Delhi District Court
Sudhir Shahi vs State on 13 August, 2018
:1: Sudhir Shahi v. State
CR No. : 360/2017
IN THE COURT OF SHRI HARISH DUDANI
SPECIAL JUDGE, (PC ACT) (CBI) 01
DISTRICT COURTS(SW), DWARKA, NEW DELHI.
In the matter of :-
CR No. : 360/2017
SUDHIR SHAHI
S/o Shri Tarkeshwar Shahi
R/o G-647, Jahangirpuri,
Delhi - 110 033.
......... Revisionist
VERSUS
STATE
Through Public Prosecutor
......Respondent
Criminal Revision No. 360/2017
Date of Institution 05.08.2017
Reserved for orders on 01.08.2018
Judgment announced on 13.08.2018
JUDGMENT
1. This is a revision petition under section 397/399/401 Cr.PC filed by the revisionist against the impugned order CR No: 360/2017 Page No. 1 of 17 D.O.O. : 13.08.2018 :2: Sudhir Shahi v. State CR No. : 360/2017 dated 03/06/2017 passed by Ld. CMM, Dwarka Courts, New Delhi, whereby the Ld. CMM, Dwarka Courts has been pleased to dismiss the application under section 258 Cr. PC filed by the accused(revisionist herein) for discharging him and stoppage of proceeding initiated against him. Briefly stated relevant facts for the disposal of this revision petition are as under:-
2. The revision petition arises out of the case FIR No. 595/2014 PS Najafgarh for the offences under sections 279 & 304 A IPC titled as State v. Sudhir Shahi registered on the basis complaint/tehrir dated 06.07.2014 of the complainant Shri Chhatrapati, wherein the complainant has stated that on 06.07.2014 he and his cousin Ram Kumar were going to Chhawla Stand, Najafgarh on their separate cycles and at about 10.20AM they reached in front of Metro Hospital, Chhawla Stand and the truck of Delhi Police bearing registration number DL 1G B 5197 hit cycle on which Shri Ram Kumar was riding as a result of which, Ram Kumar fell down and sustained injuries and he was taken to Metro Hospital and he was declared as brought dead. In his complaint, Chhatrapati has stated that driver of the aforesaid truck bearing registration number DL 1G B 5197 whose name was later on declared as Sudhir Shahi, was apprehended at the spot and the accident has taken place on account of rash and negligent driving of truck No. DL 1G CR No: 360/2017 Page No. 2 of 17 D.O.O. : 13.08.2018 :3: Sudhir Shahi v. State CR No. : 360/2017 B 5197 by Ct. Sudhir Shahi.
3. On the basis of statement of Chhatrapati dated 06.07.2014, case FIR No.595/2014 was registered at PS Najafgarh under sections 279 & 304 A IPC. After conclusion of the investigation, the prosecution filed charge sheet in the court of Ld. CMM for the offences under sections 279 & 304A IPC against the accused (revisionist herein). The accused(revisionist herein) filed an application dated 15.07.2016 under section 258 Cr. PC before the trial court and the same was dismissed by the Ld. CMM vide impugned order dated 03.06.2017.
4. Aggrieved by the aforesaid impugned order dated 03/06/2017 whereby the application dated 15.07.2016 under section 285 Cr. PC was dismissed, the accused (revisionist herein) has filed the present revision petition stating therein that the revisionist is a professional driver (constable) in the service of Delhi Police and vehicle involved in the accident was being driven by the accused (revisionist herein) to carry police personnel on the instructions of Duty Officer to the designated place and route which was taken by the accused (revisionist herein) was very busy road and he was driving the vehicle at low speed. It is further stated in the revision petition that other police personnel who were in truck suddenly heard that CR No: 360/2017 Page No. 3 of 17 D.O.O. : 13.08.2018 :4: Sudhir Shahi v. State CR No. : 360/2017 somebody had fallen down from the cycle and got hurt and it was not clear as to what happened and crowd gathered at the spot and the accused(revisionist herein) alongwith other police personnel got down to see what had happened and they found that a boy got hurt and the said boy was rushed to the hospital where he met his demise and an FIR No.592/2014 under sections 279/304A IPC was registered at PS Najafgarh. It is stated in the revision petition that IO has not obtained sanction from the concerned Department before filing the charge sheet which was mandatory to fulfill the requirements of the Delhi Police Act. It is stated that by way of the application under section 258 CrPC, the accused (revisionist herein) prayed for stoppage of proceedings and discharging him under section 258 Cr. PC primarily on the ground that the IO has not obtained sanction from the concerned Department prior to filing of the charge sheet. It is further stated in the revision petition that order passed by the Ld. Trial Court is illegal, improper and unjustified and the Ld. Trial court has failed to consider whether a public servant has committed an act under the colour of duty or not. It is further stated in the revision petition that Ld. Trial court has arrived at the incorrect conclusion and has wrongly denied the benefit of section 140 Delhi Police Act 1978.
5. I have heard Ld. Counsel for the accused (revisionist CR No: 360/2017 Page No. 4 of 17 D.O.O. : 13.08.2018 :5: Sudhir Shahi v. State CR No. : 360/2017 herein) and the Ld. Addl. PP for the State/respondent and perused record.
6. The contention of the Ld. Counsel for the accused (revisionist herein) is that the accused (revisionist herein) is a public servant and the accident had taken place by the government vehicle, which was being driver by public servant in discharge of official duties and on that account, the prosecution was required to obtain sanction under section 140 of the Delhi Police Act, 1978 (hereinafter referred as 'DP Act') before initiating criminal proceedings against the accused (revisionist herein). It is contended that since offence was committed in the course of official duties and in discharging of official duties hence the prosecution initiated against the accused (revisionist herein) without obtaining any sanction under section 140 of DP Act is bad in the eyes of law.
7. Ld. Addl. PP for the State/respondent has strongly opposed the revision petition contending that although at the time of accident, the accused (revisionist herein) was driving the government vehicle during the course of his employment as driver (constable) in Delhi Police but it cannot be said that the sanction for prosecution under section 140 DP Act is required for initiating the prosecution against the accused (revisionist herein) as it cannot be said CR No: 360/2017 Page No. 5 of 17 D.O.O. : 13.08.2018 :6: Sudhir Shahi v. State CR No. : 360/2017 that accident was caused by the accused (revisionist herein) under the colour of his duties. The Ld. Addl. PP has contended that the allegations against the accused (revisionist herein) are that he caused death of Shri Ram Kumar by driving the official vehicle in rash and negligent manner and driving in rash and negligent manner cannot be said to be under the colour of duty or in the excess of duties. The Ld. Addl. PP has contended that the revision petition has no merits and the same is liable to be dismissed.
8. The main thrust of the arguments of the Ld. Counsel for the accused (revisionist herein) is that the proceedings against the accused (revisionist herein) have been initiated by filing the charge sheet under section 173 Cr. PC for commission of offences under sections 279 & 304 A IPC without obtaining sanction under section 140 DP Act from the administrator and on that account, the proceedings are likely to be dropped under section 258 Cr. PC. The criminal proceedings against the accused (revisionist herein) have been initiated for the offences under sections 279 & 304A IPC.
9. Section 279 IPC reads as :
279. Rash driving or riding on a public way.- Whoever drives any vehicle, or rides, on any public way in a manner so rash or CR No: 360/2017 Page No. 6 of 17 D.O.O. : 13.08.2018 :7: Sudhir Shahi v. State CR No. : 360/2017 negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
10. Section 304A IPC reads as :
304A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
11. The accused (revisionist herein) has sought protection of section 140 DP Act on the ground that accident has taken place by the vehicle which was being driven by him in discharge of his official duties.
12. Section 140 of the Delhi Police Act, 1978 reads as :
140. Bar to suits and prosecutions. (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or CR No: 360/2017 Page No. 7 of 17 D.O.O. : 13.08.2018 :8: Sudhir Shahi v. State CR No. : 360/2017 authority or in excess of an such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a Police Officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time CR No: 360/2017 Page No. 8 of 17 D.O.O. : 13.08.2018 :9: Sudhir Shahi v. State CR No. : 360/2017 and manner of service thereof.
13. The accused (revisionist herein) has relied on the decision of the Hon'ble High Court of Delhi in Manoj Pant v. State, Criminal Miscellaneous (Main) Appeal No.649 of 1995 in which Hon'ble High Court of Delhi has been pleased to observe:
11. One thing is certain and it is that in order to come under the protective umbrella of Section 140 of the Delhi Police Act, the act must have been done "under colour of duty of authority or in excess of any such duty or authority. In other words, the Section does not extend its protective cover to every act or omission done by a police officer in service but restricts its scope of operation to only those acts or omissions which are done under colour of duty or authority or in excess of any such duty or authority. For instance, and I am borrowing it from P. Arutswami v. State of Madras MANU/SC/0092/1966: 1967 Cri LJ665, a police officer in discharge of his duty may have to use force which may be an offence of the prosecution of which sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of CR No: 360/2017 Page No. 9 of 17 D.O.O. : 13.08.2018 :10: Sudhir Shahi v. State CR No. : 360/2017 his duty then the bar is not attracted.
14. As per the aforesaid decision of Hon'ble High Court of Delhi in Manoj Pant v. State (supra), the protection from prosecution as provided in Section 140 DP Act applies only to those acts and omissions, which have been done in the colour of duty or authority or in excess of any such duty or authority.
15. Sections 59 and 60 of the Delhi Police Act, 1978 provides duty of police officer. Section 59 of the Delhi Police Act, 1978 reads as:
59. Duty of Police officer to enforce provisions of the Act.- (1) It shall be the duty of every police officer to ensure compliance with the provisions of this Act or any rule, regulation or order made thereunder and for that purpose such police officer may,-
(a) warn persons who from ignorance fail to comply with any provision of this Act or any rule, regulation or order made there under;
(b) require any person acting or about to act contrary to any provision of this Act or rule, regulation or order made thereunder, to desist from so doing;
(c) subject to the provisions of sub-sections (2) and (3), arrest any person contravening any provision of this Act or any rule, regulation or order made CR No: 360/2017 Page No. 10 of 17 D.O.O. : 13.08.2018 :11: Sudhir Shahi v. State CR No. : 360/2017 thereunder, where such contravention is an offence punishable under this Act;
(d) seize any object used, or about to be used, in contravening, or in contravention of, the provisions of this Act or any rule, regulation or order made thereunder, where such contravention is an offence punishable under this Act. (2) A police officer shall not arrest any person under clause (c) of sub-section (1) without a warrant issued by a Metropolitan Magistrate, unless such person-
(a) has contravened any regulation made under clause (b) of sub-section (1) of section 28;
(b) has contravened any order or notification made under section 29, sub-section (1) or sub-section (2) of section 30, section 32, section 47, section 48 or sub-section (1) of section 57;
(c) commits in the presence of such police officer an offence punishable under section 97, sub-
section (1) of section 108, clause (a), (b) or (c) of section 110 or sub- section (2) of section 113 in respect of the contravention of any order made under section 33 or section 34;
(d) has committed, or is reasonably suspected to have committed, an offence punishable under section 100 in relation to any dwelling house, private premises or any other land or ground attached thereto:
CR No: 360/2017 Page No. 11 of 17 D.O.O. : 13.08.2018 :12: Sudhir Shahi v. State CR No. : 360/2017 Provided that the person in possession of having charge of that dwelling house, private premises or land or ground complains of the commission of such offence;
(e) has committed, or is reasonably suspected to have committed an offence punishable under section 101 section 102 or clause (c) of sub-section (2) of section 113;
(f) commits in his presence in any street or public place any non-cognizable offence punishable under this Act or any rule, or regulation made thereunder if such person-
(i) after being warned by the police officer persists in committing such offence; or
(ii) refuses to accompany the police officer to a police station on being required so to do. (3) The Commissioner of Police or any other police officer especially empowered in this behalf by the Commissioner of Police may arrest without a warrant issued by a Metropolitan Magistrate any person who has committed an offence punishable under section 92.
16. Section 60 of the Delhi Police Act, 1978 reads as:
60. Other duties of a police officers.- It shall be the duty of every police officer-
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(a) promptly to serve every summons and obey and execute every warrant or other order lawfully issued to him by the competent authority and to comply with all lawful commands of his superior;
(b) to the best of his ability, to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to lay such information and to take such other steps consistent with law and with the order of his superiors as shall be best calculated to bring offenders to justice and to prevent the commission of cognizable and, within his view, of non-cognizable offences;
(c) to prevent to the best of his ability the commission of public nuisances;
(d) to apprehend without unreasonable delay all persons whom he is legally authorised to apprehend and for whose apprehension there is sufficient reason;
(e) to aid any other police officer when called upon by such other police officer or in the case of need in the discharge of the duty of such other police officer, in such ways as would be lawful and reasonable on the part of the officer aided;
(f) to prevent the breach of the public peace;
(g) to afford every assistance within his power to disabled or helpless persons in the streets;
(h) to take charge of intoxicated persons and of lunatics at large, who appear dangerous or incapable or taking care of themselves;
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(i) to take prompt measures to procure necessary help for any person under arrest or in custody, who is wounded or sick and whilst guarding or conducting any such person to have due regard to his condition;
(j) to arrange for the proper sustenance and shelter of every person who is under arrest or in custody;
(k) in conducting searches, to refrain from needless rudeness and the causing of unnecessary annoyance;
(l) in dealing with women and children, to act with strict regard to decency and with reasonable gentleness;
(m) to use his best endeavours to prevent any loss or damage by fire;
(n) to use his best endeavours to avert any accident or danger to the public;
(o) to regulate and control traffic in the streets, to prevent obstructions therein and to the best of his ability, to prevent the contravention of any rule, regulation or order made under this Act or any other law in force for observance by the public in or near the streets;
(p) to keep order in the streets and at and within public bathing and washing places, fairs, temples and all other places of public resort and in the neighbourhood of places of public worship;
(q) to regulate resort to public bathing and washing places and all other places of public resort, to prevent overcrowding there and to the best of his ability, to CR No: 360/2017 Page No. 14 of 17 D.O.O. : 13.08.2018 :15: Sudhir Shahi v. State CR No. : 360/2017 prevent the contravention of any regulation or order lawfully made for observance by the public at such place; and
(r) to discharge such other duties as are imposed upon him by any law for the time being in force.
17. As per the decision of Hon'ble High Court of Delhi in Manoj Pant v. state (supra), the section 140 of the Delhi Police Act, does not extend its protective cover to every act or omission done by a police officer in service but restricts its scope of operation to only those acts or omissions which are done under colour of duty or authority or in excess of any such duty or authority. In Manoj Pant v. state (supra), it was further held that if an act is committed by an officer in the course of service but not in discharge of his duty then the bar is not attracted.
18. As per the allegations of prosecution, the accused (revisionist herein) has committed offences punishable under sections 279 & 304 A IPC by driving the vehicle in rash and negligent manner and thereby caused death of Shri Ram Kumar. The accused (revisionist herein) has nowhere pleaded that offences under sections 279 & 304 A IPC were committed by him while discharging his duty as provided under sections 59 and 60 of the Delhi Police Act as police officer. Even if the alleged act is committed under CR No: 360/2017 Page No. 15 of 17 D.O.O. : 13.08.2018 :16: Sudhir Shahi v. State CR No. : 360/2017 the course of service but not in discharge of his duty then bar of section 140 of the Delhi Police Act shall not be available to the accused (revisionist herein).
19. In S. I. Manoj Pant v. State of Delhi, Crl. Rev. 214/96, the Hon'ble High Court of Delhi has been pleased to hold that the application of the object of provision under section 140 D. P. Act is to prevent malicious prosecution against a police officer.
20. This is not the plea of the accused(revisionist herein) that the criminal proceedings for commission of offences under sections 279/304A IPC have been initiated against him for any malicious reason. In the circumstances, it is not open for the accused (revisionist herein) to plead that criminal proceedings initiated against him for commission of offence under sections 279/304A IPC are barred by the provisions of section 140 of the Delhi Police Act on account of not taking the permission for initiating the proceedings from the Administrator.
21. Consequently, in view of above said discussions, I find no infirmity or illegality in the impugned order dated 03.06.2017 passed by the trial court. The Criminal Revision Petition is devoid of merits and the same is dismissed.
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22. Trial Court Record be sent back to the court concerned along with copy of this judgment.
23. The revision file be consigned to Record Room.
Announced in the open Court (HARISH DUDANI) as on today i.e. 13.08.2018 Special Judge (PC Act)(CBI)-01 District Courts(SW), Dwarka New Delhi.
Digitally signed by HARISH HARISH DUDANI
DUDANI Date:
2018.08.13
14:31:18 +0530
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