Madhya Pradesh High Court
R.K. Richharia vs Tulsi Prajapati on 23 October, 2018
Bench: S.K.Seth, Subodh Abhyankar
CRR No.563-2018
1
THE HIGH COURT OF MADHYA PRADESH
DIVISION BENCH
Hon'ble Mr. Justice S.K.Seth,
&
Hon'ble Mr. Justice Subodh Abhyankar, JJ.
Criminal Revision No.563/2018
R.K.Ricchariya
Vs.
Tulsi Prajapti & another.
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Shri A.M.Trivedi, learned Senior Counsel with Shri
Jayant Patel, Advocate for the applicant.
Shri Ranjeet Dwivedi, learned counsel for the
respondent No.1.
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O R D E R
(23/10/2018) Per: Subodh Abhyankar,J :
This criminal revision has been filed by the applicant under Section 397 read with Section 401 of Cr.P.C. against the order dated 3.11.2017 passed in Criminal Revision No.166/2013 by the 6 t h Additional Sessions Judge, Rewa whereby the learned Revisionary Court has reversed the order dated 22.4.2013 passed by the Judicial Magistrate First Class, Sirmour wherein the complaint filed by respondent No.1-Tulsi Prajapati has been dismissed.
CRR No.563-2018 2
2. In brief the facts of the case are that a private complaint under Section 200 of Cr.P.C. was filed by respondent No.1-Tulsi Prajapati against the applicant as also the respondent No.2 under Sections 294, 323, 384, 392 of IPC and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 as well as under Sections 7, 8, 9 and 13 of Prevention of Corruption Act, 1988. In the aforesaid complaint it is alleged that on 2.4.2011 an incident took place when complainant Tulsi Prajapati was going at around 10 O'clock to the Civil Court, Sirmour, at that time one Pintu Nat stopped his motorcycle and snatched his mobile and ran away from the spot. A complaint was made to this effect at Police Station Sirmour and the SHO of the Police Station R.K.Riccharia, present applicant herein sent police force and summoned accused Pintu Nat to the Police Station from whose possession the complainant's mobile was recovered and was handed over to the complainant, but without any reason SHO R.K.Riccharia started abusing him and also put him behind the bars in the Police Station. He also made aspersions against his caste, assaulted him and demanded a sum of Rs.5,000/- from him. After the incident, the respondent No.1/complainant also tried to lodge an FIR against the applicant, and as CRR No.563-2018 3 no action was taken against him being the policeman, a private complaint under Section 200 of Cr.P.C. was filed by him in the Court of JMFC, Sirmour.
3. After recording the statements of the complainant and another witness and appreciating the evidence on record, the learned JMFC Sirmour vide its order dated 22.4.2013 has refused to take cognizance of the offence and dismissed the said complaint.
4. The aforesaid order was challenged by the respondent No.1 by filing Criminal Revision No.166/2013, which was decided by learned lower Revisionary Court vide its order dated 3.11.2017, whereby the order of rejection of complaint was reversed and the matter was remanded back to the trial Court to take cognizance under Section 323 of IPC against the present applicant and under Section 294 of IPC against the respondent No.2 herein. However, so far as other allegations regarding the commission of offence punishable under Sections 384, 392 of IPC and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989 as well as under Sections 7, 8, 9 and 13 of Prevention of Corruption Act, 1988 are concerned, it was held that no case is made out so far as the said offences are concerned.
CRR No.563-2018 4
5. Shri A.M.Trivedi, learned senior counsel for the applicant has submitted that the learned Judge of the lower Revisionary Court has erred in remanding the matter back after holding that cognizance under section 323 of IPC be taken by the trial Court, despite holding that no case under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act, 1989, under Sections 7, 8, 9 and 13 of Prevention of Corruption Act, 1988 and other sections of IPC is made out. It is further submitted that the incident took place in the Police Station itself and admittedly the applicant was discharging his duties when the alleged incident took place, and as such without obtaining sanction to prosecute under Section 197 of Cr.P.C., cognizance under those sections ought not to have been taken by the learned Judge of the lower Revisionary Court. In support of his contention, learned counsel for the applicant has relied upon the judgment of Hon'ble Apex Court in the case of Rakesh Kumar Mishra Vs. State of Bihar & others, reported in (2006) 1 SCC
557.
6. On the other hand, Shri Ranjeet Dwivedi, learned counsel for the respondent No.1 has opposed the prayer of the applicant and has submitted that no illegality has been committed by the learned Judge of CRR No.563-2018 5 the lower Revisionary Court in passing the impugned order and as such it is submitted that the revision is liable to be dismissed.
7. Heard the learned counsel for the parties and perused the record.
8. The core issue in the present revision is that whether the sanction to prosecute the applicant was sine qua non to proceed against him under the facts and circumstances of the case.
9. So far as the decision rendered by the Apex court in the case of Rakesh Kumar Mishra (supra) is concerned, on which the reliance is also placed by the learned senior counsel for the applicant, relevant paras of the same read as under:-
"8. It would be appropriate to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servants, who, apart from various hazards in discharge of their duties, in the absence of a provision like the one mentioned, may be exposed to vexatious prosecutions. Sections 197(1) and (2) of the Code read as under:
"197. (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--
(a) 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 CRR No.563-2018 6 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:
* * * (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."
9. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Session under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or unless the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by 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 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 the words "no" and "shall" make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary CRR No.563-2018 7 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 the discharge of his official duty.
10. x x x x
11. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the CRR No.563-2018 8 sanction may be necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in the discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari4 thus: (SCR pp. 933 & 934-35) "The offence alleged to have been committed [by the accused] must have something to do, or must be related in some manner, with the discharge of official duty. ...
* * * There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim), but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
13. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed."
(emphasis supplied)
10. In the aforesaid case, the allegations against the police officer was that he entered into the house of the complainant/accused for the purposes of search, and a complaint was filed against the police officer alleging that without any arrest warrant he entered into the house of the complainant. In such circumstances, the Apex Court has held that in such case sanction would be required as the other surrounding circumstances are also required to be looked into while deciding that whether sanction is necessary or not.
CRR No.563-2018 9
11. In the case at hand however, it is observed that the incident took place inside the police station where the applicant had gone as a complainant whose mobile had been snatched by a person. In view of the same, it cannot, by any stretch of imagination, be said that the act of applicant, thrashing the complainant in the police station would fall within the ambit of his duty. Thus, when the complainant had gone to the police station as a victim of crime only and not as an accused, in such circumstances, there was no occasion for the applicant to indulge in any argument or scuffle with the complainant and it cannot be said that the act was done in discharge of his official duty.
12. Thus, the decision rendered in the case of Rakesh Kumar Mishra (supra) is of no help to the applicant and under the facts and circumstances of the case, it is held that the sanction under Section 197 of Cr.P.C. is not required to prosecute the applicant under Section 323 of I.P.C.
13. Accordingly, we do not find any reason to interfere in the impugned order passed by the Revisionary Court and the revision being devoid of merits is hereby dismissed.
(S.K.Seth) (Subodh Abhyankar)
Judge Judge
23/10/2018 23/10/2018
Ansari
Digitally signed by MANZOOR AHMED
Date: 2018.11.03 13:14:21 +05'30'