Delhi District Court
Sh. Longshri vs State (Nct Of Delhi) on 3 December, 2012
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE03(NE) : KARKARDOOMA COURTS: DELHI.
ID no. 02402R0166362012
Cr. Revision No. 37/12
PS M.S Park
Sh. Longshri
W/o Sh. Kali Ram
R/o 1/3886, Bhagwan Pura Khera, Loni
Road, Shahdara, Delhi32 ..... Revisionist
Versus
1. State (NCT of Delhi)
2. J. P. Bhardwaj @ Jitender Singh, Station House Officer,
P.S. Loni, Ghaziabad, UP.
3. S.I. P. K. Sharma
4. HC Mool Chand Kaushik
5. Ct. Jasbir Bhati
6. Ct. Bhopal Singh
7. Ct. Rajender
8. Ct. Harpal
9. HC Roshan Lal
10.Ct. Bhikam Singh
11.HC Babu Khan
All police personals of PS Loni, Ghaziabad, UP.
12.Manoj Yadav s/o Sh. Suraj Singh
Cr. Revision No.37/12 1/14
R/o B141, Khajoori Khas, Delhi110094.
13.Bhim Singh
S/o Late Sh. Chunni Lal
R/o Khasra no. 1103, Raj Nagar,
Behta Hazipur, Loni, Ghaziabad, UP.
........Respondents
ORDER:
1. Vide this order I shall dispose of a criminal revision petition filed by the revisionist Smt. Longshri against the order dated 23.03.12 passed by Ld. MM Sh. Ankur Jain, KKD courts, Delhi by which he dismissed the complaint filed by the revisionist Smt. Longshri.
2. I have heard counsel for the revisionist Mr. C.M. Arif and Addl. PP for the State / Respondent no. 1 and gone through the entire record including the order passed by the trial court and the rulings filed on behalf of counsel for the revisionist.
3. Before proceeding further I would refer to the brief backgrounds of the case which are necessary for disposal of the present revision petition. The facts as disclosed in the complaint are that on 12.10.01 at about 9.30 PM the revisionist Cr. Revision No.37/12 2/14 Longshri along with her son namely Vicky aged about 14 ½ years was sitting in her shop. All of a sudden respondent no. 3 SI P. K. Sharma, Incharge police post Hazipur Behta, PS Loni, District Ghaziabad along with 10/12 police persons and Mukesh, Virender and Manoj came to the shop of the revisionist in jeep no. UP14J7080. All the respondents were intoxicated. The respondent no. 3 SI P. K. Sharma asked about the husband of the revisionist from her and when the revisionist asked as to why they were asking about her husband then the respondent SI P. K. Sharma and his colleagues used a very filthy language against her and after pushing the revisionist, SI P. K. Sharma and his associates tried to forcibly take the son of the revisionist. The revisionist made hue and cry due to which the local residents gathered there and they objected against the illegal act of the respondent no. 3 and his colleagues. Not only this, respondent no. 3 SI P. K. Sharma and his colleagues broke the lock of the house of her brother in law (devar) i.e. H. no. 1/3885, and forcibly entered into the house and they also tried to outrage modesty of her sister in law (nanad). When she raised objection Cr. Revision No.37/12 3/14 respondent no. 3 SI P. K. Sharma and his associates gave slaps/beatings to her. Thereafter they forcibly took away the car bearing no. DL2CL2366 of the brother in law of the complainant/revisionist and before leaving the spot the respondent no. 3 SI P. K. Sharma and his associates broke the household articles of the brother in law (devar) of the revisionist. That when the respondent no. 3 SI P. K. Sharma and his colleagues were taking the son of the revisionist namely Vicky and the car belonging to her brother in law (devar), the revisionist and her neighbours tried to stop them and ran behind them to stop them but on the point of revolver they forcibly took away the son of the revisionist and the car belonging to her brother in law. That brother in law of the revisionist informed the police about the incident on 100 number telephone and before the arrival of the PCR van, the respondent no. 3 SI P.K. Sharma and his associates brought the car of brother in law (devar) of the revisionist and her son Vicky. Thereafter, the matter was complained to the officials of PS M. S Park, SI Man Singh, Ct. Devender and Ct. Udaivir got conducted MLC of sister in law of the revisionist. The Cr. Revision No.37/12 4/14 police officials of PS Loni gave merciless beatings to the son of the revisionist namely Vicky aged 14 ½ years and illegally detained him in the police lock up and threatened to falsely implicate him in some false cases of heinous nature. On 13.10.01 the revisionist went to respondent no. 3 SI P.K. Sharma who took Rs. 10,000/ in bribe from the revisionist and then he set free her son at about 3.00 PM on 13.10.01 and not only this he also took Rs. 800/ from the pocket of her son. The complaint regarding the above acts of respondent no. 3 SI P.K. Sharma and his colleagues was given to DCP, North East District, Police Commissioner and other authorities and since no action was taken on the complaint of the revisionist, she approached the trial court.
4. On the complaint of the revisionist the then Ld. MM vide his order dated 23.10.01 ordered for registration of FIR and investigation. Police filed the cancellation report before Ld. MM to which the protest petition was filed which was treated as a complaint case. The complainant/ revisionist examined six witnesses in support of its case viz. CW1 Babu Khan Malik, CW2 Vijay Pal, CW3 Longshri (the Cr. Revision No.37/12 5/14 revisionist), CW4 Vicky (Son of the revisionist), CW5 Sanjeev Kumar and CW6 Raj Kumar Tomar. After hearing the revisionist Ld. MM vide his order dated 23.3.12 dismissed the complaint and the present revision petition has been filed by the revisionist against the said order on the ground that there has been no application of judicial mind; that the impugned order has been passed on the basis of presumption and surmises; that Ld. MM has travelled beyond pleadings and committed irregularity in passing the impugned order. It has also been submitted that the trial court dismissed the complaint of the revisionist and made an observation that 'Hon'ble Supreme Court stated that a police officer in discharge of his duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary u/s 197 Cr PC and since accused no. 1 and 2 (Respondent no. 2 and 3) are public servant and in the absence of the same, accused cannot be summoned' and ignored the fact that the respondent committed a serious offence of kidnapping of a minor child aged about 14 ½ years and also extended threats to the revisionist and her neighbors to kill if Cr. Revision No.37/12 6/14 they tried to stop them. It is also stated that FIR no. 771/2001 PS Loni was registered against the family of the revisionist in the night of 13.10.01 after 1.40 AM and the present crime of kidnapping of the minor son of the revisionist was committed by the respondents on 12.10.11 at 9.30 PM. It is also stated that the trial court dismissed the complaint of the revisionist on the ground that revisionist did not disclose in her complaint about the case no. 771/2001 of PS Loni and ignored that when the complaint was lodged against the respondents, the revisionist had no knowledge or reason to know that a false case had been registered against her family members by the respondents. Therefore, a request has been made for setting aside the order passed by the trial court and for summoning for trial respondent no. 2 to 13 in the present matter.
5. I have perused the order passed by Ld.MM wherein he has discussed the cancellation report filed by the police in which it was stated that FIR no. 771/01 u/s 147/148/149/307 IPC PS Loni Ghaziabad was registered against Raj Kumar, his brother Kali Ram their father Nirmal Singh on the allegation that they came in Maruti car no. DL2CL2366 and Cr. Revision No.37/12 7/14 fired a shot at one Badri Prasad due to provocation of property dispute. The investigation of the case was entrusted to respondent no. 2 SI P .K. Sharma. During the course of investigation SI P.K. Sharma had called Samru and Vicky to ascertain the whereabouts of accused persons/ respondents to collect the information of the case, however, they were released on the same date. It is further stated that on 13.10.01 SI P.K. Sharma apprehended accused and recovered maruti car at his instance. Ld. trial court has observed in his order that the complainant/ revisionist and the witnesses examined did not disclose the factum of FIR registered against Raj Kumar, Kali Ram and Nirmal Singh in PS Loni and that accused no.2 (respondent no.3 herein) was IO of that case. It is also stated that younger sister Rekha was taken to GTB hospital as per the statement of CW6 and was medically examined. However, no medical certificate has been placed on record. Neither the same has been proved by the complainant nor she has been examined. Thirdly, not even a single word has been mentioned by any of the witnesses against J. D. Bhardwaj who is accused no. 1 (respondent no.2 herein). It has further been observed Cr. Revision No.37/12 8/14 that in fact on the close scrutiny of the statement of CW6 it is apparent that initially the car was not taken, it was only on the second occasion that the vehicle was taken which is completely contradictory to the statement of other witnesses. The trial court also observed that since no sanction was obtained for the prosecution of accused no. 1 and 2 (respondent no. 2 and 3), therefore in the absence of the same the accused cannot be summoned.
6. Ld. defence counsel has placed a number of rulings on record to buttress his arguments that no sanction was required in this case as the acts done by respondent no. 3 SI P. K. Sharma was of misuse or abuse of powers vested in a public servant and it cannot be called to be a part of official duties required to be performed by him. He has relied upon the following judgments:
(i) Choudhary Parveen Sultana vs. State of West Bengal & Anr., AIR 2009 Supreme Court 1404
(ii) Raj Kishor Roy vs Kamleshwar Pandey and Another, AIR 2002 Supreme Court 2861
(iii) A.K. Singh and others vs Uttarakhand Jan Morcha and Cr. Revision No.37/12 9/14 others, 1999 Cri. L.J. 3500
(iv) Abani Ch. Biswal vs State of Orissa and another, 1988 Cri. L. J. 1038.
7. There is no dispute about the proposition of law that all acts done by public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of section 197. In the cases where there is misuse and / or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by them and therefore in such case, sanction u/s 197 Cr PC is not required. Though, the act alleged against the respondents cannot be said to be in discharge of the official duties. However, the allegations made in the complaint are not inspiring much confidence.
8. In the application u/s 156 (3) Cr PC filed before the court of Ld. MM in para 4 it was specifically stated that "the brother in law/ devar of the applicant/complainant informed the police about the said incident on 100 number telephone and before the arrival of the PCR van, the above said accused no. 2 and his colleagues had brought the car of the devar and Cr. Revision No.37/12 10/14 the son of the complainant / applicant." If the accused no. 2 / respondent no. 3 SI P.K. Sharma had brought the car and son of the complainant before arrival of PCR where was the occasion for the complainant to have gone to the PS to get her son released from the custody of SI P. K. Sharma and pay bribe of Rs 10,000/. The allegations made in the complaint are contradictory.
9. Though it is stated that SI Man Singh, Ct. Devender and Ct. Udaivir got conducted MLC of sister in law/ nanad of the complainant/ revisionist. However, no MLC is placed on record. Nor has she been examined as a witness before the court. It is also alleged that the police officials of PS Loni gave merciless beatings and illegally detained Master Vicky in the police lock up. However, he was never got medically examined and there is nothing on record to substantiate the allegations made by the complainant/ revisionist.
10. CW6 Raj Kumar Tomar stated in his testimony before the court on 30.03.11 that on 12.10.01 at about 9.30 PM when he was coming back from the market he saw lot of public outside the house of his elder brother. He asked the reasons for Cr. Revision No.37/12 11/14 the same and came to know that 1015 UP police officials have taken away his nephew Vicky. He also came to know that when police officials had come along with them Yashpal (cousin brother) had also come. Though in the complaint name of Yashpal is not disclosed, it is only stated police persons were accompanied by Mukesh, Virender and Manoj. He made a call to PCR. When they were waiting for the local police, the UP police officials again came back and broke open the lock of his house and took away his maruti car bearing no. DL2CL2366. This is in total contradiction to the complaint and the statement of other witnesses.
11. In the complaint it is stated that the respondent no. 3 SI P. K. Sharma along with his associates came intoxicated to the house of the complainant and took away car of Devar of the complainant/ revisionist i.e. DL2CL2366. In her statement before the trial court revisionist Smt. Longshri has nowhere stated that police came again and took away the martuti car belonging to his brother in law rather she stated that when they came they lifted her son Vicky and also took car which was parked in the house of her devar and when the person from the Cr. Revision No.37/12 12/14 locality, who gathered at the spot tried to stop the police official they threatened to fire. Though CW6 Raj Kumar, CW5 Sanjeev Kumar stated that when they were asked to stop they waived their arms in the air and threatened them.
12. In the complaint filed before Ld. MM only two persons were arrayed as respondent/ accused i.e. J. P .Bhardwaj, S.O. PS Loni, District Ghaziabad, UP and P. K. Sharma, Chowki Incharge, Sub Inspector, P. P. Hajipur Behta, PS Loni, District Ghaziabad, UP. However, in the revision petition filed before this court 12 persons have been arrayed besides the State, though no specific role was assigned to respondent no. 4 to 13 in the complaint.
13. I differ from Ld. MM on the point that in absence of sanction u/s 197 Cr PC accused no. 1 and 2 who are public servants cannot be summoned, as I am of the view that the acts alleged against SI P. K. Sharma does not fall within the ambit of the discharge of official duties and therefore no sanction u/s 197 Cr PC was required.
14. However, since there are intrinsic defect in the complaint and the allegations made do not inspire confidence. Cr. Revision No.37/12 13/14 Accordingly, I uphold the dismissal order passed by Ld. MM.
15. Revision petition stands dismissed. Copy of the order be sent to trial court along with TCR. Revision file be consigned to record room.
(Nisha Saxena) Announced in the open court Additional Sessions Judge03, on 03.12.12. North East District, KKD, Delhi. Cr. Revision No.37/12 14/14