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A Delhi Court of Special Judge Vikas Dhull (MPs/MLAs Cases) on Tuesday upheld the 2 year imprisonment imposed on Aam Aadmi Party legislator, Somnath Bharti in the AIIMS assault case of 2016.

“...the appeal of appellant is partly allowed and part of the impugned judgment convicting and sentencing the appellant for the offence under Section 323/353 IPC read with Section 149 IPC are accordingly, set aside.”

The facts of the present case date back to 2016 when an FIR was registered on 10.09.2016 on the basis of a complaint against Somnath Bharti, Jagat Saini, Dileep Jha, Sandeep, Rakesh Pandey and approximately 300 unknown associates of Som Nath Bharti for allegedly breaking the fence of boundary wall of AIIMS with JCB for creating an access to AIIMS on 09.09.2016.

“It is further alleged in the complaint that they were requested to produce the orders of the Competent Authority but they failed to produce any document. It is also alleged that the fence on the boundary wall of Government property was damaged and when the complainant had objected, they had misbehaved with the security persons and some security persons also got minor injuries while protecting the Government land. Accordingly, a prayer was made to lodge a FIR and take strict action against the accused persons”
– stated the complaint.

Consequently, Additional Chief Metropolitan Magistrate, Ravindra Kumar Pandey sentenced Somnath Bharti to simple imprisonment for a period of two years for the offence punishable under Section 3 (1) of the Prevention of Damage to Public Property Act (PDPP Act) along with a fine of Rs.1,00,000.

“The Ld.Trial Court, after hearing the final arguments, had vide the impugned judgment acquitted four co-accused persons as their identity could not be established on record and only appellant was found guilty for the offence under Section 323/353/147 read with Section 149 IPC and Section 3 of PDPP Act. Accordingly, appellant was sentenced vide impugned sentence order as mentioned hereinabove.”

Further while deciding the appeal, the Court did not find any illegality in the conviction under Section 147/149 IPC as the evidence showed that unlawful assembly comprised 200- 300 persons and hence the, acquittal of other four accused persons would have no bearing.

The Court, however stated that the AIIMS security personnel did not come under the purview of the definition “public servant” in Section 353 IPC.

“Section 21 IPC- Public Servant -The words “public servant” denote a person falling under any of the descriptions hereinafter following, namely:-

Clause (12).--Every person— (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

 (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).]”

“in the present case, PW2 Sh.Ajay Kumar, PW3 Sh.Santosh Kumar, PW4 Sh.Dinkar Kumar Chaudhary and PW5 Sh.Ved Prakash were not public servants, therefore, no offence under Section 353 IPC was made out and Ld.Trial Court wrongly convicted the appellant for the offence under Section 353 IPC read with Section 149 IPC.”

The evidence which has been led on record by the respondent/State shows that the control and possession of the drain and the wall was that of the AIIMS and as per the evidence led by the appellant, said wall belonged to MCD and in both eventuality, the wall on the drain falls within the definition of “public property”. “…prosecution had proved beyond reasonable doubt that wall and the fence over it was a public property and the same was damaged by the use of JCB machine by the unlawful assembly. of which appellant was the member, and therefore, Ld.Trial Court had rightly convicted him for the offence under Section 3(1) of PDPP Act and I do not find any illegality or infirmity in the same.”

Accordingly, “appeal is dismissed qua the conviction and sentence of appellant u/s 147 IPC read with Section 149 IPC and under Section 3(1) of PDPP Act. Appellant be taken into custody and be sent to Jail for serving the sentence as awarded by the Ld.Trial Court vide its sentence order dated 23.01.2021 for the offence under Section 147 IPC read with Section 149 IPC and under Section 3(1) of PDPP Act.”

Case title- Somnath Bharti v State,2021

Law point- Section 323/353 IPC read with Section 149 IPC , u/s 147 IPC read with Section 149 IPC and under Section 3(1) of PDPP Act