Delhi District Court
Asi Rishikesh vs State Of Nct Of Delhi on 15 October, 2016
1
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA,
SPECIAL JUDGE CBI02 (P.C. ACT), DISTT. NORTH WEST, ROHINI COURTS,
DELHI.
Crl. (R) No. 13/16
New Case No. 49790/2016
ASI Rishikesh
PIS No. 28890439
Posted as Assistant SubInspector
PS Sultanpuri,
Delhi.
... Petitioner
Versus
1. State of NCT of Delhi
Through Addl. Public Prosecutor
2. Om Parkash
S/o Shri Gokul,
R/o C209, Jawalapuri,
Delhi.
... Respondents
Date of Institution : 13.05.2016
Date or arguments : 06.10.2016
Date of orders : 15.10.2016
ORDER
This is a revision against the order dt. 9.05.16 passed by the trial court in CC No. 27/1/16 of PS Sultanpuri, whereby SHO PS Sultanpuri has been CR No. 13/16 P1/5 2 directed to register the FIR.
2. I have heard the Ld. counsel for the petitioner and Ld. Counsel for the respondents. I have perused the file and judgments relied upon by the parties.
Perusal of the file shows that the complainant (respondent No. 2 herein) filed an application U/s 156 (3) Cr.P.C. against the accused persons. In the application, it has been alleged that on 31.12.15 at about 7.10 a.m. at godown near Laxmi Park, Nihal Vihar, the accused persons kidnapped the complainant in their car on gun point and taken the complainant to Sultanpuri police station. The complainant was illegally detained in the police station. The accused SI Rishikesh (petitioner herein) asked the complainant to give him Rs. 50,000/ and has also threatened to implicate the complainant in false rape and theft cases. The accused has permitted the complainant to make the phone calls to arrange Rs. 50,000/. On 31.12.15 at about 5.17 p.m. from Sultanpuri police station lockup, the complainant made a phone call to his wife and asked his wife to bring Rs. 50,000/. The wife of the complainant after receiving the phone call, made a phone call from her phone at 100 number and inform the PCR about the kidnapping and of the extortion amount. On 31.12.15 and 1.1.16, the accused Ikrar came to the police station Sultanpuri and gave beatings to the complainant. The complainant was produced in Rohini Courts on 1.1.16 after kidnapping and illegal detention. The trial court called the action taken report from the police and after considering the allegations against the complainant and the action taken report, the trial court has passed the impugned order.
CR No. 13/16 P2/5 3
3. Ld. Counsel for the petitioner has argued that the trial court has passed the impugned order on the basis of surmises and conjectures which is against the facts and law. In fact, the respondent No. 2 was arrested on 31.12.15 at about 7.40 p.m. by H.C. Maheshwar in FIR No. 1157/15 U/s 379/411/34 IPC PS Sultanpuri. The respondent No. 2 has remained in jail for about 11 days and thereafter he was released on bail. The investigation of this FIR has been assigned to the petitioner on 29.2.16. The respondent No. 2 has filed the false complaint against the petitioner and other police officials of PS Sultanpuri with the object to pressurize them. The trial court has no power to order the FIR against the petitioner who is a public servant without previous sanction U/s 197 Cr.P.C. of the competent authority. On these grounds, it is prayed that the impugned order be set aside.
On the other hand, Ld. Counsel for the respondent No. 2 has argued that the trial court has passed the impugned order after considering the material on record. The alleged acts of the petitioner and the other accused persons cannot be said to be done in the discharge of their duties, so sanction U/s 197 Cr.P.C. is not required. There is no illegality or infirmity in the impugned order and so the revision petition be dismissed.
4. It has been observed by the Hon'ble Supreme Court in 2013 (12) SCALE 283 in Anil Kumar and Ors. Vs. M.K. Aiyappa and Anr. :
"Learned senior Counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) CR No. 13/16 P3/5 4 would be rendered otiose. We find it difficult to accept that contention Subsection (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers Under Section 156(3) Code of Criminal Procedure. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (Supra)."
Admittedly, the petitioner is a public servant and he is posted as Assistant Sub Inspector at PS Sultanpuri. Perusal of the impugned order shows that the trial court has not decided the issue of sanction U/s 197 of Cr.PC. The issue whether the protection of Section 197 of Cr.P.C. is available to the petitioner or not has to be decided by the trial court while invoking powers U/s 156 (3) of Cr.P.C. Accordingly, the impugned order is set aside and the matter is remanded back to the trial court to decide afresh CR No. 13/16 P4/5 5 the application U/s 156 (3) of Cr.P.C. after taking into consideration the section 197 of Cr.P.C. The revision petition is accordingly disposed of.
Trial court record be sent back to the concerned trial court along with the attested copy of this order. Revision file be consigned to Record Room.
Announced in the open court (Rajneesh Kumar Gupta) today i.e. on 15.10.16 Special Judge CBI02 (PC Act) (North West), Rohini Courts, Delhi.
CR No. 13/16 P5/5