Allahabad High Court
I.P.S. Yadav vs State Of U.P. And Another on 8 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 650
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 77 A.F.R. Case :- APPLICATION U/S 482 No. - 22966 of 2019 Applicant :- I.P.S. Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pradeep Kumar,Rajnish Kumar Rai,Shri Krishan Yadav Counsel for Opposite Party :- G.A.,Deepti Tiwari,Monica Vaish Hon'ble Ram Krishna Gautam,J.
Heard Sri Pradeep Kumar, learned counsel for the applicant, Ms. Monica Vaish, learned counsel for O.P. No. 2 and learned A.G.A. representing the State. Perused the records.
This application, under Section 482 Cr.P.C., has been filed by applicant I.P.S. Yadav against State of U.P. and Amit Vaish with prayer to quash the summoning order dated 21.2.2019 as well as order issuing N.B.W. and entire proceedings of Complaint Case No. 1099 of 2019, Amit Vaish Vs. I.P.S. Yadav, under Sections 392, 427, 447 I.P.C., P.S. Naini, district Prayagraj, pending in court of A.C.J.M., Court No. 2, Allahabad.
Learned counsel, for the applicant, argued that accused-applicant is an officer in Indian Railways and was performing his official duties, in view of letters previously written to the District Magistrate, Prayagraj, as well as concerned Station Officer of P.S. Naini, Prayagraj, regarding encroachment done over land in question belonging to Indian Railways and performance of official duties. Above act was performed in discharge of official duty for which this F.I.R. was got lodged, wherein a proceeding u/s 482 Cr.P.C. was filed before this court, but as final report was submitted in the above case crime number, hence above proceeding u/s 482 Cr.P.C. was held to be infructuous and was dismissed. Subsequently a protest petition was filed and over this petition, cognizance was taken, but summoning order was not there. Rather the Magistrate opined for proceeding as a complaint case, thereby recorded statements of complainant u/s 200 Cr.P.C. and of his two witnesses u/s 202 Cr.P.C. Then after by a cryptic order, without applying judicial mind, passed the impugned order of summoning, for which, there required a sanction, as per section 197 Cr.P.C. This was abuse of process of law and no Public officer will perform his official duty because of such threat being given by Land Mafias and others. Hence this application with above prayer.
Learned A.G.A. has vehemently opposed the above submission.
Learned counsel for O.P. No. 2 argued that it was not the land of Indian Railways. Rather it was land of complainant, purchased vide registered sale deed from its erstwhile owners and inherited by the complainant, being grandson of Late Somnath Vaish. He was owner in possession having construction over it and this construction was destroyed and damaged and belongings of complainant were looted by accused-applicant under his individual capacity, for which there required no sanction. Even D.R.M. had not passed any order for such demolition or taking of property of complainant. Hence this conclusion of Investigating Officer for submission of final report was against fact on record, because the property was acquired in a proceeding for which a proceeding by way of a writ was filed before this court, wherein a reply was submitted by the Revenue Department by way of counter affidavit, wherein it was admitted that above disputed plot nos. 133 and 134 were not required. Rather those plots were released for which a Government Order was passed and it was filed along with counter affidavit. Hence, above land was neither acquired nor belonged to Indian Railways. Even then this act has been done by the accused-applicant in his personal vengeance. Hence this matter may be raised before the Magistrate, where applicant is appearing through counsel, for making appreciation by the Magistrate, for consideration over discharge, if any, and sanction may be taken at any stage subsequent to it also. Hence this proceeding be dismissed.
Having heard learned counsel for both sides and gone through the material placed on record, it is apparent that cognizance taking order is on the basis of final report, submitted by the Investigating Officer, in above case crime number, after investigation and then after a decision regarding proceeding as a complaint case was there. Hence in above investigation and in the final report, submitted in above case crime number, it was specifically mentioned that the land belonged to Indian Railways and it was entered in the name of Indian Railways along with G.E.C. Company. A proceeding for declaration of right before Revenue Court u/s 229B of U.P.Z.A.L.R. Act, filed by complainant, was dismissed mentioning therein that it was a land belonging to Indian Railways. Nowhere it is apparent that after release the land was entered in the name of its erstwhile owners or compensation paid was returned back and what was the situation of land?, in possession as well as title. Though, order of status quo is said to be in operation granted by Board of Revenue. Accordingly, this final report was submitted on the basis of the fact that the land in dispute belongs to Indian Railways and alleged occurrence was committed by an officer of Indian Railways in performance of his official duty. Hence this fact was there on record before the Magistrate concerned and while considering on protest petition, this final report was accepted, but cognizance for offence was taken. The Magistrate did not summon accused on the basis of cognizance taken by him. Rather he decided to proceed as a complaint case. Subsequently, statements u/s 200 and 202 Cr.P.C. were got recorded and then after impugned summoning order was passed. But neither reason for absence of sanction nor ownership of land of Indian Railways nor performance of official duty by a public officer in assistance of public force i.e. R.P.F. was there in the summoning order. Though Magistrate need not to pass an elaborate and reasoned order, while passing summoning order u/s 204 Cr.P.C. But it is also there that it must appear that there is application of judicial mind and upon this application a prima-facie commission of offence for which cognizance is to be taken and summoning is to be made, is made out. But in the present case, there was mention that property in question and construction raised there at were an encroachment over Railways land and it was an act by a Railway officer in performance of his official duty with assistance of Railway Police Force and the Magistrate failed to take note of this circumstance or to make any discussion over this point in the summoning order.
Apex Court in State of U.P. Vs. Paras Nath Singh, (2009) 6 SCC 372 by a three Judges Bench has propounded that 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. According to Black's law Dictionary the word 'cognizance' means 'Jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. This has been reiterated by Apex Court in Criminal Appeal Nos. 1590, 1591 of 2013 (in S.L.P. Criminal No. 6652, 6653 of 2013), M. K. Ayappa Vs. State. Hence, in the present case, all these requirements were needed, while passing a summoning order and taking of cognizance. But no iota is there. Hence it is completely abuse of process of law.
Accordingly, this application merits to be allowed.
This application u/s 482 Cr.P.C. is allowed and the impugned summoning order is hereby quashed. The file is being remanded back to the Magistrate Court concerned for making an enquiry afresh u/s 200 and 202 Cr.P.C. and then after pass a fresh reasoned order in view of requirement of sanction and legal precedents.
Order Date :- 8.1.2020 Pcl