Delhi District Court
Insp Harnder Singh vs State on 25 November, 2023
IN THE COURT OF SH. SATISH KUMAR
ADDITIONAL SESSIONS JUDGE - 03, NORTH DISTRICT
ROHINI COURTS, DELHI
CNR No. DLNT01-002146-2023
Crl. Revision No.65/2023
Inspector Harender Singh,
SHO PS Bhalaswa Dairy,
Delhi. .......Revisionist
Versus
1. State NCT of Delhi
2. Mohd. Faijan,
S/o Mohd. Irfan,
R/o Kazi Garden Ke Peeche,
Katauli Tehsil, Katauli District,
Muzaffar Nagar, Uttar Pradesh.
3. Mohd. Irfan,
R/o Kazi Garden Ke Peeche,
Katauli Tehsil, Katauli District,
Muzaffar Nagar, Uttar Pradesh. ........Respondent
Date of filing of revision petition : 28.02.2023 Date on which arguments were heard : 08.11.2023 Date of pronouncement of order on : 25.11.2023 revision petition ORDER ON REVISION PETITION UNDER SECTION 397 CR.P.C. AGAINST THE IMPUGNED ORDER DATED 17.02.2023 PASSED BY COURT OF LD. MM-01, NORTH DISTRICT, ROHINI COURTS, DELHI IN CONNECTION TO THE APPLICATION U/S 97 CR.P.C. TITLED AS 'MOHD.
Crl. Revision No.65/2023Inspector Harender Singh Vs. State & Ors. Page No. 1 of 11 IRFAN VS. STATE OF NCT OF DELHI' WHEREBY THE LD. MM WAS PLEASED TO PASS THE ORDER FOR DIRECTING THE DCP TO REGISTER AN FIR AGAINST THE SHO AND ERRING OFFICIALS OF PS BHALASWA DAIRY
1. Vide this order, I shall decide the revision petition being filed by the applicant/revisionist against the impugned order dated 17.02.2023 passed by the court of Ld. MM-01, North District, Rohini Courts, Delhi in connection to the application u/s 97 Cr.P.C. titled as 'Mohd. Irfan vs. State of NCT of Delhi' whereby the ld. MM was pleased to pass the order for directing the DCP to register an FIR against the SHO and erring officials of PS Bhalaswa Dairy and aggrieved against the said impugned order dated 17.02.2023, the instant revision petition is filed on the following grounds :-
a) That, the impugned order dated 17.02.2023 passed by the ld. MM is absolutely bad in law and illegal also inasmuch as there was no complaint u/s 156(3) Cr.P.C. or u/s 200 Cr.P.C. and only a report was called from the SHO qua application filed u/s 97 Cr.P.C. and the said application was disposed off on dated 23.01.2023 and the impugned order has been passed in the absence of any application.
b) That, the suspect Faizan had joined the investigation and the due legal procedure as prescribed u/s 160 Cr.P.C. was followed. The suspect was never confined or physically assaulted by the police officials.
c) That, the suspect through his father an application has been Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 2 of 11 filed and to try to interfere in the investigation by misleading the process of law.
d) That, the impugned order has been passed by ld. MM without following the due process of law and even the MLC of the suspect disclosed that the nature of injuries were simple and the old injuries.
e) That, the impugned order is bad in the eyes of law inasmuch as in the application u/s 97 Cr.P.C. at para no.4, it has been stated that father of suspect Faizan visited PS Bhalaswa Dairy on various dates for inquiry about his son whereas he was suspected in case FIR No.1045/2022.
By way of the present revision petition, it is prayed that the impugned order dated 17.02.2023 passed by the ld. MM may kindly be set aside.
2. That, upon notice, the respondent appeared but no reply of revision petition has been filed and Ld. counsel for the respondent has argued straightaway.
3. It has been argued by Ld. counsel for the respondent that SHO PS Bhalaswa Dairy/revisionist and the other police officials had given merciless beatings upon the person of the Mohd. Faizan/ respondent no.2 herein. There is no irregularity or illegality in the impugned order dated 17.02.2023 passed by the court of ld.
Crl. Revision No.65/2023Inspector Harender Singh Vs. State & Ors. Page No. 3 of 11 MM01, North District, Rohini Courts, Delhi and make a submission that the revision petition may kindly be dismissed.
4. Ld. Counsel for the revisionist has submitted that the revisionist is an Inspector in Delhi Police and was posted as SHO in PS Bhalaswa Dairy and whatever has been done by the revisionist, the same has been done to carry out the investigation in FIR no.1045/22 u/s 302/201/34 IPC which was registered in PS Bhalaswa Dairy on the statement made by Mohd. Saleem S/o Mohd. Barkat Ali. The revisionist has only discharged his official duties in accordance with the provisions of Cr.P.C. and make a submission that the impugned order dated 17.02.2023 may kindly be set aside and the revision petition may kindly be allowed.
5. Having heard the submissions made by Ld. counsel for the parties and after gone through the impugned order dated 17.02.2023 as well as the trial court record, this court is of the considered view that the impugned order dated 17.02.2023 is the outcome of the application being filed by the respondent no.3 Mohd. Irfan, father of respondent no.2 Mohd. Faizan u/s 97 Cr.P.C. whereby it has been averred that the respondent no.2, the son of the respondent no.3 has been illegally detained in the police custody since 30.12.2022 till the date of filing of the application and the respondent no.2 did not come back to his Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 4 of 11 house. A report was called on the said application by the ld. MM-01 from the revisionist and report has been filed wherein it has been mentioned that the FIR has been registered in the name of respondent no.2 Mohd. Faizan and he has been made an accused but he was only called to the Police Station for the investigation purpose and was released on the same day of the investigation and thereafter, he was also called for the purpose of investigation and to search the dead body of the deceased. The ld. MM court was of the view that no DD Entry has been placed on record regarding the summoning of the accused for investigation and the court was of the view that false submissions has been made by the revisionist/IO and taking a serious note on the false submissions and misleading the court, the impugned order has been passed by the ld. Trial court wherein directions has been issued to the DCP concerned to get register an FIR against the revisionist.
6. It is worth mentioning that an FIR no.1045/2022 u/s 302/201/34 IPC PS Bhalaswa Dairy was registered and one Ruksar, wife of the deceased was arrested and was sent to the judicial custody. Before sending the judicial custody, the investigating agency has moved an application of PC remand to recover the dead body of the deceased but the ld. MM-01 did not grant any PC remand. It is pertinent to mention that Smt. Ruksar, wife of the deceased was arrested after recorded the statement of two Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 5 of 11 children of the deceased u/s 164 Cr.P.C. and even after made the sincere efforts by the investigating agency, the dead body of the husband of the accused Smt. Ruksar could not be recovered. Perusal of the impugned order dated 17.02.2023 passed by the ld. MM itself reveal that upon moving an application u/s 97 Cr.P.C., the respondent no.2 Mohd. Faizan was produced before the court and he submitted that he was at his rented room and so far as non-functioning of the CCTV cameras of PS Bhalaswa Dairy is concerned, the same is not within the domain of the revisionist and he can only made a complaint for smooth functioning of the CCTV cameras installed at the Police Station.
7. That, the impugned order dated 17.02.2023 passed by the ld.
MM-01, North, Rohini Courts is not sustainable in the eyes of law inasmuch as one life has been lost and the wife of the deceased was arrested and till date dead body of deceased is not recovered. The respondent no.2 Mohd. Faizan was called by the police after serving upon notice u/s 160 Cr.P.C. and he was interrogated by the investigating agency. The copy of the notice u/s 160 Cr.P.C. of dated 19.01.2023 is duly signed by the suspected Faizan, respondent no.2 herein. There may be irregularity alleged to have been made by the investigating agency during the course of the investigation particularly to make inquiry from the respondent no.2 Mohd. Faizan but the same cannot be said to be illegal act inasmuch as one life has Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 6 of 11 been lost and the dead body of the deceased could not be recovered till date and Mohd. Faizan was a suspected in the aforesaid FIR inasmuch as he is stated to be the friend of the accused Smt. Ruksar, wife of deceased.
8. The impugned order dated 17.02.2023 itself is not sustainable on the ground that whatever has been done by the police officials of PS Bhalaswa Dairy, the same has been done during the course of the investigation in a case FIR No.1045/2022 u/s 302/201/34 IPC PS Bhalaswa Dairy.
9. It appears that the ld. Trial court has passed the impugned order in haste and has not followed the law laid down by the Hon'ble Apex Court of India while dealing with the application u/s 97 of Cr.P.C. and at the stage of the taking the cognizance. The law is well settled in respect of dealing with the application of Section 97 Cr.P.C. and taking the cognizance of the offence by the court of ld. Metropolitan Magistrate :-
13. The expression "cognizance" which appears in Section 197 CrPC came up for consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] , and this Court expressed the following view: (SCC pp. 375, para 6) "6. ... '10. ... And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 7 of 11 Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of words 'no' and 'shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The 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 been committed during discharge of his official duty.' [Ed.: As observed in State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, 358, para 10 :
2004 SCC (Cri) 539.] "Crl. Revision No.65/2023
Inspector Harender Singh Vs. State & Ors. Page No. 8 of 11
85. Further, the Hon'ble Supreme Court in Army Headquarters v. CBI (2012) 6 SCC 228 opined as follows:
"82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him.
83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio...."
86. In the case of L. Narayana Swamy v. State of Karnataka, (2016) 9 SCC 598, it was held as under:
"12. As is clear from the plain language of the said section, the court is precluded from taking "cognizance" of an offence under certain sections mentioned in this provision if the prosecution is against the public servant, unless previous sanction of the Government (Central or State, as the case may be) has been obtained. What is relevant for our purposes is that this section bars taking cognizance of an offence. The question is whether it will cover within its sweep, order directing investigation under Section 156(3) CrPC? The High Court has taken the view, in the impugned judgment [Shashidhar v. State of Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 9 of 11 Karnataka, 2014 SCC OnLine Kar 12287], that bar is from taking cognizance which would not apply at the stage of investigation by the investigating officer. It is observed that sanction is required only after investigation and that too when, after investigation, it is found that there is substantial truth in the investigation report as to what amounts to cognizance of offence."
87. In the same judgment, it was further held as under:
"14. In State of W.B. v. Mohd. Khalid [State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as follows:
'13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.' [Ed.: As considered in State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179]
10. Therefore, this court is of the considered view that the impugned order dated 17.02.2023 passed by the ld. MM-01, North, Rohini Courts, Delhi is not sustainable in the eyes of law Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 10 of 11 and therefore, considering all the facts and circumstances, the revision petition stands allowed and the impugned order dated 17.02.2023 passed by ld. MM-01, North, Rohini Courts, Delhi in case 'Mohd. Irfan Vs. State of NCT of Delhi, PS Bhalaswa Dairy is hereby set aside.
11. The TCR be sent back to the ld. Trial court with copy of order on revision petition.
12. File be consigned to record room.
Announced in the open court (Satish Kumar) on 25.11.2023 Addl. Sessions Judge-03, (North) Rohini Courts, Delhi Crl. Revision No.65/2023 Inspector Harender Singh Vs. State & Ors. Page No. 11 of 11