Delhi High Court
The State Of Nct Of Delhi vs Samunder Singh on 31 March, 2014
Author: Sunil Gaur
Bench: Sunil Gaur
$-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. No.1234/2011
THE STATE OF NCT OF DELHI .....Petitioner
Through: Mr. Mukesh Gupta, Additional
Public Prosecutor
versus
SAMUNDER SINGH ....Respondent
Through: Mr. Vijendra Bhardwaj, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
% ORDER
31.03.2014
1. Quashing of impugned order of 27th September, 2004 vide which SI Raj Kumar and ASI Charan Singh have been summoned as accused for the offence under Sections 193/341/364-A/506/34 of IPC and the proceedings arising out of the complaint in question is sought in this petition.
2. The version of respondent-complainant, as put forth in pre- summoning evidence, deserves to be taken note of. It reads as under: -
"On 23.09.2003 I was present at my residence, 8/10 persons in plain clothes came to my residence and they picked up my son Rajesh Rathi and took him with them. I gave information to the PCR of abduction of my son at about 4.00 P.M. on 23.09.2003. PCR van arrived at my residence and they advised me to go to PP, HC Rai Singh from PP arrived at my residence, I informed HC Rai Singh of the Crl.M.C.1234/2011 Page 1 incident and gave the vehicle numbers to him. The number of vehicles are Maruti Alto DL2C/7600 and Maruti Zen DL3CM/6609.
On 23.09.03 I went to the O/o Special Staff, Dhaula Kuan where SI Raj Kumar and ASI Charan Singh met there. My son Rajesh Rathi was found in their custody. SI Raj Kumar and ASI Charan Singh demanded Rs.2.00 Lakhs from me for release of my son Rajesh Rathi. These two police officers stated either give Rs.2.00 Lakhs or we will involve Rajesh in some false case or we may eliminate him. I was not allowed to meet my son Rajesh. On 27.09.03 I gave information of abduction of my son through fax to Commissioner of Police, Human Rights Commission, LG, Delhi. I applied for supply of the copy of message given by me to PCR, but I was informed that they can supply the copy of PCR form only on the direction of Hon'ble Court. The copy of the letter given by inspector Administration to me is Ex.CW1/A. The copy of PCR form dated 23.09.03 is mark A. On 27.09.03 my son was falsely arrested in case FIR No.199/03 U/s 399/402 IPC and 25/54/59 of the Arms Act. The copy of DD No.16 dated 23.09.03 written by HC Raj Singh at PP SG Hospital, PS Mangolpuri which is mark B. The copy of DD No.27 showing the arrival of Raj Singh in PS is marked C. The copy of FIR No.199/03 is marked D. After false involvement of my son in case FIR No.199/03, I gave a complaint to DCP (Vigilance), Delhi.
My son Rajesh Rathi was produced by the police on 28.09.03 in case FIR No.199/03. Earlier also the same police officers i.e. SI Raj Kumar and ASI Charan Singh picked up my son while they were posted at special Staff, PS Rajouri Garden. At that time Rajesh Rathi was detained in legal custody for five days continuously and he was involved falsely in a case of car jacking and arms act. My son Rajesh was illegally detained by SI Raj Kumar and ASI Charan Singh for 3 days and then he was falsely implicated in a fabricated case being its FIR No.199/03 U/s 399/402 IPC and 24/54/59 of Arms Act."
Crl.M.C.1234/2011 Page 2
3. At the final hearing, learned Additional Public Prosecutor for petitioner-State had cited Apex Court's decision in Anjani Kumar v. State of Bihar and Anr. (2008) 5 SCC 248 to contend that the complaint in question against petitioners, who are police officers, is counter-blast to the action taken by them in their official capacity and the allegations levelled in this complaint are malicious and an afterthought as the complainant had not levelled allegations against petitioners when he was produced before the Magistrate upon being arrested in FIR No.199/2003 under Sections 399/402 of IPC read with Sections 25/27 of the Arms Act. To highlight factual background of this case, it was asserted by learned Additional Public Prosecutor for petitioner that Inspector Raj Kumar has earned out of turn promotion for his commendable work in eliminating the most wanted criminals. Besides this, he has been awarded one President Police Medal for Gallantry, Six Asadharan Karya Puraskar-the highest award given by the Commissioner of Police for showing sincerity, gallant act and exemplary courage in solving sensational cases, 223 rewards of worthy Commissioner of Police, 57 rewards of Joint Commissioner of Police and 117 rewards of Addl. CP/DCP. It was pointed out that SI Charan Singh, the other officer against whom the respondent has levelled baseless allegations, has earned 3 Asadharan Karya Puraskar (AKP) - the highest award given by the Commissioner of Police for showing sincerity, gallant act and exemplary courage in solving sensational cases, 138 Commendation Rolls-the second highest award given by the Commissioner of Police, 21 Commendation Certificates awarded by Joint Commissioner of Police, 134 Commendation Cards awarded by Addl. CP/DCP. It was also pointed Crl.M.C.1234/2011 Page 3 out that alleged victim/son of respondent-complainant is not only a dismissed Constable of Delhi Police but also a history sheeter of Police Station Mangol Puri, Delhi, who was dismissed from the service as he was involved in anti-social activities and thereafter, his involvement was found to be in as many as nine heinous crimes and has also been convicted in case FIR No.332/2001 under Sections 392/397/34 of IPC registered at P.S. Keshav Puram, Delhi and was awarded rigorous imprisonment of ten years and a fine of `25,000/-.
4. While taking note of the aforesaid stand taken on behalf of petitioner-State, the proceedings in the complaint case in question were directed to be stayed. Learned counsel for respondent-complainant had contended that impugned order is based on documentary evidence and in view of the dictum of Apex Court in State of Haryana v. Bhajan Lal 1992 AIR (SC) 604, High Court has no jurisdiction to examine correctness or otherwise of the allegations levelled in the complaint in question and impugned order rightly relies upon pre-summoning evidence of respondent-complainant and thus, there is no merit in this petition.
5. After having heard both the sides and on perusal of impugned order, pre-summoning evidence, material on record and the decisions cited, I find that truthfulness of the allegations levelled cannot be gone into while exercising inherent powers under Section 482 of Cr.P.C. but what stares in the face is that instant complaint prime facie appears to be a counterblast to FIR No.199/2003 registered against Rajesh Rathi, son of respondent-complainant, who is a dismissed police official and is said to be also involved in other criminal cases including FIR case No.186/03 Crl.M.C.1234/2011 Page 4 under Section 392/397/34 of IPC registered at P.S. Naraina, Delhi. It is pertinent to note that respondent-complainant's version of his son Rajesh Rathi being abducted get clouded by the fact that he was apprehended in FIR No.199/2003 under Sections 399/402 of IPC read with Section 25/27 of the Arms Act by SI Raj Kumar and his staff. In any case, merits of instant complaint cannot be pre-judged at this stage. It would suffice to note that in a complaint case like instant one, requirement of prior sanction for prosecution of SI Raj Kumar and ASI Charan Singh cannot be undermined. It cannot be said that the alleged offence is not reasonably connected with the performance of official duties by these two police officials. On this aspect, pertinent observations made by Apex Court in Anjani Kumar (supra) are as under:-
"The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the Crl.M.C.1234/2011 Page 5 objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could Crl.M.C.1234/2011 Page 6 have made him answerable for a charge of dereliction of his official duty; if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant."
6. Afore-noted dictum stands reiterated by Apex Court in Anil Kumar & Ors. v. M.K. Aiyappa & Ors. (2013) 10 SCC 705 in these words:-
"Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him.....If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio."
7. In the considered opinion of this Court the afore-noted dictum aptly applies to the facts of the instant case, as I find that SI Raj Kumar and ASI Charan Singh had acted in the course of their official duties and so, impugned order summoning them as an accused without prior Crl.M.C.1234/2011 Page 7 sanction under Section 140 of Delhi Police Act renders impugned summoning order unsustainable and it is accordingly quashed. However, liberty is granted to respondent-complainant to obtain statutory sanction under Section 140 of Delhi Police Act within four weeks and if statutory sanction under Section 140 of Delhi Police Act is not granted, then, proceedings in the complaint in question shall come to an end. It is expected that this exercise would be completed within a reasonable time i.e. within a period of three months.
8. This petition is disposed of in aforesaid terms while not commenting on the merits of this case.
(SUNIL GAUR)
JUDGE
MARCH 31, 2014
s
Crl.M.C.1234/2011 Page 8