
up by the prosecution was that they waited for the
accused-appellant and when he arrived at his house,
Babulal Ahirwar accosted him and handed over the
currency to the appellant and signaled to the trap party.
The trap party arrived there to apprehend the appellant.
7. We are directly concerned with what transpired at
this point since the only surviving Section under which
the appellant has been convicted is Section 353 of the
IPC. We will deal with this aspect in detail a little later in
the judgment.
8. Special Case No. 20 of 2005 was registered against
the appellant and his wife for the offences mentioned
hereinabove. The appellant and his wife denied the
charges and claimed trial. Prosecution examined thirteen
witnesses and the defence examined three witnesses.
4
9. By the judgment of 05.09.2007, the learned Special
Judge, Sagar while acquitting the appellant for offences
under Sections 7, 13(1)(d) read with 13(2) of the Act and
Section 201 of the IPC, convicted him for the offence
under Section 353 of IPC and sentenced him to undergo
simple imprisonment for six months. Additionally, a fine
of Rs. 1000/- was imposed and the appellant’s wife was
acquitted of all the charges.
10. Aggrieved, the appellant preferred an appeal to the
High Court which has since been dismissed.
11. Insofar as the charge under Section 353 of the IPC
was concerned, the allegation was that the appellant in
collusion with his wife with an intention to obstruct the
members of the trap team in performing their public duty
during the trap proceeding, attacked them or exercised
criminal force on them. It is this part of the case which
has been believed by the courts below.
12. We have heard Mr. Siddharth Aggarwal, learned
senior counsel for the appellant and Mr. Arjun Garg,
5
learned counsel for the respondent State.
CONTENTIONS:
13. Mr. Siddharth Aggarwal, learned senior counsel
contended that the courts below were not justified in
recording the conviction under Section 353 of IPC; that
on the same evidence the wife of the appellant, Mamta
has been acquitted; that the evidence of PW-1 Babulal
Ahirwar, PW-4 O.P. Tiwari, PW-8 N.K. Parihar, PW-9
Niranjan Singh read with the evidence of PW-13 Dr. H.L.
Bhuria, do not make out a case for conviction under
Section 353 of IPC against the appellant and that none of
the ingredients required to maintain a conviction under
Section 353 of IPC have been established. Mr. Arjun Garg,
learned counsel for the State defended the conviction and
prayed that no case for interference with the concurrent
conviction is made out.
14. We have carefully considered the arguments of the
parties and have perused the records of the case,
6
including the original records.
15. At the outset, we extract hereinbelow Section 353 of
the IPC:
“ 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.”
A perusal of Section 353 indicates that whoever assaults
or uses criminal force (a) to any person being a public
servant in the execution of his duty as such public
servant, or (b) with intent to prevent or deter that person
from discharging his duty as such public servant, or (c)
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 the
imprisonment of either description for a term which may
7
extend to two years, or with fine, or with both.
16. It is important at this stage to notice the definition of
criminal force as defined in Section 350 of the IPC.
“ 350. Criminal force. - Whoever intentionally uses
force to any person, without that person’s consent, in
order to the committing of any offence, or intending by
the use of such force to cause, or knowing it to be likely
that by the use of such force he will cause injury, fear
or annoyance to the person to whom the force is used,
is said to use criminal force to that other.”
As would be clear, what is required to establish criminal
force is intentional use of force to any person without
that person’s consent in order to the committing of any
offence.
17. Section 349 of the IPC which defines force is
extracted hereinbelow :
“ 349. Force. - A person is said to use force to another if
he causes motion, change of motion, or cessation of
motion to that other, or if he causes to any substance
such motion, or change of motion, or cessation of
motion as brings that substance into contact with any
part of that other’s body, or with anything which that
other is wearing or carrying, or with anything so
situated that such contact affects that other’s sense of
feeling: Provided that the person causing the motion, or
change of motion, or cessation of motion, causes that
8
motion, change of motion, or cessation of motion in one
of the three ways hereinafter described.
First . - By his own bodily power.
Secondly . - By disposing any substance in such a
manner that the motion or change or cessation of
motion takes place without any further act on his part,
or on the part of any other person.
Thirdly . - By inducing any animal to move, to change
its motion, or to cease to move.”
18. Assault under Section 351 of the IPC would mean
whoever makes any gesture, or any preparation intending
or knowing it to be likely that such gesture or preparation
will cause any person present to apprehend that he who
makes that gesture or preparation is about to use
criminal force to that person.
19. In this background, if we peruse the evidence on
record, insofar as the charge under Section 353 of the
IPC is concerned, it will transpire that none of the
ingredients required for convicting a person under
Section 353 of IPC were attracted.
20. PW-1 Babulal Ahirwar, insofar as this part of the
event that transpired is concerned deposed as under:
“6. ….The name and address was asked from the
9
accused and the accused was caught. On being
asked from the accused about the money he became
uncontrolled and tried to run from there. Taking
advantage of the dark, the accused threw away those
notes.
7. With much difficulty the accused could be won
over. The wife of the accused also came at that time
and crowd had also gathered there. Wife of the
accused was striking her head on the jeep…..”
(Emphasis supplied)
21. PW-4 O.P. Tiwari has deposed as under:
“3. ….When we caught hold of the accused he was not
having money. The applicant then told that the accused
has thrown the money in the dark. Thereafter the
Inspector started searching the money by starting the
torch. The Inspector found in the light of the torch, one
50 rupees note lying. Inspector Parihar took that note
up and gave it to me and asked me to keep it. Other
notes were also searched there but notes could not be
found there.
4. After that we tried to apprehend the accused
patwari and forced him to sit in the vehicle to take him
to police station Naryaoli but the accused Patwari
objected to it. In spite of the objection taken by the
accused anyhow the accused was made to sit in the
vehicle. At the same time the wife of the accused
arrived and lay down before the vehicle. In such a
condition the vehicle was reversed and turned back and
we had to go to police station. When the vehicle moved
the wife of the accused started her head striking with
the bonnet of the vehicle. Other persons present there,
caught hold of the wife of the accused and removed her
from there only then we people took the vehicle and
started for police station Naryaoli….”
10
(Emphasis supplied)
22. PW-8 N.K. Parihar has deposed as under:
“6. ….Therefore the trap team surrounded the
accused and tried to apprehend him. The accused
objected to it forcefully so they could not catch him all
of a sudden.
7. The accused had shouted so crowd had assembled
there. In the meanwhile the accused took out the bribe
notes from his pocket and had thrown them. The
accused was apprehended. On searching the notes on
the ground only one note of Rs.50/- was seen which
panch witness Shri Tiwari picked up. Looking to the
opposition, we took accused to police station Naryaoli
where solution of sodium carbonate was prepared,
which was colouring less….
xxx xxx xxx
9. ….I had given one application in regard to the
incident to Station House Officer Naryaoli, photocopy of
which is enclosed. On 30.6.2004 I had filled MLC form
for getting medically examined the head constable
Niranjan Singh, myself & Rajkumar Sen, on which I
had signed which are P-22 to P-25 respectively. After
that I had handed over the case for investigation to
D.S.P. Shri Ranjan Tiwari.”
(Emphasis supplied)
23. We have also perused the original record insofar as
the application given to the Station House Officer is
11
concerned, the translated portion obtained officially reads
as under:
“To
The PS In-charge
Sic Narayavali (Madhya Pradesh)
Subject - Regarding the accused Mahendra Kumar of
trap.(Sic)
Shri Mahendra Sonkar was caught taking bribes
on 29/06/03 at 8 O'clock. He called out to his wife. The
woman clung to her husband to free him. She put her
head on the jeep sic and grabbed the accused's hand
and started pulling him out of the jeep. The accused
also grabbed her hand so that he could escape from the
case by taking shelter of his wife. He also threw bribe
notes but only one note was recovered in the trap sic.
The accused created a lot of ruckus which disrupted
the work. Please investigate this case.
Sd/-illegible 29.6.04
Sd/-illegible
29.6.04
(Shyam Bihari Mishra H.C.)”
(Emphasis supplied)
This document however does not appear to have been
exhibited.
24. We have also seen Exh.P-22 to Exh.P-25. The
translated portions of which read as under:
“ Exh.P-22:
To
The Medical Officer,
District Hospital Sagar District
12
Sagar
Subject: Regarding medical examination of the injuries
sustained by Head Constable Niranjan Singh, Special
Police Establishment, Lokayukta, Sagar Division, Sagar
and submitting a report
During the trap proceedings dated 29-6-2004 in
Crime No.0/04 under Section 7, 13(1) 13(2) PC Act
1988, when accused Mahendra Kumar Sonkar and his
wife tried to resist, Head Constable Niranjan Singh
sustained the following injuries. Please examine and
submit a report.
1. Injury with swelling near the right eye
2. Injury with swelling on the ankle of the right foot
Sd/-illegible
30.6.04
SPL No.20/05
Ex P 22
PW8
21.11.06
(Satyendra Kumar Singh)
Special Judge and
First Additional Session Judge, Sagar
(Emphasis supplied)
Exh.P-23:
To
The Medical Officer
District Hospital
Sir,
It is requested that Mahendra Sonkar accused of
Crime No.0/04 and his wife opposed the proceedings,
as a result Inspector N.K. Sic sustained injuries in the
middle finger of left hand causing swelling. Kindly
examine and send report.
Sd/-
30.6.24
SPL No.20/05
13
Ex P23
PW8
21.11.06
Sd/-
(Satyendra Kumar Singh)
Special Judge and
First Addl Sessions Judge, Sagar
Exh.P-24:
Illegible
Subject : Constable Rajkumar illegible
It is requested that in Case Crime No. sic 7, 13(1)
D, 13(2) PC Act, Mahendra Kumar Sonkar and his wife
tried to sic avoid the proceedings and resisted and
hence the constable has suffered the following injuries
to examine & give the report.
1. Swelling in the wrist of the right hand
2. Small scratches on both hands
3. Many sic injuries
Sd/-illegible
30.6.04
SPL NO.20/05
Ex P24
PW8
21.11.06
(Satyendra Kumar Singh)
Special Judge and
First Additional Session Judge, Sagar
(Emphasis supplied)
Exh.P-25
Sic District
Subject: Constable Shivshankar sic
In the proceedings of Crime No.0/04 u/s 7, 13(1)D,
sic PC Act, accused Mahendra Kumar Sonkar sic and
his wife resisted in which constable sustained following
injuries. Examine and give the report.
14
1. There is swelling in the little finger of the right hand.
2. There is pain in the chest and back.
Sd/-illegible
30.6.04
SPL NO.20/05
Ex P.25
P.628
21.11.06
(Satyendra Kumar Singh)
Special Judge and First
Additional Session Judge, Sagar”
(Emphasis supplied)
25. PW-9 Niranjan Singh has deposed as under:
“2. …After some time the non-applicant Patwari came
by his motorcycle and he contacted with the applicant
in front of his residence. The applicant gave the amount
of bribe to the accused Patwari. He took it in his hand
and placed it in the pocket of his shirt.
3. During this time constable Shivshanker and
Rajkumar suddenly tried to catch and the accused
patwari tried to run away and constable Shivshanker
and Rajkumar caught him. At the same time taking
advantage of the darkness, the accused threw away the
bribe money on the ground and the accused began to
swing and jerk (‘jhooma-jhatki’ as available from the
Hindi version). At the same time wife of the accused
came out of the residence and began to cry. Enough
crowds assembled at the spot of incident and patwari
was doing too much swing and jerk….
During the incident I had suffered injuries near my
right eye and at the ankle of the right leg. In this regard
my medical examination was also done at District
hospital Tili Sagar”
(Emphasis supplied)
15
26. We have also examined the evidence of Dr. H.L.
Bhuria PW-13, who recorded the injuries as mentioned
hereinabove and stated that the injuries might have been
caused with hard and blunt object.
(Emphasis supplied)
27. We have also carefully perused the defence witnesses
including the evidence of DW-2 Sitaram Chourasia who
generally states that three to four persons came and there
was pushing and shoving (‘dhakka mukki’ as is evident
from the Hindi deposition) between the accused and
those persons.
28. Having considered the oral evidence and the medical
evidence, we are constrained to conclude that the
prosecution has not established that the appellant has
assaulted or used criminal force against the trap party.
In fact, what transpires is that when the appellant was
apprehended there appears to have been an attempt by
the appellant to wriggle out and jostling and pushing
16
appears to have happened, in the process of the appellant
trying to extricate himself from the arrest. None of the
ingredients of assault or criminal force have been
attracted.
29. Further, there is absolutely no evidence to show that
the accused used any hard and blunt object. PW-13 Dr.
H.L. Bhuria had deposed that the injuries on PW-9
Niranjan Singh, PW-8 N.K. Parihar, Constable Raj Kumar
and Constable Shivshankar might have been caused by
hard and blunt object. In view of the above, there is no
evidence to indicate that the accused assaulted or used
criminal force on the trap party in execution of their
duties or for the purpose of preventing or deterring them
in discharging their duties. In short, none of the
ingredients of Section 353 are attracted. The jostling and
pushing by the accused with an attempt to wriggle out,
as is clear from the evidence, was not with any intention
to assault or use criminal force.
30. In fact, it will be interesting here to contrast Section
17
353 of the IPC with Section 186 of the IPC under which
Section the appellant has not been charged. Section 186
of the IPC reads as follows.
“186. Obstructing public servant in discharge of
public functions.- Whoever voluntarily obstructs
any public servant in the discharge of his public
functions, shall be punished with imprisonment of
either description for a term which may extend to three
months, or with fine which may extend to five hundred
rupees, or with both.”
31. To take cognizance of Section 186, the procedure
under Section 195(1)(a)(i) of the Cr.P.C. ought to have
been followed. There is not even a complaint by the
officer against the appellant for any offence having been
committed under Section 186 of the IPC.
32. In view of the above, we have no hesitation in setting
aside the judgment of the High Court. The result would
be that the appellant would stand acquitted for the
offence under Section 353 of the IPC. The Conviction
under Section 353 of the IPC and the sentence imposed
are set aside. The appeal is allowed. The bail bonds shall
stand discharged.
18
………........................J.
[ ]
B.R. GAVAI
……….........................J.
[ K. V. VISWANATHAN ]
……….........................J.
[ NONGMEIKAPAM KOTISWAR SINGH ]
New Delhi;
August 12, 2024.
19