Delhi District Court
Om Prakash S/O Sh. Ram Singh vs State on 7 May, 2019
-1-
IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSIONS JUDGE-1, SHAHDARA DISTRICT
KARKARDOOMA COURTS, DELHI
CNR No.: DLSH01-006935-2018
Criminal Revision No. 268/2018
In the matter of :
1. Om Prakash s/o Sh. Ram Singh
R/o: Village & Post Patan,
Tehsil - Nim Ka Thana
Dist. Sikar, Rajasthan
...........Revisionist
VERSUS
1. State
Through Public Prosecutor
2. Jaiveer s/o Sh. Ram Suresh
R/o H. No. F-23, Gali No.2
Mandawali Oonchepar
East Vinod Nagar, Delhi.
.............. Respondent
Date of Institution : 16.10.2018 Date of assignment to this court : 05.02.2019 Date of reserving Order : 25.04.2019 Date of pronouncement : 07.05.2019 ORDER/07.05.2019
1. Vide this order, I shall decide present revision petition, which is preferred against the impugned order dated 04.10.2018 whereby Ms. Deepti Devesh, Ld. MM Shahdara District, Karkardooma CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 1 of 10 -2- Courts, Delhi allowed application u/s 156(3) Cr.PC and directed SHO PS Welcome to register an FIR against revisionist.
2. Notice of the revision was given to the respondents.
3. I have heard Ms. Ananya Kar Sangh, Counsel for revisionist, Sh. Ravinder Bhat, Addl. PP for State/R1 and Sh. F. S. Chauhan, Counsel for respondent no.2. I have also gone through the record.
4. Trial Court Record was summoned, received and perused.
5. In brief, relevant facts are that an application u/s 156(3) Cr.PC was filed by respondent no.1 Jaiveer stating therein that complaint dated 20.1.2016 was given to DCP (North-East) against SHO, PS Welcome, ASI Om Prakash and against one Sub-Inspector whom he can identify. The contents of the said complaint are not made contents of the application moved u/s 156 (3) Cr.PC but are part of the same as Annexure -1 wherein it is stated that FIR No.159/13 was registered u/s 323/341/506/34 IPC at PS Welcome Colony against the accused Ajay and Vikas for committing murderous assault on him with a sharp edged weapon on 24.4.2013 against whom there was already an FIR No.198/2011, u/s 302 IPC was registered for committing murder of his brother on 14.05.2011. But police did not proceed with the investigation until when on 22.9.2015 his CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 2 of 10 -3- counsel moved an application in the court concerned for status report. The IO in FIR No.159/2013 in connivance with accused persons was not recording statement of eye witness and on 11.12.2015, in the court of Sh. Muneesh Garg, Ld. MM, ASI Om Prakash agreed to record the statement of Sunder and gave a time i.e. 5:00 p.m. on 19.01.2016. Accordingly, he alongwith witness reached at PS Welcome Colony and IO took them to his room and sent him away to buy a pen from the market and thus examined the witness Sunder in his absence who is illiterate. When he came back with the pen, ASI Om Prakash again started asking the question to the witness and recording the statement. In view of his earlier threats to falsely implicate him, he switched on the voice recorder of his mobile phone. In the meantime SHO and SI also came. It appears, someone pointed on to the ASI Om Prakash that he was recording the statement of the witness in his mobile. All of sudden, ASI Om Prakash snatched his mobile and tore off the statement of the witness already written by him and started beating him and abusing the witness also. SHO and the said SI also started beating him. They gave so many slaps on his face and also detained him and the witness in that room and prepared many documents telling him that those were being prepared only to falsely implicate him in a false case and only released CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 3 of 10 -4- them at about 10:30 p.m. with condition that he and the witness would not appear on 20.1.2016 in the court of Sh. Muneesh Garg, Ld. MM. In the application u/s 156 (3) Cr.PC is stated that offence punishable u/s 166, 166A, 167, 195A, 217, 220, 323, 327, 342 and 506 read with S. 34 IPC are made out against Inspector Prashant Kumar, ASI Om Prakash and sub-inspector to whom he can identify. On 20.1.2016, the information was given to DCP(NE), Delhi Police, The Hon'ble Lieutenant Governor of Delhi, The commissioner of Police and DCP (Vigilance), Delhi Police alongwith photographs showing injury. He also filed affidavit in the court but the police had neither register an FIR nor any action has been taken. It is stated that as per judgment of Hon'ble Supreme Court in case titled as Lalita Kumari v. Govt. of U.P. & Ors 2013(13) SCALE 559, registration of an FIR is mandatory.
6. Ld. Trial Court called for status report. Status report dated 29.08.2018 was filed by ACP/Seelampur, North-East stating therein that eye-witness was produced by complainant after passing of 2 years and 9 months for recording of his statement. During examination he failed to reply some cross-questions which were put up before him regarding the incident of the case to testify him. During interrogation it was crystal clear that Sunder was a planted witness and he was not present at the CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 4 of 10 -5- place of occurrence, so IO did not record his statement and on this, the complainant started levelling false and vague allegations against IO and both of them left the police station voluntarily. They were neither detained nor were phyiscally assaulted by anyone. The complainant is levelling false, baseless and after thought allegations against the police officials with some ulterior motives. PCR call was not made.
7. Ld. Trial Court after considering the submissions and finding cognizable offence, directed SHO concerned to register an FIR under appropriate sections of law in the present case. Hence the present revision petition.
8. The present revision petition is preferred by ASI Om Prakash.
9. The impugned order has been challanged on the ground that order was passed without considering the fact that revisionist, police officer was present in official capacity as an investigating officer at the police station for the purpose of investigation. Further, Ld. MM has also not taken into consideration the material on record. It was also contended that the investigation by magistrate u/s 200 Cr.PC is different from 156 (3) Cr.PC and therefore the magistrate cannot direct registration of the FIR and relied upon judgment in case titled as Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors, 1976 SCC (3) 252. Further Ld. Counsel for revisionist also CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 5 of 10 -6- submitted that requisite sanction under S. 140 of Delhi Police Act, 1978 was also not obtained and relied upon judgment of Hon'ble High Court of Delhi in case titled as Rakesh Kumar v. State (NCT of Delhi) Crl. M. C. No. 2881/2007 and Anil Kumar & Ors. v. M. K. Aiyappa & Anr, Criminal Appeal Nos.1590- 1591 of 2013 (@ Special Leave Petition (Criminal) Nos.6652- 6653 of 2013) and the judgment of Hon'ble Supreme Court in case titled as D. T. Virupakshappa v. C. Subhash in Criminal Appeal No.722 of 2015.
10. On the other hand, Ld. Counsel for respondent no.2 submitted that no sanction, either under S. 197 Cr.PC or 140 of Delhi Police Act, 1978, is required and in support of his arguments cited judgments of Hon'ble High Court of Delhi in case titled as Prem Chand Goel v. Krishan Kumar & Ors. 2004 (74) DRJ 487; and judgments of Hon'ble Supreme Court of India in case titled as Paul George v. State of NCT of Delhi, 2008 (3) SCALE 614 and Satyavir Singh Rathi v. State through CBI, AIR 2011 SC 1748.
11. Firstly, I shall deal with law with respect to Sanction u/s 197 Cr.PC and 140 D. P. Act. In the cited judgment of Paul George (supra), the appellant was working as Head Constable with Delhi Police and was directed to go to Police Head Quarter to convey an urgent matter. He was driving a police truck. As CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 6 of 10 -7- vehicle reached under railway bridge on the Ring Road going towards Jamuna Bazar it went over the road divider and hit a scooter driven by deceased and pillon rider. Unnerved, the appellant attempted to steer the truck back on the other side of the road but in doing so, struck an electric pole and came to a halt. The appellant was tried under S. 279 and 304 A IPC. The appellant was convicted and sentenced was confirmed by the first appellate court, by the High Court in revision. He has filed SLP before Hon'ble Supreme Court where plea was taken that the prosecution was bad abinitio as being beyond limitation prescribed under S. 140 of Delhi Police Act, 1978 and sanction had not been dealt with as the appellant had been acting under the colour of duty and hence matter was remitted to High Court. Before the High Court Ld. Counsel conceded that S. 140 of D.P.Act would not come into play but contended that sanction had nevertheless to be taken under S. 197 of Cr.PC as the appellant had been acting or purporting to act in discharge of his police duty in driving an official vehicle when the accident had taken place. It was urged by Counsel on behalf of State that Sanction under S. 197 Cr.PC is applicable where public servant concerned was not removable from service save by or with the sanction of the Government and the appellant a mere Head Constable did not fall in this exalted category. Before Hon'ble CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 7 of 10 -8- Supreme Court again the submission regarding Sanction under S. 140 of D.P. Act was urged. Hon'ble Supreme Court after considering, S. 140 of D. P. Act held that it is applicable only in cases where act is under colour of duty and held that appellant was undoubtedly entrusted with the duty but by jumping road divider and coming face on the incoming traffic was the factor which had caused the accident and was clearly not a matter within the 'colour of duty' and act will not be covered under S. 140 of D. P. Act and hence sanction was not required.
12. The revisionist in the present case admittedly does not require sanction of government for removal from office and therefore sanction under S. 197 Cr.PC has no application in this case. As regards S. 140 of D. P. Act, the question arises whether the revisionist was acting in colour of duty ? As per complaint, while complainant/ respondent was making recording in his mobile phone, revisionist alongwith other police officials snatched his mobile, started beating him and abusing witness. Complainant was given so many slaps on his face, he got injury which is visible in the photographs. Therefore the complainant was given beatings inside the police station which resulted in injury which by no stretch of imagination can be called acting in 'colour of duty'. Therefore sanction under S. 140 D. P. Act and 197 Cr.PC Act is not required.
CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 8 of 10 -9-
13. Another aspect which was argued was in respect of case titled as Anil Kumar & Ors (supra) wherein Hon'ble Supreme Court held that by exercising jurisdiction under S. 156 (3) Cr.PC has to consider whether sanction is required ? Sanction under Prevention of Corruption Act, 1988 is required was S. 19 against public servant, has no application to the cases which fall under other Statute which shall be purely governed by the Code of Criminal Procedure. PC Act has special statutes provides for additional protection to the public servant on account of their nature of duty. As already observed the law laid down by Hon'ble Supreme Court in case of Paul George (supra), sanction is not required to be discussed
14. As regards distinction between investigation under S. 156(3) Cr.PC and 200 Cr.PC, the judgment in case titled Devarapalli Lakshminarayana Reddy & Ors. (supra) is of the year 1976, much water had already flown under the River Yamuna since then and Constitutional Bench judgment in case of Lalita Kumar had been passed thereafter which mandates that if cognizable offences are alleged, the FIR has to be registered by the police. Therefore said citation has no application to the facts of the present case.
15. Therefore in the totality of the facts and circumstances of the case and as per discussion above, I do not find any infirmity, CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 9 of 10 -10- impropriety and illegality in the order dated 04.10.2018 of Ld. MM Shahdara District, Karkardooma Courts, Delhi allowing application u/s 156(3) Cr.PC and directing registration of the FIR against revisionist. Revision petition is without merit and hence dismissed.
16. Trial Court Record be sent back alongwith copy of order.
17. Revision file be consigned to record room.
Digitally signed by GURDEEPAnnounced in the open court GURDEEP SINGH
Location: Addl. Seessions Judge-1/
today i.e. 07.05.2019 Special Judge
SINGH
(GURDEEP SINGH)
(POCSO),Shahdara/KKD
Date: 2019.05.08 10:23:06 +0530
ADDL. SESSIONS JUDGE-1
SHAHDARA/ KKD/DELHI/07.05.2019
CR No.: 268/2018 Om Prakash v. State & Anr. Page no. 10 of 10