Jharkhand High Court
Mohammad Arshi vs The State Of Jharkhand on 18 August, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
Cr.M.P. No. 156 of 2020
----
Mohammad Arshi, aged about 40 years, son of Mohammad Iliyas, resident of D-8/28, Officer's Colony, Near Nepal House, Doranda, P.O. and P.S. Doranda, Ranchi, District Ranchi ..... Petitioner
-- Versus --
1.The State of Jharkhand
2.Ashish Kumar Dubey, aged 29 years, son of Sri Devendra Nath Dubey, resident of Village Chiniya Road, Sahijana, P.O. and P.S. Garhwa, District-
Garhwa, Jharkhand ...... Opposite Parties
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner :- Mr. Indrajit Sinha, Advocate Mr. Rishav Kumar, Advocate For the State :- Mr. Hatim, Advocate For the O.P.No.2 :- Mr. Abhay Kumar Mishra, Advocate
----
4/18.08.2022 Heard Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner, Mr. Abhay Kumar Mishra, the learned counsel appearing on behalf of the O.P.No.2 and Mr. Hatim, the learned counsel appearing on behalf of the respondent State.
This petition has been filed for quashing the entire criminal proceeding including the order dated 02.12.2019 in connection with Complaint Case No.836 of 2018, pending in the court of learned Chief Judicial Magistrate, Garhwa.
The complaint case has been filed alleging therein that the complainant is a practicing Advocate. On the date of alleged occurrence i.e. on 30.04.2018 at about 08.30 P.M., the complainant while returning home in his motorcycle from the market, got stuck in a traffic jam and all of sudden, the vehicle of Superintendent of Police, Garhwa's car approached from behind and 5-6 body came out of the car and looted the complainant's mobile and asked if he was Advocate Ashish Dubey and when he confirmed about such identity, upon the instructions of this petitioner the bodyguards started abusing and assaulting the complainant in front of everybody 2 because of which the complainant sustained injuries. After such assault, the complainant was taken to the police station by the petitioner and his bodyguards and thereafter again abused and assaulted the complainant in the police station. One Gorelal Kunwar looted the mobile phone of the complainant and kept him in police custody the entire night without any food. On 01.05.2018 the complainant was released on personal bond. The complainant has also alleged that before putting his signature on the personal bond, he had been insisted to sign another personal bond which mentioned that the complainant had tried to disturb the peace by making comments on religion which will disturb the peace of the society but the complainant had refused to sign such personal bond.
The complainant has further stated that after he was released from custody of the police, he went to the office of the District Bar Association, Garhwa, and showed the injuries sustained by him. The complainant also gave a written complaint to the District Judge, Garhwa, who in turn informed the Deputy Superintendent of Police after which the complaint underwent medical treatment under the supervision of a Magistrate duly appointed by the Sub-Divisional Magistrate, Garhwa, from where the complainant was further referred to RIMS, Ranchi. On 01.05.2018, the complainant had given his Fardbayan but no FIR was registered and on the contrary a false FIR being Garhwa P.S.Case No.164 of 2018 was registered against the complainant. The reason for targeting the complaint was that the complainant was conducting a case being Complaint Case No.3338 of 2017 at Garhwa which was filed against the Chief Minister. A writ petition being W.P.(PIL) 3 No.2255 of 2018 was also filed on behalf of the complainant. On the basis of the aforesaid allegations, the above noted complaint case was instituted against the petitioner and other co-accused persons.
Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner submits that the petitioner was posted as S.P., Garhwa and he was subsequently transferred from the said post and presently he has been entrusted with several charges. He submits that what has occurred that was in discharge of the official duty. He submits that the learned court has taken cognizance by order dated 02.12.2019 without considering section 197 Cr.P.C as he was discharging the official duty and without sanction the cognizance order is bad in law. He submits that on 30.04.2018 there was a traffic jam at Ranka More and upon such information on wireless, one Ramvadan Singh, Sub-Inspector, CCR, Garhwa along with other police officials went to the said spot. As soon as they reached there, they saw the complainant taking photos of the traffic jam and was trying to create a commotion. In the meanwhile, the petitioner who also happened to reach the spot with his guards was trying to remove the traffic jam. While doing so, this O.P.No.2 caught hold of one bodyguard's collar and was abusing the police and then for such act of the complainant, an FIR being Garhwa P.S.Case No.164 of 2018 was registered against O.P.No.2 which is still pending. He further submits that since the matter was related with a lawyer a P.I.L was filed by the practicing Advocate which was numbered as W.P.(P.I.L) No.2255 of 2018 and in that P.I.L certain directions were issued and it was also ordered to initiate the department proceeding against this petitioner. Pursuant thereto, the department proceeding has been initiated and the petitioner has been exonerated in the departmental proceeding, however, few constables have been punished. He further submits that pursuant to 4 departmental proceeding it was brought before the Division Bench hearing the aforesaid P.I.L, by order dated 04.01.2019 considering the statement of the complainant which was recorded in the departmental proceeding, the Court disposed of the said P.I.L. He submits that on the same set of evidence, criminal prosecution has been instituted which was the subject matter of the departmental proceeding. He submits that in the departmental proceeding, the complainant has been examined and considering the statement of the complainant, the Division Bench has disposed of the P.I.L and to allow the complaint to remain pending will amount to abuse of the process of law.
Per contra, Mr. Abhay Kumar Mishra, the learned counsel appearing on behalf of the O.P.No.2 submits that the complainant is a practicing Advocate of Garhwa and he was miss-handled by the police and considering that aspect of the matter the Division Bench in the said P.I.L directed to institute a complaint case against the petitioner and it was directed that the said complaint will be enquired by the learned court and it will not be sent to the police. He further submits that the witnesses have been examined in the complaint and thereafter the learned court has taken cognizance. He submits that there is no nexus of departmental proceeding as well as the criminal proceeding. He further submits that he was not discharging the official duty and that is why section 197 Cr.P.C is not attracted to the petitioner. On these grounds, he submits that the petition is fit to be dismissed.
Mr. Hatim, the learned counsel appearing on behalf of the respondent State also contended that section 197 Cr.P.C is not attracted in the case of the petitioner and he submits that there is no illegality in the impugned order.
In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has perused the materials 5 on record, and finds that on 30.04.2018 for altercation between the police and the complainant, the complainant was taken to the police and later on he was released on bond for that P.S.Case No.164/2018 has also been lodged which is still pending. Pursuant to the directions of the Division Bench of this Court in the P.I.L, the complaint case has been registered against the petitioner. The direction of the Division Bench was also taken care of by the respondent State and the departmental proceeding has been initiated against the petitioner in which he has been exonerated. However, the guilty persons against whom the departmental proceeding proved they have been punished. Looking into the records, it is crystal clear that there was a road jam and the petitioner was discharging the official duty and this petitioner was posted as S.P., Garhwa at that time and when he reached the spot and if he has taken any action in clearing the jam, it cannot be said that he was not discharging the duty. The petitioner is an I.P.S officer. For correct appreciation of section 197 Cr.P.C, it is quoted hereinbelow:
"197. Prosecution of Judges and public servants.-- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]--
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.] [Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public 6 servant accused of any offence alleged to have been committed under Section 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, 5[Section 376-A, Section 376-AB, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB] or Section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
[(3-A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
In the case of P.K. Pradhan v. State of Sikkim, (2001) 6 SCC 704, at paragraph no.5, it has been held as under:
"5. The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official 7 duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code: "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation."
With regard to Section 197 Cr.P.C. again it has been held by the Hon'ble Supreme Court in the case of Gauri Shankar Prasad v. State of Bihar and Another, (2000) 5 SCC 15, wherein at paragraph no.7, it has been held as under:
7. Section 197 CrPC affords protection to a Judge or a magistrate or a public servant not removable from his office save by or with the sanction of the Government against any offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The protection is provided in the form that no court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government as the case may be. The object of the section is to save officials from vexatious proceedings against Judges, magistrates and public servants but it is no part of the policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rules laid down in Section 190 CrPC, that any offence may be taken cognizance of by the Magistrates enumerated therein. Before this section can be invoked in the case of a public servant two conditions must be satisfied i.e. (1) that the accused was a public servant who was removable from his office only with the sanction of the State 8 Government or the Central Government; and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
Section 197 Cr.P.C was earlier the subject matter before the Hon'ble Supreme Court in the case of Abdul Wahab Ansari v. State of Bihar and Another, (2000) 8 SCC 500, wherein at paragraph no.7 it has been held as under:
7. Previous sanction of the competent authority being a precondition for the court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan a similar contention had been advanced by Mr Sibal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted.
Rejecting the contention, this Court had observed: (SCC pp. 217- 18, para 23) "The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings."
The Court had further observed: (SCC pp. 218-19, para 24) "The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal 9 proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority."
The action of the police was against the subject matter in the case of K.Kalimuthu v. State by D.S.P, (2005) 4 SCC 512, wherein at paragraph no.15 it has been held as quoted below:
15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted.
After going through the above judgments, it is crystal clear that the court is precluded from entertaining the complaint or taking note of it or exercising judicial power if a public servant has committed offence in discharge of his official duty, from this view of the Apex Court, it is clear that if the public servant in discharge of his official duty has committed any offence in which complaint is made, sanction of the Government or the competent authority is pre-requisite condition. Moreover, this petitioner has faced the departmental proceeding pursuant to the order passed by the Division Bench in the aforesaid P.I.L and he has been exonerated. It is well settled that if a departmental proceeding with regard to the same allegation the employee is exonerated the criminal case is not made as held by the Hon'ble Supreme Court in the case of 'Ashoo Surendranath Tewari v. CBI', (2020) 9 SCC 636. Paragraph no.12 of the said judgment is quoted below:
"12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows:
(Radheshyam Kejriwal case, SCC p. 598) 10 "38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
The Division Bench has disposed of the said P.I.L considering that the statement of the O.P.No.2 has also been taken in the departmental proceeding and the Division Bench has also looked into the statement of the complainant and thereafter came to the conclusion that there is no need of continuing with the said P.I.L. The order dated 04.01.2019 passed in W.P.(PIL) No.2255 of 2018 is quoted hereinbelow:
"Heard the writ petitioner in person and learned Advocate General, representing the State respondents.
The matter relates to the assaults made upon an advocate of Garhwa, Sri Ashish Kumar Dubey, by police. The result of the departmental proceeding against the then S.P., Garhwa, has been brought on record, which also contains the statement of the victim advocate Sri Ashish Kumar Dubey. The then S.P., Garhwa has been exonerated in the departmental enquiry and looking into the statement of the victim advocate himself, as recorded in the enquiry report, prima facie, we do not find any material to proceed with this writ petition, any further.
One S.I. and three constables have been held guilty in the separate departmental proceeding and they have been awarded some punishments. We are also informed that one complaint case is also pending, as filed by 11 the victim advocate Sri Ashish Kumar Dubey.
In that view of the matter, we do not find any material to keep this writ petition pending, which is, accordingly, disposed of. The aforesaid interlocutory application also stands disposed of.
We only make it clear that the complaint case, filed by the victim advocate Sri Ashish Kumar Dubey, shall be dealt with, in accordance with law, without in any manner, being prejudiced by any statements/orders in this writ petition."
In view of the above facts, the reasons and the analysis, considering that the petitioner was discharging the official duty and he has been exonerated in the departmental proceeding and the statement of the complainant has been looked by the Division Bench and pursuant thereto the P.I.L has been disposed of, to continue with the criminal proceeding in this petition will amount to abuse of the process of law.
Accordingly, the entire criminal proceeding including the order dated 02.12.2019 in connection with Complaint Case No.836 of 2018, pending in the court of learned Chief Judicial Magistrate, Garhwa is quashed.
Cr.M.P.No.156 of 2020 stands allowed and disposed of. I.A., if any, also stands disposed of.
( Sanjay Kumar Dwivedi, J.) SI/,,