Madhya Pradesh High Court
Indrajeet Singh Chauhan vs The State Of Madhya Pradesh Thr. on 15 October, 2015
CRR.323/2015 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Criminal Revision No. 323/2015
Indrajeet Singh Chouhan
Vs.
State of MP and another
------------------------------------------------------------------------------
Shri Pradeep Katare, Advocate for the petitioner.
Shri Kamal Jain, Govt. Advocate for respondent
No.1/State.
Shri D.S.Kushwaha, Advocate for respondent No.2.
------------------------------------------------------------------------------
ORDER
(15/10/2015 ) This revision filed under Sections 397, 401 read with Section 482 of the Code of Criminal Procedure (CrPC) is directed against the order dated 23.6.2010, whereby learned Judicial Magistrate First Class (JMFC) Mehgaon, District Bhind in Case No.541/2011 has taken cognizance against the petitioner.
2. Shri Pradeep Katare, learned counsel for the petitioner submits that the petitioner is working as Deputy Superintendent of Police (DSP) in Home Department of State Government. An incident dated 12.8.2007 had taken place which was enquired into by the Police Department. After investigation, it was thought proper that FIR should be registered. Thus, on the basis of incident dated 12.8.2007, a FIR dated 22.9.2007 (Crime No. 141/2007) was registered against the complainant. The complainant filed a criminal complaint, in which he has specifically stated that the present petitioner is a police officer. The court below mechanically took cognizance of the matter and directed for registration of said complaint.
CRR.323/2015 23. Assailing this order dated 23.6.2010, it is urged that the date of alleged incident is 12.8.2007. The court has taken cognizance on 26.3.2010, which is beyond the statutory limitation prescribed under Section 468, CrPC. Secondly, it is urged that the petitioner being a public servant is entitled to enjoy protection as per Section 197 CrPC. Lastly, it is urged that the complaint is actuated with malafide and needs to be interfered with. He relied on 1990 SCC (Cri) 646 (Krishna Pillai vs. T.A.Rajendran).
3. Per Contra, Shri D.S.Kushwaha and Shri Kamal Jain supported the order. Shri Kushwaha submits that a plain reading of FIR shows that the complainant/ respondent No.2 herein assaulted one Rai Singh S/o Bhajanlal. In that case, Rai Singh should have been the complainant but FIR is lodged by the petitioner, which is an after thought and an example of abuse of power.
It is further submitted that the scope of interference in the present case is limited. This Court cannot examine the correctness of allegations. Shri Kushwaha relied on (2004) 4 SCC 432 (Jagdish Ram vs. State of Rajasthan) in this regard. He also relied on 2011 CrLJ 3350 (Ganesh Pal Singh vs. State of UP and another).
Shri Kamal Jain supported the stand of Shri Kushwaha.
4. No other point is pressed by the parties.
5. I have heard the parties at length and perused the record.
6. The question of limitation under Section 468 of CrPC was recently considered by the Five-Judge Bench of Supreme Court in (2014) 2 SCC 62 (Sarah Mathew vs. Institute of Cardio Vascular Diseases by its Director Dr. K.M.Cherian and others). The Supreme Court opined as under:-
"Thus, for the purpose of computing the period of CRR.323/2015 3 limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance."
7. In view of this Constitution Bench judgment of Supreme Court, the objection of petitioner regarding limitation is rejected.
8. The second objection of the petitioner goes to the root of the matter. As per this objection, it is urged that the court below has mechanically taken cognizance. A plain reading of order dated 23.6.2010 shows that the court below has merely referred about the complaint and few witnesses of the complainant, who deposed their statement. The question is, whether this is sufficient to take cognizance?
9. This point is no more res integra. In AIR 1998 SC 128 (M/s. Pepsi Foods Ltd. vs. Special Judicial Magistrate), the Apex Court opined that taking cognizance in a criminal case is a serious matter. It cannot be done on mere asking or by simply referring to the complaint and two witnesses of the complainant. There has to be proper application of mind. In my view, once complaint itself shows that the petitioner is a police officer, the court below was required to apply its mind whether the present petitioner is entitled to enjoy protection under Section 197 CrPC.
10. This Court has considered the scope of Section 197 CrPC in its recent order dated 24.9.2015, passed in Misc.Cri.Case No. 1084/2010 (Akhilesh Kumar Jha vs. State of MP). This Court opined as under :-
"The Apex Court in catena of decisions has considered the language employed in Sec. 197, CrPC. In (2009) 6 SCC 372 (State of Uttar Pradesh vs. Paras Nath Singh), the Apex Court opined that So far as public servants are concerned the cognizance of any offence, by any court, is barred by Section 197, CrPC, unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge CRR.323/2015 4 of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of. According to Black's law Dictionary the word 'cognizance' means 'Jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. The judgment of Paras Nath Singh (supra) was recently considered by Supreme Court in (2013) 10 SCC 705 (Anil Kumar and others vs. M.K.Aiyappa and another). It is held that as per the judgment of Paras Nath Singh (supra), State of W.B. vs. Mohd. Khalid [(1995) 1 SCC 684] and Subramanian Swamy v. Manmohan Singh [(2012) 3 SCC 64], it is clear that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. In Anil Kumar (supra), the Apex Court also considered the judgment of Army Headquarters v. CBI [(2012) 6 SCC 228]. The law on the issue of sanction was summarised 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. The Apex Court recognised the right of CRR.323/2015 5 public servant to raise the issue of jurisdiction when court proceeds without sanction. In Anil Kumar (supra), the complaint filed under Section 200, CrPC, was entertained without there being any sanction under Section 197, CrPC. The Government servant filed writ petition before the High Court. The High Court took the view that Special Judge could not have taken notice of private complaint unless the same was accompanied by a sanction order, irrespective of whether the court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant, who is alleged to have committed the offence in discharge of his official duties. The High Court for the said reasons quashed the order passed by the Special Judge as well as the complaint filed by the complainant. The High Court's order is affirmed by Supreme Court in Anil Kumar (supra).
11. In view of Pepsi Foods Ltd. (supra) and the order of this Court in Akhilesh Kumar Jha (supra), it is clear that the court below has mechanically passed the order dated 23.6.2010. The court below was required to apply mind, whether the petitioner was entitled to enjoy the protection available to him under Section 197 CrPC and whether the offences alleged against the petitioner are in discharge of his official duty.
12. Considering the aforesaid, impugned order, dated 23.6.2010, passed in Case No.541/2011 is set aside. The matter is remitted back to the learned JMFC, Mehgaon, District Bhind to consider the relevant aspects and deal with the matter in accordance with law, keeping in view the observation made herein above.
13. Petition is allowed to the extent indicated above. It is made clear that this Court has not expressed any opinion on merits of the case.
(Sujoy Paul)
(yog) Judge