Delhi District Court
Balak Ram vs State And Others on 6 March, 2014
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE (2) NORTH DISTRICT
ROHINI COUTRS : DELHI
CR No. : 29/09
Balak Ram
..........Petitioner/Revisionist
Versus
State and others.
............Respondents
ORDER
1. By this order, I shall dispose of a revision petition filed by the petitioner/revisionist against the impugned order dated 30-07-2009, passed by the Ld. MM, Rohini Courts, Delhi by virtue of which the Ld. MM rejected the application of the petitioner/revisionist U/s 197 of Cr.P.C.
2. In brief the facts of the case are that the petitioner was working as a Head Constable in Delhi Police and was posted at P.S. Mangol Puri, Delhi. On 09-05-2001, after the receipt of DD No. 82, he alongwith Ct. Azad reached gali in front of house No. M-186, Mangol Puri, Delhi where respondent No. 2 Dharambir Singh met him. The petitioner/revisionist prepared his injury sheet and respondent No. 2 was taken to S.G.M. Hospital where doctor prepared his MLC No. 26302 and they opined the injury as simple caused by blunt object. The petitioner/revisionist recorded the statement of Dharambir Singh in which he stated that on 09-05-2001, at about 8:30 p.m, he was going for urinating. In the gali Krishan and his relatives abused him and stopped him and started beating him with fist and legs blows and Krishan caused injury to the respondent No. 2 with some pointed instrument. On the basis of the statement Criminal Revision No. : 29/09 Page 1 of 14 and medical opinion, the revisionist/petitioner got the case registered vide FIR No. 382 U/s 341/323/34 IPC and after the completion of the investigation filed the challan against Jagdish, Krishan and Braham Prakash on 12-07-2001.
3. On 15-05-2001, respondent No. 2 filed a complaint against the accused persons mentioned in the charge sheet and including one Chhawli W/o Sh. Jagdish and the present petitioner/revisionist.
4. On 30-07-2009, an application U/s 197 of the Cr.P.C / 140 DP Act was moved before the Ld. MM by the revisionist/petitioner who dismissed the application vide the impugned order under challenged.
5. The petitioner has challenged the impugned order interalia on the following grounds : that the petitioner was performing his official duties assigned to him vide DD No. 82 B; that the Ld. MM did not appreciate section 140 of the D.P. Act; that the Ld. MM did not appreciate the provisions as mentioned in Section 197 of Cr.P.C; that the observations of the Ld. MM is against the mandatory provisions of Section 197 of Cr.P.C; that by virtue of notification No. F-10/77-76- HQ-II dated 7th April, 1980 issued by Lt. Governor of Delhi, provisions of Section 197 (2) Cr.P.C. have been made applicable to the serving police officials of all ranks of Delhi Police Force; that the petitioner/revisionist was on duty and during the course of his duty he got the case registered, arrested the accused persons and his complicity with the accused persons cannot be established even remotely but the Ld MM failed to appreciate the function of the petitioner/revisionist and took the cognizance without previous sanction of the competent authority. It is prayed that the impugned order dated 30-07-2009, be set aside.
6. The respondent No. 2 has filed reply to the revision petition.
The respondent No. 2 has taken preliminary objections that in view of Section 140 of the DP Act no proper sanction is required from the administrator of Lt. Governor as the complaint case has been filed by Criminal Revision No. : 29/09 Page 2 of 14 the complainant within stipulated period from the date of incident of the complaint; that sanction U/s 197 of Cr.P.C is not required to prosecute the petitioner as the petitioner can be removed by the Deputy Commissioner of the Police or ACP or Inspector in pursuance to the Section 21 of the DP Act.
7. The respondent has also filed para-wise reply to the brief facts as mentioned in the petition and in reply to para 1, it is submitted that the petitioner failed to do his duty and helped the accused persons in committing the heinous crime and had not recorded the actual statements of the answering respondent and forged and fabricated the signatures of the respondent.
8. In reply to para 2, it is submitted that the order passed by the Ld trial Court on the application U/s 197 Cr.P.C. / 140 D.P. Act moved by the petitioner is lawful, correct and in-accordance with law and there is no infirmity in the order dated 30-07-2009 passed by the Ld. Trial Court.
9. The respondent No. 2 has also filed para-wise reply to the grounds of revision taken by the petitioner in the present revision petition. In para-wise reply the grounds of revision taken by the petitioner are denied and the crux of the para wise reply to the petition is that the complaint was filed within the prescribed period as mentioned U/s 140 DP Act and no sanction U/s 197 Cr.P.C was required to prosecute the petitioner.
10. I have perused the impugned order dated 30-07-2009, by virtue of which the application moved by the petitioner U/s 197 Cr.P.C and 140 of the DP Act was dismissed by the Ld. MM observing that since the compliant had been filed by the complainant within the 3 months of the incident so Section 140 of DP Act applies and there is no bar in the prosecution of the accused without prior sanction.
11. After hearing the counsel for the parties, perusing the trial Court record, the impugned order, the petition and the reply to the Criminal Revision No. : 29/09 Page 3 of 14 petition, the following questions arises: "Whether sanction U/s 197 Cr.P.C was required to prosecute the petitioner". The Ld. Counsel for the respondent No. 2 has relied upon Nagraj Vs. State of Mysore, A.I.R. 1964, S.C. 269 and Bihari Lal Vs. State 2002 (2) JCC 937.
12. During the course of the arguments, it was submitted by the Ld counsel for the petitioner that by virtue of notification No. F10/77/76/HQ2 dated 7 th April 1980, issued by the Lt. Governor of Delhi, provisions of Section 197 (2) Cr.P.C. have been made applicable to the serving police officials of all ranks of Delhi Police Force. So relying upon this notification the Ld counsel for the petitioner has relied upon Ritesh Kumar Bihari Vs. Inspector Balkishan and others 1999 Criminal Law Journal 207.
13. Section 140 of DP Act reads as follows : -
"140. Bar to suits and prosecutions.- (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Criminal Revision No. : 29/09 Page 4 of 14 Administrator, within one year from the date of the offence.
(2) In case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender or amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof."
14. Section 197 of Cr.P.C reads as follows : -
"(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 allege 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-Criminal Revision No. : 29/09 Page 5 of 14
(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 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."
15. As far as the proposition that the special law prevails over the general law there is no dispute. The period of limitation for filing the complaint against the police officials as provided in Section 140 of DP Act is 30 days from the date of the incident complained off. The Ld. MM simply dismissed the application filed by the petitioner observing that since the complaint has been filed within the period of limitation, the same is maintainable and he did not give any observation as to whether the petitioner enjoyed the protection granted to a public servant U/s 197 Cr.P.C.
16. Now coming to the brief facts of this case. The allegations against the petitioner in the complaint filed by the respondent No. 2 on 18-05-2001, are that the accused persons namely Chhawli, Jagdish, Braham Prakash, Kishan and Lala, they all in-connivance against the complainant and in-connivance with the petitioner on 09-05-2001, at about 8:30 p.m when the complainant came out from his house all the accused persons except the petitioner attacked the complainant with hockey sticks and knife. It is alleged against the petitioner that the petitioner without uniform with one Ct. Sh. Azad Singh who was in uniform was roaming there but did not come to the rescue of the Criminal Revision No. : 29/09 Page 6 of 14 complainant and his family and instead of taking any action against the accused persons started advising the complainant about the high connection of the 5 persons mentioned hereinabove.
17. It is also alleged against the petitioner that in the presence of accused persons, the complainant and other witnesses, he disclosed that SHO Sudhir Kumar was under the pressure and influence of politician, higher officers, underworld people who deals in all sorts of activities so no action would be taken against the accused persons.
It is also alleged in the complaint against the petitioner that the petitioner was in-connivance with the accused persons but in compelling circumstances, the petitioner took the complainant to S.G.M. Hospital. It is also alleged that the MLC was prepared in the hospital but the head constable at the instance of the underworld and the accused persons also approached the concerned doctor and may be threatened the doctor so the doctor in fear of that did not treat the complainant properly and also did not mention the head injury and other injury in the MLC and discharged the respondent No. 2 (complainant) in compelling circumstances. So the complainant (respondent No. 2) was admitted to Shiva Medical Centre. It is alleged that despite the objection of the respondent No. 2 (complainant) the SHO concerned marked the investigation to H.C. Balak Ram i.e the petitioner. It is also alleged that the petitioner did not register the FIR and had not taken any action against the above named 5 accused persons.
18. It was argued by the counsel for the petitioner that the petitioner recorded the statement of respondent no. 2 and on the basis of the statements and medical opinion of the respondent no. 2, he got the case registered vide FIR bearing No. 382 U/s 341/232/34 IPC and after the completion of the investigation sent the challan against Jagdish, Krishah, Braham Prakash on 12-07-2001. It was also argued that the petitioner was performing his official duties as assigned to him Criminal Revision No. : 29/09 Page 7 of 14 vide DD No. 82-B.
19. In reply the respondent No. 2 has stated that the petitioner had not only helped the accused persons but has also not recorded the actual statement of answering respondent but he has forged and fabricated the signatures of respondent No. 2 and reproduced the statement of respondent no. 2 on his whims in order to suit the accused persons and which statement was lateron reduced to FIR.
20. Now as far as these allegations are concerned, not even an iota of this fact has been mentioned in the complainant filed by the complainant. At the time of filing of the complaint, sections 468/471 IPC have not been mentioned by the complainant in his original complaint and no revision has been filed by the complainant against the impugned order in which the petitioner had been summoned by the Ld. MM, raising the issue that the petitioner should also have been summoned by the Ld. MM for forgery and fabrication of his statements. The order of the magistrate has become final as far as respondent no. 2 is concerned as it remains unchallenged.
21. It is not in dispute that the petitioner was working as H.C in Delhi Police and on the receipt of DD No. 82-B, he investigated the matter; recorded the statement of respondent No. 2; took him to the hospital; got his medical done and after registration of the FIR filed the charge sheet under relevant sections of law.
22. So in the facts and circumstances of this case, it cannot be said that the petitioner was not acting in the discharge of his official duties. As far as the contention of the counsel for the respondent No. 2 that the petitioner being the Head Constable can be removed from the services by the ACP, DCP and Inspector has no force in it. Reliance can be placed upon Ritesh Kumar Bihari Vs. Inspector Balkishan and others 1999 Criminal Law Journal 207 in which it was held as follows :
The Central Government or the Criminal Revision No. : 29/09 Page 8 of 14 State Government as the case may be, may determine the person by whom the manner in which and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted and may specify the Court before which the trail is to be held. "Since the respondent is a member of the Delhi Police Force, he does not fall within the category of officers mentioned in sub-sec (1) of S. 197 of the Code of Criminal Procedure. Therefore, no sanction of the Government would be necessary in order to launch a prosecution against him under S. 197 (1), but the case of the respondent would be covered by sub sec. (2) of S. 197 of the Code of Criminal Procedure. By virtue of notification No. F.10/77/76-Hq.II dated April 7, 1980 issued by the Lt.
Governor of Delhi, provisions of S. 197 (2) have been made applicable to the serving police officials of all ranks of Delhi Police Force. This notification was made in exercise of the powers conferred upon the Administrator under sub-sec. (3) of S. 197 of the Code read with Government of India notification No. S.O. 183 (E) dated March 20, 1974. The Supreme Court in Balbir Singh Vs. D.N. Kadian AIR 1986 SC 345;
(1986 Cri L.J. 314) while dealing with the above said notification came to the Criminal Revision No. : 29/09 Page 9 of 14 conclusion that in case proceedings against the member of the Delhi Police are to be initiated in a criminal Court, previous sanction of the Lt. Governor who is the Administrator appointed by the President under Art. 239 (1) of the Constitution with the designation as Lt. Governor of Delhi is necessary provided the offence alleged to have been committed by a member of the Delhi Police Fore has been committed while acting or purporting to act in the discharge of his official duty. A Division Bench of this Court in State (Delhi Administration) Vs. Sube Singh 1985 Crl.
LJ 1190 on consideration of the provisions of S. 140 of the Delhi Police Act came to the conclusion that S. 140 of the Delhi Police Act only lays down the period of limitation within which the cognizance can be taken by the Court and it is sub-section (2) of S. 197 which gives protective cover to the officials of the Delhi Police.
Therefore, there is no doubt that under S. 197 (2) of the Code of Criminal Procedure police officer belonging to the Delhi Police is entitled to the protection form prosecution without sanction of the appropriate authority provided the offence is committed by him in the course of performance of his official duties as a police officer."
Criminal Revision No. : 29/09 Page 10 of 1423. I have also perused the judgments cited by the Ld. Counsel for respondent No. 2 but with due regards, the same are not applicable to the facts of the present case. Therefore, the revision petition is allowed and the impugned order dated 30-07-2009, whereby the application U/s 197 Cr.P.C and 140 of the DP Act moved by the petitioner had been dismissed is set aside as no prosecution of petitioner can be done without prior sanction as per the judgment Ritesh Kumar Bihari Vs. Inspector Balkishan and others "supra" of our own High Court. Trial Court record be sent back alongwith the copy of this order. Revision file be consigned to Record Room.
(Announced in the open Court on 06-03-2014.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE -02, NORTH DISTRICT, ROHINI COURTS :
DELHI Criminal Revision No. : 29/09 Page 11 of 14