Delhi District Court
Subhash Thukral vs State Of Nct Of Delhi on 24 July, 2013
IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-01/ SPECIAL JUDGE (NDPS)
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No. 23/2013
Unique I.D. No. 02402R0116672013
In the matter of :
SUBHASH THUKRAL
S/o Late Sh. D.P. Thukral ..............Revisionist
Vs.
1. STATE OF NCT OF DELHI.
2. COMMISSIONER OF POLICE, DELHI. ..........Respondents
Date of Institution : 17.04.2013
Date of reserving the order : 08.07.2013
Date of pronouncement : 24.07.2013
ORDER
1. This order shall dispose of the criminal revision petition under section 397/399 Cr.PC, preferred by the revisionist for setting aside the impugned order dated 26.02.2013 of Ld. ACMM-01, Karkardooma Courts, summoning the revisionist u/s 204/217/218 IPC, in case FIR No. 302/12, PS Shahdara.
2. On behalf of the revisionist, it has been submitted by Ld. Counsel that Ld. ACMM has taken the cognizance of a purported offence u/s 204/217/218 IPC without application of mind and without understanding the import of section 218 as the petitioner/ revisionist had no inclination of saving any person from punishment. Ld. ACMM has not gone through all the judicial record which reveals that accused in his anticipatory bail application has admitted the fact that the sale deed in Criminal Revision No. 23/2013 Page 1 of 9 question was executed by him in favour of the other accused. The court had summoned the SHO PS Shahdara and subsequently the IO/ revisionist to enquire about the said documents and the fact regarding loss of documents has also been covered in the departmental enquiry and therefore, there was no concealment of fact by the revisionist about loss of documents. No sanction was taken from the Administrator before commencing prosecution of the revisionist within one year from the date of offence. Summoning orders have not been issued within a period of 3 months from the date of commission of the act by the revisionist. Ld. ACMM has not considered the judgment in case of 'Sumer Chand Vs. Union of India, 1993 AIR 2579, 1994 SCC (1) 64 and Rakesh Kumar Vs. State (NCT of Delhi)'. Provisions of section 468 and 197 Cr.PC have also not been taken into consideration by Ld. ACMM. Ld. ACMM has not appreciated that if section 218 IPC is not made out then offences u/s section 207 and 217 IPC are non- cognizable and hence no FIR can be registered at the behest of a complainant or even Ld. Magistrate. Ld. ACMM has directed registration of FIR without going through the trial court record in case FIR No. 303/91, PS Shahdara.
3. It is further submitted on behalf of revisionist that admittedly the revisionist had joined Delhi Police as S.I. in 1997 and retired as ACP on superannuation on 30.11.2011. There is no dispute that in the departmental enquiry, he has been exonerated on 09.10.1996. While passing judgment on 05.08.2010, in the case Ld. ACMM has mentioned that in the case which was investigated by the petitioner it is stated that wrong mentioning of property number by accused No. 1 in the alleged sale-deed dated 05.07.198 executed by him in favour of the accused No. 2 has given rise to this long drawn legal battle between him and the complainant which lasted for about 19 years. Ld. Successor court on application filed for return of title deeds, passed an order on Criminal Revision No. 23/2013 Page 2 of 9 04.09.2012 indicting the petitioner that the title deed was was lost by him which resulted in acquittal of the accused and passed an order which was sent to Commissioner of Police for verifying the facts of FIR. Ld. ACMM held that the petitioner and or his associates were guilty of offences punishable u/s 217/218 IPC r/w section 204 IPC and ought to be prosecuted for the said offences. A report was sought from office of Commissioner of Police to be submitted on 04.10.2012. After registration of the case, charge-sheet dated 26.02.2013 was filed on which Ld. ACMM took the cognizance for the offences u/s 204/217/218 IPC on the same date and summoned the revisionist for trial.
4. It has been submitted that revisionist has been aggrieved by the summoning order passed by Ld. ACMM as the same is without merits as the offence under sections mentioned are not made out. In the aforesaid order and the summoning order the Ld. ACMM also made allegations that the original documents were lost by the petitioner who also misrepresented that he had never collected those documents during the investigation of the said FIR No. 303/91. This averment was never made by the I.O. and Ld. ACMM has come to this conclusion without there being any whisper of denial by the petitioner. The Ld. ACMM has also observed that the said seizure memo was not placed on the judicial records by the IO for reasons best known to him whereas the order of Ld. Predecessor clearly shows that the IO had deposed as PW-8 and documents were placed on record as Ex. PW8/A. The original documents were sent to CFSL which were returned at PS Shahdara when the petitioner was already transferred and this fact has clearly emerged from the departmental enquiry. The observation of Ld. ACMM of placing a different seizure memo dated 27.09.1993 is once again unfounded. It was the copy of the same seizure memo which can be cross-checked by the Ld. ACMM. This aspect has also emerged during the investigation and has been Criminal Revision No. 23/2013 Page 3 of 9 mentioned by the IO in the charge-sheet filed by him in the court on 26.02.2013. Ld. ACMM has not considered the merits of the case and has cast aspersions on the integrity and competence of a Police Officer without application of mind and without any evidence in respect of the same and has also pronounced in the concluding part of the order that the petitioner is guilty of offences punishable u/s 217 & 218 IPC r/w 204 IPC without any investigation and without following the due process of law. Section 204 and 217 are non-cognizable whereas section 218 is cognizable but the description given by the Ld. Magistrate of the Act of the petitioner does not make it a prima-facie case punishable u/s 218 IPC.
5. It has further been submitted that Ld. ACMM has not considered section 140 of Delhi Police Act, 1978 which bars suits and prosecution against the police officials. On the ground that the same shall be dismissed if it is not entertained within 3 months from the date of the offence and if not instituted within one year from the date of the offence after seeking sanction from the administrator. Section 140 of the Delhi Police Act reads as under :-
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 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 Administrator, within one year from the date of the Criminal Revision No. 23/2013 Page 4 of 9 offence.
(2). In the case of intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrong doer 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 set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a copy of above said notice shall be annexed to and manner of service thereof.
6. Ld. Counsel for the revisionist has relied on the authorities reported as 'Sumer Chand Vs. Union of India, 193 AIR 2579, 1994 SCC 1/64 wherein Hon'ble Apex Court has held that when the Act has reasonable connection and nexus with their duties attached with the office the act complained of therefore done under the colour of office are barred by limitation as they squarely fall within section 140 (1) of the Delhi Police Act. Reliance has also been placed on the authority reported as Rakesh Kumar No. 1912/T Vs. State (NCT of Delhi).
7. It has been further submitted that Ld. ACMM has not considered the provisions of section 468 Cr.PC which bars prosecutions after the period of limitation as specified in this section and of section 197 Cr.PC which requires previous sanction from the appropriate govt. for taking cognizance in any offence alleged to have been committed by a public servant while acting or purporting to be acting in the discharge of his official duty.
8. Ld. Counsel for the revisionist also submitted that D.P. Act is a special law which prevails over the general law and period of limitation prescribed under the D.P. Act, and therefore, summoning order dated Criminal Revision No. 23/2013 Page 5 of 9 26.02.2013, passed by Ld. ACMM was beyond the period of limitation as prescribed u/s 140 of D.P. Act which is illegal and therefore, it s prayed that the revision petition be allowed.
9. Ld. Chief Public Prosecutor for State has not disputed the facts but it has been submitted by him that the revisionist was charge-sheeted for commission of offences u/s 204/217/218 IPC and provisions of Limitation Act are not applicable, and there was no bar of limitation.
10. Admittedly, the revisionist herein, is a police officer who on the alleged date, time and place was posted as S.I. and therefore, he is entitled to the benefit of provisions u/s 140 of D.P. Act. Admittedly, the prosecution has not obtained any sanction under the said provision. The authorities relied by Ld. Counsel for revisionist are fully applicable on the facts and circumstances of the case. He could not be deprived of the protection of section 140 D.P. Act. In the authority reported as Inspector Rajender Saini and Anr. Vs. State, 2005 Cri. L. J. 3861, it was held that the offence u/s 201 IPC was not committed outside the ambit of duty and therefore, limitation prescribed u/s 468 Cr.PC will apply and in view thereof the cognizance of offence against the petitioner therein was barred by limitation on the date when the impugned order was passed by Ld. Metropolitan Magistrate. In authority reported as 'Rakesh Kumar No. 1912/T Vs. State (NCT of Delhi), Crl. M.C. No. 2881/2007', it was held that the sanction was not obtained within the period of limitation as per the provision of section 140 D.P. Act.
In the authority reported as 'V.V. Kadampur Vs. The State of Mysore, 1963 AIR 849, 1963 SCR Supl. (2) 6', Hon'ble Apex Court has held that the act alleged to have been done, as already stated, was the preparation of a false Panchnama and a false report. The question still to be considered, therefore, is whether when the preparation of a correct Panchnama and a true report as regards the seizure is the duty Criminal Revision No. 23/2013 Page 6 of 9 of the police officer concerned, he prepares instead of a false Panchnama and a false report, that act is done by him "under colour"
or in excess of that duty. The expression "under colour of something" or "under colour of duty", or "under colour of office", is not infrequently used in law as well as in common parlance. Thus in common parlance when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that opportunity to get money for himself under colour of making collection or a charity. Whether or not when the act bears the true colour of the office or duty or right, the act may be said to be done under colour of that right, office or duty, it is clear that when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right or office, the act is said to be done under colour of the office or duty or right.
Hon'ble Apex Court had also observed that it appears clear that the legislature deliberately gave the protection of Section 161 (1) of the Bombay Police Act, 1951 to the accused persons against offences under any law and there is no justification for our limiting that protection to offences under the Police Act only. Therefore, it cannot be said that protection u/s 140 of D.P. Act is available to the officials/officers under D.P. Act only but the protection is available even for offences under other penal Acts.
11. In the present case, Ld. ACMM vide judgment dated 05.08.2010 took the cognizance of the alleged violation of the provisions of law by the revisionist and thereafter, Ld. Successor court of Ld. ACMM vide order dated 04.09.2012 observed that the revisionist was guilty of offence u/s 217/218 IPC r/w section 204 IPC and ought to be prosecuted for the said offences but the charge-sheet was filed on 26.02.2013 beyond the prescribed period of three months. Ld. ACMM also took the cognizance of offences on the same day but there was no sanction of Ld. Criminal Revision No. 23/2013 Page 7 of 9 Administrator and therefore, cognizance could not have been taken by Ld. ACMM being barred by limitation.
In authority reported as Rajender Saini (supra) and Prof. Sumer Chand (supra), it has been held that no cognizance of the offence could be taken by Ld. ACMM except with the previous sanction by govt. and taking of such cognizance by Ld. ACMM was wrong as there was no sanction to prosecute the revisionist u/s 140 of D.P. Act.
In the authority reported as 'Prof. Sumer Chand Vs. UOI AIR 1993 SC 2579', it was held that the Delhi Police Act is a special Enactment and section 140 thereof imposes certain restriction and limitations in the matter of institution of suits and prosecution against police officers in respect of acts done by a police officer under colour of duty or authority or in excess of such duty or authority. One such restriction is that such suit or prosecution 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. It has also been held that the Act is a special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for suits against persons governed by the Act in relation to matters covered by Section 140, by virtue of Section 29(2) of the Limitation Act, the period of limitation prescribed by Section 140 of the Act would be the period of limitation prescribed for such suits and not the period prescribed in the Schedule to the Limitation Act. This means that if the suit filed by the appellant falls within the ambit of Section 140 then the period of limitation for institution of the suit would be that prescribed in Section 140 and not the period prescribed in Article 74 of the Limitation Act.
12. Therefore, in view of the above discussion, cognizance taken by Ld. ACMM against the revisionist in the charge-sheet filed vide FIR No. 302/12, u/s 204/217/218 IPC, PS Shahdara, was barred by limitation.
Criminal Revision No. 23/2013 Page 8 of 9Accordingly, the revision is allowed. Impugned order dated 26.02.2013 is hereby set aside.
13. Copy of order be sent to Ld. Trial Court for information. Trial Court Record be sent back. Revision file be consigned to record room.
Announced in the open court T.S. KASHYAP
today i.e on July 24th, 2013 ASJ-01/ Special Judge (NDPS)
Shahdara District, Delhi
Criminal Revision No. 23/2013 Page 9 of 9