Allahabad High Court
Shri Gulab Singh And Others vs State Of U.P. And Another on 28 November, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 16.11.2022 Judgment delivered on 28.11.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 12039 of 2011 Applicant :- Shri Gulab Singh And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar Pandey,Satish Trivedi,Sheshadri Trivedi Counsel for Opposite Party :- Govt.Advocate,Kuldeep Singh Chahar Hon'ble Saurabh Shyam Shamshery,J.
1. Applicants (six in numbers), police officers, are before this Court being aggrieved by impugned summoning order dated 29.08.2009 passed under Section 204 Cr.P.C. in Case No. 7112 of 2008, Police Station- Jagdishpura, District- Agra, passed by Chief Judicial Magistrate, Agra, whereby they are summoned for offence under Sections 166, 218, 219, 221, 406, 120-B I.P.C.
2. Complainant (opposite party No.2) had set up a case that on 03.04.2004 about eight persons committed dacoity at his house and robbed Rs. 22 lakhs in cash and other valuable items. An F.I.R. was lodged and during investigation, police party conducted raid and arrested some accused persons and also recovered looted items of Rs. 1.25 lakhs which was handed over to the opposite party No.2. The complainant further alleged that applicants hatched a conspiracy and allowed arrested accused to run away and though recovery was of entire items robbed during occurrence but they handed over only a small part of it and remaining was misappropriated and as such they allegedly committed offence referred above. The investigation in the original F.I.R. was carry forwarded but final outcome is not on record. Meanwhile, complainant filed an application under Section 156(3) Cr.P.C. alleging the allegations referred above against the present applicants. The said application was considered as a complaint and only after statement recorded under Section 200 Cr.P.C., the applicants were summoned.
3. Sri Satish Trivedi, learned Senior Advocate assisted by Sri Sheshadri Trivedi for applicants has vehemently argued that -:
(1) It was a false case against the applicants. They have discharged their duties diligently and arrested accused persons and recovered looted items also which was handed over to the complainant and other allegation about not disclosing other alleged part of recovery was false and without any basis.
(2) The Magistrate has committed two errors, firstly, he has issued summoned against applicants without any prior sanction as the applicants are police officers and alleged offence was committed during discharge of their official duties and they are protected under Section 197 Cr.P.C. as well as opinion of the Magistrate that there were sufficient grounds to proceed against applicants was absent in the impugned order.
4. Per contra, learned A.G.A. has opposed the submissions and has stated that complainant suffered wrongful loss as under a conspiracy hatched by applicants, recovered cash and items were not handed over to him and that alleged act of police officers was beyond their official duty. Therefore, no sanction was required.
5. Opposite party No.2 was represented by Sri Kuldeep Singh Chahar, Advocate but he remained absent during hearing.
6. Heard learned counsel for applicants, learned A.G.A. for State and perused the record.
7. In order to appreciate the rival submissions, I have carefully perused the impugned order passed under Section 204 Cr.P.C. wherein the learned trial Court has narrated contents of complaint in almost more than 3 ½ pages and so far as formation of opinion that there were sufficient grounds to proceed against the applicants is concerned, only reference in impugned order is as follows -:
"तत्पश्चात वादी द्वारा धारा २०० द०प्र०सं० के अंतर्गत स्वयं का बयान कराया गया तथा सूची दिनांकित ०४.०२.२००८ के द्वारा कागजात क्रमांक एक लगायत ४४ प्रस्तुत किये गए।
पत्रावली के अवलोकन से स्पष्ट है कि परिवादी द्वारा अपने बयान अंतर्गत धारा २०० द०प्र०सं० में परिवाद के कथनों का समर्थन किया गया है। परिवाद पत्र एवं बयान अंतर्गत धारा २०० द०प्र०सं० व उपलब्ध प्रपत्रों एवं अन्य सामग्री के आधार पर प्रथम दृष्ट्या अभियुक्तगण ओ० पी० यादव, अभय सिंह, विनय कुमार वर्मा, गुलाब सिंह, के०पी० सिंह, आर०के० शर्मा, एस०के० सिंह, अनिल कुमार राय एवं सुभाष सिंह के विरुद्ध धारा १६६, २१८, २१९, २२१, ४०६ व १२०-बी का अपराध बनता है, लेकिन पत्रावली पर उपलब्ध सामग्री/साक्ष्य के आधार पर विपक्षी आशुतोष पांडेय के विरुद्ध प्रथम दृष्ट्या कोई अपराध बनता प्रतीत नहीं होता है। पत्रावली पर उपलब्ध सामग्री/साक्ष्य के आधार पर विपक्षीगण के विरुद्ध धारा १९१, १९२ व ४०९ भा०द०सं० का अपराध प्रथम दृष्ट्या प्रतीत नहीं होता है। ..."
8. From perusal of above referred part of impugned order, the requisite formation of opinion which ought to have been part of said order is missing. There is absolutely no application of mind why the offence under Section 166, 218, 219, 221, 406, 120-B was made out and why not offence under Section 191, 192, 409 I.P.C. was not made out as well as why these offences are not made out against one of the named proposed accused namely Ashutosh Pandey. There is no description of documents annexed along with the complaint.
9. The above order would also miserably failed if tested with the principles enumerated by Supreme Court in Lalankumar Singh v. State of Maharashtra, 2022 SCC OnLine SC 1383 and relevant paragraph thereof are mentioned hereinafter -:
38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation9, which reads thus:
"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
(emphasis supplied)
10. In view of above discussion, the impugned order suffers from illegality and is liable to be set aside.
11. There is another ground that formation of an opinionthat there were sufficient grounds to proceed was conspicuously missing and impugned order became erroneous that learned trial Court has not considered judgment passed by Supreme Court in Anil Kumar and others vs. M.K. Aiyappa and others, (2013) 10 SCC 705 and D. Devaraja vs. Owais Sabeer Hussain, (2020) 7 SCC 695 that protection under Section 197 Cr.P.C. to police personnel was available if alleged offence committed by a public servant was reasonably connected with discharge of their official duties, however, the learned trial Court has failed to consider this issue.
12. Accordingly, the impugned order dated 29.08.2009 is liable to be set aside on both grounds abovereferred, accordingly, set aside.
13. Application stands allowed.
Order Date :- November 28, 2022 Nirmal Sinha [Saurabh Shyam Shamshery, J.]