Delhi District Court
Krishan Pal & Ors vs State on 29 April, 2013
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
Crl. Rev. No.95/12 (Old) (Instituted on 08.11.2012)
Crl. Rev. No.36/13 (RBT) (Date of Institution: 04.02.2013)
Date of Judgment : 29.04.2013
In the matter of:
Krishan Pal & Ors. .......Revisionists
Versus
State ......Respondent
J U D G M E N T
Present revision petition has been filed challenging order dated 03.10.2012 passed by learned Metropolitan Magistrate in case FIR No. 24/2012 registered at PS Kamla Market, for offence under Section 336 IPC.
2. Vide impugned order, learned Metropolitan Magistrate has served notice for an offence under Section 336 IPC upon all the accusedpetitioners while observing that cognizance of the offence has already been taken and the case had to proceed further, when Sec.140 of Delhi Police Act applies only to offences under Delhi Crl. Rev. No. 36/13 1 Police Act.
All the five petitioners are Delhi Police personnel. Accusation levelled against them is that on the night intervening 4/5.06.2011 at about 12.50 am, at Ram Lila ground, Kamla Market, Delhi all of them used access force in discharge of their duties and did an act rashly or negligently as to endanger human life and safety of others.
Case has been registered on complaint from Inspector Pramod Joshi, SHO of PS Kamla Market.
As per prosecution version, Hon'ble Supreme Court of India took suomoto cognizance in writ petition Crl. No. 122/11 titled as "Ram Lila Maidan incident dated 4/5.06.2011 vs. Home Secretary, Union of India and Ors".
Vide order dated 06.02.2011 Hon'ble Apex Court called upon Home Secretary, (Union of India), Chief Secretary, (Delhi Administration) and Commissioner (Delhi Police) to show cause and file personal affidavits to explain conduct of police authorities and the circumstances in which power with brutality and atrocities were asserted against a large number of people, who had gathered at Ram Lila maidan.
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That is how, Inspector Pramod Joshi got the case registered in terms of order dt.23.02.2012 passed by Hon'ble Supreme Court while disposing of W.P.No.122/11.
On completion of investigation challan was put in Court against all the accusedpetitioners. Ultimately, impugned order was passed on 03.10.2012.
Contentions
3. Learned counsel for petitioners has referred to provisions of Section 140 of Delhi Police Act and contended that herein cognizance having been taken beyond the prescribed period of limitation, learned Trial Magistrate has erred in framing notice against accusedpetitioners.
Further it has been submitted that prosecution did not obtain any previous sanction for the Administrator for extension of time required under Section 140 of Delhi Police Act for entertaining prosecution and as such, impugned order is liable to be set aside. In support of his contention, learned counsel for petitioners has referred to decision in Kiran Bedi vs. NCT of Delhi & Anr. Crl. Misc. (Main) No. 672 of 1995 decided by our Hon'ble High Court on 22.11.2000, Rakesh Kumar vs State Crl. Rev. No. 36/13 3 (NCT of Delhi) Crl. M. C. No. 2881/2007 decided by our Hon'ble High Court on 18.03.2009 and Mukesh Kumar vs. State 2012 [1] JCC 457.
On the other hand, it has submitted on behalf of the State that since the case came to be registered under the directions issued by Hon'ble Supreme Court, the contention raised by counsel for petitioners on the point of taking of cognizance beyond the period of limitation as specified under Section 140 of Delhi Police Act is without any merit.
Discussion
4. The first question arises as to whether the impugned order is liable to be set aside in view of bar to prosecution of the petitioners as provided under Sec.140 of Delhi Police Act?
Relevant portion of Section 140 of Delhi Police Act reads under: "Bar to suits and prosecution (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 an such duty or authority, or wherein it shall appear to the Court that the offence of wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if Crl. Rev. No. 36/13 4 entertained shall be dismissed if it is instituted, more than three months after the date of the at 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 Administrator, within one year from the date of the offence.
xxxxxxx"
It may be mentioned here that learned Metropolitan Magistrate has not rightly observed in the impugned order that Sec.140 of Delhi Police Act applies only to offences under Delhi Police Act. Provisions of Sec.140 come into application in case of any offence by police officer.
As noticed above, present case came to be registered on the complaint by Inspector Pramod Joshi of PS Kamla Market in terms passing of order dated 23.02.2012 by Hon'ble Apex Court in writ petition Crl. No.122/11. Copy of the order dated 23.02.2012 has not been made available by any of the parties, but relevant directions issued by the Hon'ble Supreme Court as reproduced in the complaint read as under: "The police shall also register criminal case against the police personnel and members of the gathering at the Ramlila Ground (whether they were followers of Baba Ramdev or otherwise) who indulged in damage to property, brickbatting etc. All these have already been reported to the Police Station Kamla Market. The police shall complete the Crl. Rev. No. 36/13 5 investigation and file a report under Section 173 of the CrPC within three months from today."
From the above directions issued by Hon'ble Apex Court, it is obvious that police was directed to complete the investigation and file report under Section 173 CrPC and that too within three months from the date of order i.e. 23.02.2012. A perusal of Trial Court record would reveal that challan was presented in Court on 22.05.2012 i.e. within the period stipulated by the Hon'ble Apex Court.
This Court finds that when the directions were issued by Hon'ble Apex Court for completion of investigation and filing of report under Section 173 CrPC within three months w.e.f. 23.02.2012, the bar as regards "time limit of three months", as provided under Section 140 of Delhi Police Act would not come to the aid of the petitioners.
Even otherwise, although the FIR was registered on 09.03.2012, IO had to collect evidence from different sources to find out as to who were the persons involved in commission of the crime. Since the case came to be registered as per directions issued by Hon'ble Apex Court and the investigation that followed, took sufficient time in proper identification of the accused persons Crl. Rev. No. 36/13 6 involved in commission of crime, it cannot be said that the bar of limitation as provided under Sec.140 Delhi Police Act could get attracted in this case.
This Court is of the opinion that the expression "after the date of the act complained of" as appearing in Sec.140 of the Act would come into application where particulars of the wrongdoer - police officer or other persons are known, and not where identity of offender / wrongdoer is yet to be be established.
Case titled as Mukesh Kumar Vs. State (supra) cited by learned counsel for the petitioners was not a case registered on the directions of Hon'ble Apex Court. Secondly, that was a case alleging commission of offences under Sections 193, 196, 200, 209 IPC and therein learned Trial Magistrate had observed that there was sufficient material to show that incorrect record was framed by the petitioner therein - SI Mukesh Kumar in conspiracy with coaccused in connection with case FIR No. 99/2001 PS Connaught Place. So that was a case where identity of offender was known and established.
In Rakesh Kumar's case (supra) case for an offence under Section 304A IPC was registered against the petitioner therein on Crl. Rev. No. 36/13 7 the allegations that he, while driving the government traffic crane acted in rash and negligent manner resulting in death of one Deepak, member of the vehicle lifting squad who suffered injuries and succumbed thereto, after the iron rope of the crane was loosened by the petitioner. Therein also, identity of the accused - police officer was known and that was not a case registered as per directions of Hon'ble Apex Court.
In Kiran Bedi's case (supra), allegations levelled against the petitioners were that she, while posted as DCP (North) ordered to cane charge to dispurse crowd and made herself liable for offence under Section 323, 506, read with Section 34 IPC. There also identity of the police officer was not in dispute. Furthermore, that was not a case registered on directions of Hon'ble Apex Court specifying period for presentation of challan.
Herein, in view of the specific directions issued by Hon'ble Apex Court giving three months' time to the police for investigation and presentation of challan and also having regard to the fact that it took sufficient time in establishing the identity of the accused - petitioners - police officers, this court again finds that the bar U/s 140 of Delhi Police Act is not attracted in the Crl. Rev. No. 36/13 8 given facts and circumstances of this case.
5. The second question arises whether any sanction U/s 197 Cr.P.C. was required for prosecution of the accused - petitioners?
It may be mentioned that in the course of arguments, learned counsel for petitioner laid much stress only on provisions of Sec.140 of Delhi Police Act and not on sanction U/s 197 Cr.P.C.
Relevant portion of Sec.197 Cr.P.C. reads as under : Prosecution of Judges and public servants : (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 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:"
As noticed above Section 197 CrPC clothes the court with jurisdiction to take cognizance of offence alleged to have been Crl. Rev. No. 36/13 9 committed by public servants while acting or purporting to act in the discharge of his official duties.
This court finds that provisions of Sec.197 Cr.P.C. are not attracted to the present case, as the petitioners are police officer / officials not removable from service save by or with the sanction of Government. Petitioner Krishan Pal, Ravi and Dinesh Kumar are serving as Constables with Delhi Police; petitioner - Vijender Singh is serving as Head Constable with Delhi Police and petitioner - Sushil Kumar is serving as SubInspector.
Section 21 of Delhi Police Act provides that subject to provision of Article 311 of Constitution and the rules, the Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police, Additional Deputy Commissioner of Police, Principal of the Police Training College or of the Police Training School or any other officer of equivalent rank, may award to "any police officer of subordinate rank" any of the following punishments, namely:
(a) dismissal;
(b) removal from service;
(c) reduction in rank;
Crl. Rev. No. 36/13 10
(d) forfeiture of approved service;
(e) reduction in pay;
(f) withholding of increment and
(g) fine not exceeding one month's pay.
(2) xxxxx xxxxx xxxxx xxxxx
(3) xxxxx xxxxx xxxxx xxxxx
(4) xxxxx xxxxx xxxxx xxxxx
(5) xxxxx xxxxx xxxxx xxxxx
In case titled as Sant Kumar & another Vs. State of Punjab & anr, 2003 Cr.L.J. 2949, when it was found that the petitioners therein (SubInspector and Assistant Sub Inspector) could be removed from service or dismissed from service by Superintendent of Police, Hon'ble High Court of Punjab & Haryana held that the petitioners therein were not removable from service save by or with the sanction of the Government, and as such petitioners were not entitled to the protection of Sec.197 Cr.P.C.
Similarly, in view of provisions of Sec.21 of Delhi Police Act all the petitioners herein are police officers/ officials not removable from service save by or with the sanction of Crl. Rev. No. 36/13 11 Government. Therefore, they are not entitled to protection under Sec.197 Cr.P.C.
Conclusion
6. In view of the above discussion, this court does not find any merit in any of the contentions raised by learned counsel for petitioners. The revision petition is accordingly dismissed.
Trial Court Record be returned and revision petition be consigned to Record Room.
Petitioners to appear before learned Trial Court on 04.05.2013.
Announced in Open Court
on 29.04.2013 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
Crl. Rev. No. 36/13 12