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Judgment
This application has been filed under Section 482 of Cr.P.C. for quashing the order dated 27-8- 2016 passed by 2nd A.S.J., Gwalior in Criminal Revision No. 278/2016, by which the order dated 14-6-2016 passed by J.M.F.C. Gwalior in Criminal Case No. 12732/2015 has been affirmed.
The applicant who is facing trial for offence under Section 171 of I.P.C., filed an application under Section 239 of Cr.P.C. for discharge. The said application was rejected by the Magistrate by order dated 14-7-2016, holding that since, the offence under question is to be tried as a Summons Case, therefore, there is no provision for discharge of accused.
Being aggrieved by the order of the Magistrate, the applicant filed a criminal revision which too has suffered dismissal by order dated 27- 8-2016.
It is submitted by the applicant that the Courts below have wrongly rejected the application filed by the applicant on the ground that the provisions of Section 239 of Cr.P.C. do not apply as the present case is a summons case. It is submitted by the Counsel for the applicant that it is true that the present case has to be tried as summons case and the provisions of Section 239 of Cr.P.C. would not apply, but the Trial Court has jurisdiction to stop the proceedings under Section 258 of Cr.P.C. and therefore, the Courts below should have considered the application under Section 258 of Cr.P.C. as it is well established principle of law that a wrong nomenclature/ or wrong mentioning of provision in application should not be a ground to reject the application. It is further submitted that even otherwise, on the merits also, no case is made out against the applicant. However, the Counsel for the applicant could not clarify that whether the substance of accusation as required under Section 251 of Cr.P.C. have been stated by the Magistrate or not.
Per Contra, it is submitted by the Counsel for the respondent that the applicant is working on the post of Security Officer, Tripple ITM, M.V.B. College, Gwalior and no uniform is prescribed for the said post but even then the applicant was wearing the police uniform with three stars on his shoulders without a ribbon which is equivalent to the post of Dy.S.P. He also used to carry his revolver. When the investigating officer asked for any order by which the applicant has been authorized to wear the uniform having the resemblance with the uniform of Dy.S.P., then no order could be produced before the investigating officer. Even the applicant has not filed any such order along with the application. Thus, by wearing the police uniform with three stars on his shoulders without ribbon, clearly shows that the applicant was wearing the uniform of a Dy.S.P. with an intention that it may be believed, or with the knowledge that it is likely to be believed that he is Dy.S.P. in the police department.
Heard the learned Counsel for the parties. Before adverting to the facts of the case, it would be appropriate to refer to Section 171 of I.P.C. which reads as under : "171. Wearing garb or carrying token used by public servant with fraudulent intent.-Whoever, not belonging to a certain class of public servants, wears any garb or carries any token resembling any garb or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description, for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both."
The applicant has filed a copy of the charge sheet along with the application. From the charge sheet it appears that one Saket Sahu, made a complaint that the applicant is working on the post of Security officer in Tripple ITM, but he is wearing the police uniform, Token etc with an intention and knowledge that it may be believed by the General Public that he belongs to police cadre and it was further alleged that the applicant has license of revolver issued by D.M., Kanpur which is not valid in State of Madhya Pradesh.
It is clear from the documents filed along with the application that several letters were written by S.H.O., Police Station Hazira to Director, Tripple ITM, Gwalior requiring him to clarify that under what Rule, the applicant is wearing the police uniform, Star, P Cap, Red Belt and Red Shoes and from which date the Uniform allowance or arm allowance is being given to the applicant. The coloured photograph of functions of 15 August and 26 January were also called as well as the legible copy of arms license was called. The letter dated 11-9- 2015 is being reproduced here by way of sample copy which reads as under : Another reminder dated 24-9-2015 was sent which was received in the office of Director Secretariat Tripple ITM, Gwalior in which it was specifically mentioned that clear reply is not being given and evasive replies are being given. The reminder dated 24-9-2015 reads as under :
It is not out of place to mention here that all the letters sent by the Police Station Hazira, Distt. Gwalior were replied by the applicant. One of the reply dated 7-9-2015 sent by the applicant on behalf of IIITM is reproduced as under : "To
Officer in charge
Police Station Hazira
Distt. Gwalior M.P.
SUB: INFORMATION IN RESPECT OF D.K. DWIVEDI SECURITY OFFICER OF THE INSTITUTE.
Kindly refer your letter No.1953/15 dated-nil and received on 28 Aug 15 and Reminder No.1 dated 01.09.15.
Undersigned has replied your letter on 28 Aug with all desired documents (four enclosures.) once again reply is submitted for your following 5 points:-
ABV-IIITM Gwalior is an autonomous institute of govt. of India and the Director is the competent authority for my uniform.
Information in respect of allowances paid by the institute can be obtained from the institute A/C sec.
3&4. Personal information can not be provided under sect 8(1) (i) of the RTI Act 2005.
A copy of arms license has been submitted to you on 28.08.15 and original you can see any time in my office.
Further you are requested to provide a copy of the complaint for further necessary action please.
Thanking you.
D.K. DWIVEDI
SECURITY OFFICER
C C TO: (for information.)
Director.
Registrar.
DY. Registrar (F&A)"
Thus, in reply to the specific query raised by the investigating officer that under what Rule, the applicant was wearing the uniform, star, P Cap, Red Belt and Red Shoes, it was replied by the applicant that 1-ABV-IIITM Gwalior is an autonomous institute of Govt. Of India and the Director is the competent authority for my uniform.
Another letter dated 9-9-2015 was sent by the applicant mentioning that if the RTI activist has some problem then he must approach the appellate authority of the institution or CIC of India and some senior police officer may be deputed to enquire into the fake complaint. The reply dated 9-9-2015 reads as under : "To
The Superintendent of Police
Dist. Gwalior M.P.
SUB: INFORMATION IN RESPECT OF D.K. DWIVEDI SECURITY OFFICER OF THE INSTITUTE.
Dear Sir,
Kindly refer our tele-com. of today, and enclosed correspondence between institute and addl. Sp, csp maharajpura and T. I. Hazira from sl.no.1 to 12. Undersigned has instructed to security provider of the institute and they have reported to addl sp and CSP M Pura office respectively.
The T I Hazira has been intimated twice that ABV-IIITM Gwalior is an autonomous institute of govt. of India and the Director is the competent to make the rules for the administration under iit & iiit Act.
Information in respect of allowances paid by the institute can be obtained from the institute P I O through RTI application by any person. Personal information cannot be provided under Section 8(1) (i) of the RTI Act 2005.
Still T I Hazira is sending reminders to the Director for the same information repeatedly without providing a copy of the complaint made by mr. Sanket Sahoo. If RTI worker has some problem then he must approach to appellate authority of the institute or CIC OF India.
Therefore, you are requested to detail some senior police officer to look into the matter and take necessary action in respect of fake complaints made against institute officers.
With kind regards,
Encls- as stated.
9.9.15
D.K. DWIVEDI
SECURITY OFFICER
C C TO: (for information.)
Director.
Registrar.
DY. Registrar (F&A).
T.I. Hazira (Gwalior)"
When the investigating officer insisted for the specific reply, then again a vague reply was sent on 24-9-2015 which reads as under : "ABV-IIITMG/Dir./15/752 Dated:24th Sep,2015
To,
The Officer In-charge
Police Station Hazira
Gwalior (MP).
Sub: Information related to Mr. D.K. Dwivedi, Security Officer.
Dear Sir,
This is with reference to your letter dated 24.09.2015 regarding information related to Mr. D.K. Dwivedi, Security Officer, ABV-IIITM Gwalior.
Mr. D.K. Dwivedi had requested for permission vide application dated 05.07.2010 regarding wearing uniform and related accessories. The request was made on the basis of such practice being followed in other similar Institute viz IIT Kanpur, IIT Delhi etc. ABVIIITM Gwalior is an autonomous Institute under the Ministry of Human Resources and Development, Government of India and is a Deemed University under UGC Act 1956 (copy of certificate is attached). The request was considered by the Institute and he was permitted to wear a uniform corresponding to the stature of Security Officer.
However, in view of the observations made by Police Authority an internal committee has been constituted to look into the matter and submit a report. Meanwhile Mr. D.K. Dwivedi has been advised to discontinue the use of uniform till further orders.
Thanking you,
With warm regards,
(S.G. Deshmukh)
CC to: The Superintendent of Police, Gwalior, City Centre Gwalior (MP) The Registrar, ABV-IITM Gwalior."
Again in this reply also, the IIITM Gwalior did not clarify that whether any Uniform has been provided for the post of Prescribed Security Officer or not? A vague reply was given that the applicant was permitted to wear a uniform corresponding to the stature of Security Officer. But by what order, the applicant was permitted to wear uniform was again not disclosed by the institute. Even no order has been placed on record. Thus, it is clear that in fact no separate order has been passed by the Director nor any Rule prescribes any Uniform for the post of Security Officer of IIITM Gwalior. This fact further finds corroboration that when the institute found it difficult to answer the queries raised by the investigating officer, then it ultimately directed the applicant not to wear the uniform which is evident from letter dated 24-9-2015. Thus, it is clear that the applicant was wearing the uniform of a police officer with three stars on his shoulders without a ribbon, with P Cap, Red Belt and Red Shoes without any authority.
So far as the question of issuance of license by the competent authority, Kanpur is concerned, the copy of the license is on the record and it appears that by order dated 5-7-2014 the validity of the arm license was extended to Delhi and Madhya Pradesh also. However, in the license also, the photograph of the applicant in the police uniform is affixed. It is not known that whether the applicant was earlier working in the police department or not, but from the license it appears that the applicant was working on the post of Asstt. Security Officer, IIT Kanpur. As the Trial is still pending then, it is for the Trial Court to adjudicate that whether the applicant at any point of time was ever authorized to wear a uniform which is meant for police officer or not? Therefore, this Court at this stage is refraining itself from giving any findings in the matter.
However, the crux of the matter is that neither the institute nor the applicant could produce any document to show that the applicant was ever permitted to wear the uniform which is synonymous to the uniform of Dy.S.P., or any uniform is prescribed under the rules.
The investigating officer has recorded the statements of the witnesses, who have specifically stated that the applicant used to wear the police uniform with three stars without a ribbon, red belt, red shoes and P cap. Even the photograph of the applicant are also on record in which the applicant is visible in the uniform like that of Dy.S.P. working in the police department.
Now, the question is that whether by wearing the uniform which is prescribed for the post of Dy.S.P., the applicant has committed an offence under Section 171 of I.P.C. or not?
By relying upon the judgment of Punjab and Haryana High Court passed in the case of Ajitinder Singh Vs. State of Punjab, 2000 CrLJ 1827 and K.S. Premachandra Kurup Vs. State of Kerala, 2013 CrLJ 1465, it is submitted by the Counsel for the applicant that even if the entire allegations are accepted, it cannot be said that the applicant had personated himself as a public servant. So far as the case of K.S. Premachandra Kurup and Ajitinder Singh are concerned, the facts are different and therefore, they are not applicable to the facts of the present case.
In the present case, the applicant has failed to show that under what authority he was wearing the police uniform with three stars, P Cap, Red Belt and Red Shoes. Section 171 of I.P.C. provides that even if the person has the knowledge that it is likely to be believed that he belongs to that class of public servant, then it would be an offence.
In the present case, according to the prosecution the applicant was wearing the Police uniform with three stars without ribbon, P cap, Red belt and red shoes, whereas he do not belong to police service and from the facts and circumstances of the case, it can be inferred that the applicant had the knowledge that it is likely to be believed that he belongs to that class of public servant. Thus, under the facts and circumstances it cannot be said that the material which is available on record is not sufficient to prima facie make out a case under Section 171 of I.P.C. As pointed out earlier that there is nothing on record that whether as per the provision of Section 251 of Cr.P.C., the substance of accusation has been stated by the Court below or not, therefore, at this stage, it is not known that what allegations have been levelled by the Trial Court as per provisions of Section 251 of Cr.P.C. Thus, this Court is of the view that prima facie offence under Section 171 of I.P.C. is made out against the applicant.
Before parting with this case, it is made clear that the observations in this order have been made in order to consider the submissions made by the applicant. As these observations have been made while considering the facts of the case within the limited scope of powers under Section 482 of Cr.P.C., therefore, the Trial Court is directed to decide the Trial on the basis of the evidence which would come on record without getting prejudiced by any of the observations made by this Court. Accordingly, the application filed under Section 482 of Cr.P.C. fails and is hereby dismissed.