Allahabad High Court
Ajay Kumar Mishra I.P.S. vs State Of U.P. And Another on 9 December, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 22.11.2022 Delivered on 09.12.2022 Court No. - 84 Case :- APPLICATION U/S 482 No. - 512 of 2008 Applicant :- Ajay Kumar Mishra I.P.S. Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Misra,Imran Ullah,Viresh Misra Counsel for Opposite Party :- Govt. Advocate, Kuldeep Kumar, Rajiv Gupta, Rakesh Kumar Srivastava, Shiv Kant Mishra, Uma Nath Pandey, V.N.Pandey Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant before this Court is an officer of Indian Police Service, who is aggrieved by criminal proceedings initiated against him in pursuance of order dated 05.10.2005 passed under Section 204 Cr.P.C. whereby he was summoned on basis of complaint and statements recorded under Sections 200 and 202 Cr.P.C. to face trial in Complaint Case No. 2045 of 2005 (Ram Kishan vs. Ajay Kumar Mishra and others), under Sections 500, 504, 506 IPC.
2. Opposite Party No. 2 has set up a case that he was arrested in pursuance of a false FIR lodged against him under Section 376 IPC. When he came out from jail on bail, he came to know that in his absence applicant and other accused entered forcefully in his house, misbehaved with his wife and insulted her with intent to provoke breach of peace as well as committed offence of intimidation. They also committed theft of Rs. 5000/- and when no FIR was lodged on his complaint, he approached Magistrate concerned by way of filing criminal complaint, wherein his statement was recorded under Section 200 Cr.P.C. as well as statements of witnesses were also recorded under Section 202 Cr.P.C. and applicant was summoned.
3. Applicant has challenged criminal proceedings by way of filing this application way back in the year 2008 when this Court vide order dated 17.01.2008 admit application and passed order for stay of further proceedings of Complaint Case No. 2045 of 2005, pending in the Court of Judicial Magistrate, Gautambudh Nagar.
4. Order sheet indicates that this application was dismissed for want of prosecution on 05.05.2017 but it was restored vide order dated 25.02.2021 alongwith restoration of interim order.
5. Sri Imran Ullah, learned counsel for applicant, submitted that Opposite Party No. 2 (complainant) was duly arrested during investigation conducted by applicant in a FIR lodged against him and later on he was granted bail and only in order to wreak vengeance, he cooked up this story that applicant alongwith co-accused entered in his house in his absence and misbehaved with his wife, extended threat and also committed theft. He further submitted that applicant is also protected under Section 197 Cr.P.C. and that even considering the statements recorded before Magistrate no case is made out against applicant for the offence under Sections 504, 506, 500 IPC.
6. Per contra, Sri Rakesh Kumar Srivastava, learned counsel appearing for Opposite Party No. 2, has opposed the above submissions and contended that there was formation of opinion by Magistrate that there are sufficient grounds to summon applicant for above referred offences.
7. In the above factual and legal background the Court has considered rival submissions keeping in view the judgment passed by Supreme Court in Lalankumar Singh and others vs. State of Maharashtra, 2022 SCC OnLine SC 1383 that for the purpose of passing an order under Section 204 Cr.P.C. there must be a formation of opinion and relevant paragraph of the judgment is reproduced as under:
"38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused...." (Emphasis added)
8. It is not disputed by learned counsel for parties that against complainant (Opposite Party No. 2) a FIR was lodged under Section 376 IPC being Case Crime No. 246 of 2004 at Police Station Kasna, District Gautambudh Nagar. Applicant, an officer of Indian Police Service, has investigated the case and during investigation complainant was arrested only after attachment warrant was issued against him under Section 82 Cr.P.C.
9. I have carefully perused the complaint and statements recorded under Sections 200 and 202 Cr.P.C. Complainant in his complaint stated that police personnels were against him as his employee was put behind the bars in violation of Motor Vehicles Act and when he came out he lodged FIR against some police personnels wherein criminal complaint case was registered and some police personnels were summoned. In order to take revenge of criminal proceedings registered by employee of complainant, on the basis of false allegation, a FIR was lodged against him under Section 376 IPC wherein he was arrested and in his absence applicant and co-accused entered in his house, misbehaved with his wife and committed other offences. In his statement recorded under Section 200 Cr.P.C. he made similar allegations which are reiterated by other witnesses also. Trial Court by means of impugned order summoned applicant and other accused under Sections 504, 506, 500 IPC.
10. In order to ascertain whether there was sufficient ground to proceed against applicant, it would be relevant to refer Section 500 IPC which is for punishment of defamation and defamation is defined under Section 499 IPC which is reproduced as under:
"499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
Explanation 1.--It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.--It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
Explanation 3.--An imputation in the form of an alternative or expressed ironically, may amount to defamation.
Explanation 4.--No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
11. I have carefully perused the complaint as well as statements recorded under Sections 200 and 202 Cr.P.C. and do not find any averment that applicant by words, either spoken or intended to be read, made any imputation concerning any person that will harm the reputation of complainant. In the entire statement there is not a single word in order to make out even prima facie case under Section 499/500 IPC. For this purpose the relevant part of the order is reproduced as under:
"परिवादी के अनुसार, परिवादी को मुल्जिम सं. 1 व 2 द्वारा गिरफ्तार किया गया तथा उसके साथ मारपीट की व गाली-गलौच की, अभद्र व्यवहार किया एवं उसकी पत्नी के साथ भी अश्लील हरकत की। परिवादी की गिरफ्तारी के बाद परिवादी को जेल भेज दिया तथा परिवादी के जेल में रहने के दौरान मुल्जिम सं. 1 व 2 ने परिवादी के घर का दरवाजा खाटखटाया तो परिवादी की पत्नी श्रीमती उर्मिला ने स्पष्ट रुप से दरवाजा खोलने के लिये मना किया और कहा कि वह स्त्री है तथा घर में कोई पुरुष नहीं है इसलिये दरवाजा नहीं खोलेगी। इसके बावजूद मुल्जिमान नं. 1 व 2 ने शकीला ने घरवालों से मिलकर फावड़ा व गेंदाडे से परिवादी को दरवाजा तोड़ दिया और उसकी पत्नी के साथ पलंग पर पटककर अश्लील हरकतें की और यहां तक कि उसकी छाती एवं पेशाब की जगह पर हाथ मारा तथा परिवादी के घर में रखे सामान को तोड़ा व 5 हजार रुपये उठा ले गये एवं बुरी-बुरी गालियां दी तथा जान से मारने की धमकी दी।
परिवादी ने अपने कथन के समर्थन में 11 किता अभिलेख एस.एस.पी. आदि को दाखिल प्रार्थना पत्र की रसीद एवं परिवादी ने अपना स्वयं का बयान धारा 200 सी.आर.पी.सी. के अन्तर्गत परिवाद पत्र की पुष्टि की तथा अपने कथन के समर्थन में श्रीमती उर्मिला, ईमरत, पवन गोयल को धारा 202 सी आर पी सी के अन्तर्गत परीक्षित कराया गया, जिसने परिवादी के कथन की पुष्टि की। इन परिस्थितियों में दस्तावेजी साक्ष्य के आधार पर अभियुक्तगण अजय कुमार मिश्रा व रविपाल सिंह के विरुद्ध धारा 504, 506, 500 भा.दं.सं. के अन्तर्गत आहूत किये जाने का प्रथम दृष्टया आधार पर्याप्त पाया जाता है। अतः आदेश हुआ कि अभियुक्तगण अजय कुमार मिश्रा व रविपाल सिंह को धारा 504, 506, 500 भा.द.सं. जरिए सम्मन तलब किया दिनांक 8.11.05 को पेश हो।"
12. From the above, it is absolutely clear that there is no sufficient material to proceed against applicant for the offence committed under Section 499 IPC, punishable under Section 500 IPC and the Magistrate concerned in a very casual manner has summoned applicant.
13. With regard to other offences, i.e., under Sections 504, 506 IPC, though it cannot be said that there is no sufficient material to summon applicant, however, as held in Lalankumar Singh (supra) that there must be a formation of opinion that there are sufficient ground to proceed against applicant and from bare perusal of above referred part of order said requirement of formation of opinion is absolutely missing. Therefore, summoning order against applicant under Sections 504, 506 IPC is also failed, if tested in terms of law laid down in Lalankumar Singh (supra).
14. There is another aspect of the case that complainant was arrested by applicant for committing offence under Section 376 IPC after the Court directed to take coercive measures under Section 82 Cr.P.C. Therefore, in order to avoid undue harassment of a Police Officer, Magistrate concerned ought to have taken note of protection granted to a public servant for an act committed during his official duty, that cognizance of offence cannot be taken in absence of prior sanction under Section 197 Cr.P.C. The Magistrate ought to have considered the facts of case and possibility of harassment of a Police Officer taking note of provision of Section 197 Cr.P.C. In this regard it would be apposite to refer few paragraphs of the judgment passed by Supreme Court in D. Devaraja vs. Owais Sabeer Hussain (2020) 7 SCC 695 as under:
"65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above.
66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative toprotect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.
67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.
68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.
69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.
70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.
71. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act."
(Emphasis added)
15. In view of above discussion the proceedings initiated by Opposite Party No. 2 would squarely fall under para 102(7) of State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Suppl (1) SCC 335, which is reproduced as under:
"102 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
16. The outcome of above discussion is that the summoning order is not only bereft of requisite opinion as required under Section 204 Cr.P.C. but also not justified in the light of judgment passed in Lalankumar Singh (supra). Further, there is no ingredients of Section 500 IPC in the statement made by complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. and further considering the circumstances under which complainant was arrested by applicant, the Magistrate concerned ought to have taken note of Section 197 Cr.P.C.
17. In view of above, application is allowed. Summoning order dated 05.10.2005 as well as criminal proceedings in Complaint Case No. 2045 of 2005 (Ram Kishan vs. Ajay Kumar Mishra and others), under Sections 500, 504, 506 IPC, are hereby quashed.
Order Date :-09.12.2022 AK