Madhya Pradesh High Court
Devesh Golhani vs Ravi Kumar Sahu on 20 May, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:13549
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 20th OF MAY, 2025
MISC. CRIMINAL CASE No. 37137 of 2024
DEVESH GOLHANI
Versus
RAVI KUMAR SAHU
Appearance:
Shri Prakash Upadhyay senior advocate with Shri Hitendra Kumar
Golhani (through video conferencing) advocate for the petitioner.
Shri Lucky Jain, advocate for respondent.
Shri Apoorv Joshi, learned Amicus Curiae.
.....................................................................................................................
ORDER
This petition under Section 482 of Cr.P.C. read with Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 is filed assailing the order dated 31.07.2024 passed by learned Special Railway Magistrate, Indore in unregistered criminal case No. 1993/2024, whereby the learned Special Railway Magistrate took cognisance of offence punishable under Sections 323, 330, 166 and 166A of IPC against the petitioner and registered criminal case at RCT No. 5331/2024.
2 The exposition of facts, in brief, giving rise to present petition, is as under:-
i) The complainant Ravi and Omkar were produced in custody 2 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 before the Court of Special Railway Magistrate Indore on 09.03.2024 by Inspector Devesh Golhani (applicant) of RPF Post Dr. Ambedkar Nagar, Mhow, District Indore in connection with offence punishable under Section 3 of Railway Property (Unlawful Possession) Act, 1966. Both the complainants (accused) alleged custodial torture and ill-treatment, therefore, learned Special Railway Magistrate personally examined them in compliance with Rule 77 of the Madhya Pradesh Rules and Order (Criminal) and found marks of injuries on body of Ravi and Omkar. Both alleged that the injuries were inflicted in custody by police officials of RPF Post. The Special Railway Magistrate recorded statement of Ravi and Omkar under Section 200 of Cr.P.C. Ravi and Omkar were forwarded for medico-legal examination. The Medical Officer Dr. Mahesh Kumar (PW-3) was also examined under Section 202 of Cr.P.C.
He reported that the injuries were caused by hard and blunt objects within 24 hours to 48 hours of the examination. Dr. Saket Singh(PW-5) and Dr. Jaisna Satpalan (PW-6) were also examined. Dr. Jaisna stated that on examination of Ravi, fresh contusion caused within 24 hours of examination were found. Dr. Ved Kumari Arya (PW-4) stated to have examined Ravi and Omkar around 1.20 pm on 09.03.2024, but she did not find any injury on body of Ravi. The Special Railway Magistrate issued notice under Section 20 of The Railway Protection Force Act, 1957 to Devesh Golhani and his superior officers. Devesh Golhani submitted his written reply. The Special Railway Magistrate on consideration of material on record, reply submitted by Devesh Golhani, the protective provisions 3 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 contained under Section 20 of The Railway Protection Force Act 1957, Section 186 of Railways Act and Rule 273 of The Railways Protection Force Rules, 1987 and Section 197 of Cr.P.C. passed detailed order and directed issuance of process under Section 204 of Cr.P.C. for offence punishable under Sections 323, 330, 166 and 166A of IPC against Devesh Golhani.
3. The order dated 31.07.2024 is assailed in the present petition on following grounds:-
A. The petitioner is an enrolled member of Reserve Force under The Railway Protection Force Act, 1957 and was working as Post Commander with Western Railways at RPF Post Dr. Amebekar Nagar, Mhow, District Indore. The Special Railway Magistrate ignored the protection given to public servant under Sub-section 2 of Section 197 of the Code of Criminal Procedure, 1973. The cognisance taken without previous sanction by the appropriate Government is bad in law.
B. The Special Railway Magistrate committed error in declining the protection available to the petitioner in discharge of his official duty under Section 20 of the Railway Protection Force Act, 1957 and Rule 255 of the Railway Protection Force Rules, 1987.
C. No offence punishable under Section 330 and 166A of IPC is made out against the petitioner. The impugned order was passed without proper appreciation of the factual matrix of case.
D. The Special Railway Magistrate committed error in giving undue weightage to the statement of Dr. Jaisna Satpalan (PW-6) 4 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 which suggested that the injury is caused within 24 hours while Dr. Mahesk Kumar (PW-3) opined that the injury may be caused between 24 to 48 hours i.e. before Ravi (PW-1) was taken into custody.
Neither of the complainants had named the petitioner for causing custodial torture. The petitioner, being Post Commander, was held vicariously liable for the offence.
4. On these grounds, it is prayed that the impugned order dated 31.07.2024 be set aside and consequently criminal case bearing RCT No. 5331/2024 be quashed.
5. Learned counsel for the petitioner, in addition to the grounds mentioned in the petition, contended that the learned Special Railway Magistrate committed an error in appreciation of material facts as reflected by statement of witnesses recorded under Section 202 of Cr.P.C. The learned Special Railway Magistrate committed error in relying on the statements of Dr. Jaisna Satpalan who had not given any written report in contradistinction to the statement of Dr. Mahesh Kumar (PW-3) and Dr. Ved Kumari Arya (PW-4), who had given specific medico legal reports. The complainant Ravi did not make specific allegations against the petitioner. The petitioner is made vicariously liable for being incharge of the Post. Learned counsel further contended that the alleged act falls within the purview of discharge of official duty, therefore, sanction for prosecution by competent authority under Section 197(2) of Cr.P.C. was pre-requisite to take cognisance against the petitioner.
6. Per contra, learned counsel for the respondent and learned Amicus Curiae opposed the petition and submitted that the learned Special Railway Magistrate has considered the complaint made by accused Ravi conducted an enquiry and passed detailed and reasoned order based on 5 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 the material on record. The petition is meritless.
7. Heard both the parties and perused the record.
8. In case of Pepsi Foods Ltd. Vs Special Judicial Magistrate reported in (1998) 5 SCC 749, Para 28 reads as under:-
''Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.''
9. In case of Deepak Gaba v. State of U.P., (2023) 3 SCC 423, it was reiterated that-
30. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise the evidence brought on record. He/She may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713; Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400]; and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124.]
31. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to 6 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.
10. In case of Fiona Shrikhande Vs. State of Maharashtra and another reported in (2013) 14 SCC 44, it was held that-
"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa Vs. Veeranna Shivalingappa Konjalgi and others (1976) 3 SCC 736, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have."
11. Learned Special Railway Magistrate had personally examined the complainant/accused Ravi and found marks of injuries. Ravi was forwarded for medico legal examination. Learned Special Railway Magistrate on consideration of the medico-legal reports and opinion of medical experts concluded that the injuries of bruise, contusion and swellings were inflicted while Ravi was in custody of RPF Post Dr. Ambedkar Nagar. Learned Magistrate in the impugned order gave reasoned finding on the constitution of the ingredients of the aforestated offences. This Court while exercising inherent jurisdiction neednot indulge into minute and threadbare re-appreciation of material and the 7 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 reasoning of the Magistrate. However, another significant aspect of the matter requires consideration.
12. Section 20 of the Railway Protection Force Act, 1957 provides as under-
20. Protection of acts of members of the Force.--(1) In any suit or proceeding against any member of the Force for any act done by him in the discharge of his duties, it shall be lawful for him to plead that such act was done by him under the orders of a competent authority.
(2) Any such plea may be proved by the production of the order directing the act, and if it is so proved, the member of the Force shall thereupon be discharged from any liability in respect of the act so done by him, notwithstanding any defect in the jurisdiction of the authority which issued such order.
(3) Notwithstanding anything contained in any other law for bed time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision of this Act or the rules thereunder shall be commenced within the months after three act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding.
13 Rule 255 of the Railway Protection Force Rules, 1987 reads as under-
255. Protection being an armed force of the Union :
In any suit or proceeding against any member of the Railway Protection Force, being an armed force of the Union, he shall in addition to the provisions of section 20, be eligible for protection under-
(a) sections 45, 132 and 197 of the Code of Criminal Procedure,1973,
(b) the Judicial Officers' Protection Act, 1850 in so far as the members discharging magisterial powers and functions under section 17 are concerned.
14 Learned Special Railway Magistrate denied the protection under Rule 255 of the Railway Protection Force Rules, 1987 and Section 197 of Cr.P.C. for the reason that the act of custodial violence to complainant/accused Ravi was beyond the purview of "the acts done in discharge of official duty". Further, learned Special Railway Magistrate concluded that Devesh Golhani has acted in violation of Rule 146.8 of the 8 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 Railway Protection Force Rules, 1987, therefore, he has committed offence punishable under Section 166A of IPC. The Rule 146.8 reads as under:-
"146.8 Abuse of authority:
No member of the Force shall:-
(a) without good and sufficient cause make an arrest; or
(b) use any unnecessary violence towards any undertrial prisoners or other persons with whom he comes into contact in the execution of his duty."
15 The Supreme Court, on consideration of the law laid down in case of P.P. Unnikrishnan Vs. Puttiyottil Alikutty reported in (2000) 8 SCC 131 and Matajog Dobey Vs. H.C. Bhari reported in AIR 1956 SC 44 and other precedents regarding need of sanction for prosecution on allegations of custodial violence, in case of D. Devaraja v. Owais Sabeer Hussain reported in (2020) 7 SCC 695 laid down the guiding principles as under-
66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect 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 policeman 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.
9NEUTRAL CITATION NO. 2025:MPHC-IND:13549
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 the 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.
74. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.
16 Recently, in the case of G.C. Manjunath v. Seetaram, reported in 2025 INSC 439, the Apex court, while considering the necessity of prior sanction for prosecution, held thus-
36. In light of the aforesaid judgments, the guiding principle governing the necessity of prior sanction stands well crystallised. The pivotal inquiry is whether the impugned act is reasonably connected to the discharge of official duty. If the act is wholly unconnected or manifestly devoid of any nexus to the official functions of the public servant, the requirement of sanction is obviated. Conversely, where there exists even a reasonable link between the act complained of and the official duties of the public servant, the protective umbrella of Section 197 of the CrPC and Section 170 of the Police Act is attracted. In such cases, prior sanction assumes the character of a sine qua non, regardless of whether the public servant exceeded the scope of authority or acted 10 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 improperly while discharging his duty.
37. Turning to the case at hand, there is little doubt that the allegations levelled against the accused persons are grave in nature. Broadly classified, the accusations against the accused persons encompass the following : (1) abuse of official authority by the accused persons in allegedly implicating the complainant in fabricated criminal cases, purportedly driven by malice or vendetta; (2) physical assault and ill-treatment of the complainant by the accused persons, constituting acts of alleged police excess; (3) wrongful confinement of the complainant; and (4) criminal intimidation of the complainant.
38. In the circumstances at hand, we are of the considered opinion that the allegations levelled against the accused persons, though grave, squarely fall within the ambit of "acts done under colour of, or in excess of, such duty or authority," and "acting or purporting to act in the discharge of his official duty,"
as envisaged under Section 170 of the Police Act and Section 197 of the CrPC respectively. This Court, while adjudicating on instances of alleged police excess, has consistently held in Virupaxappa and D. Devaraja, that where a police officer, in the course of performing official duties, exceeds the bounds of such duty, the protective shield under the relevant statutory provisions continues to apply, provided there exists a reasonable nexus between the impugned act and the discharge of official functions. It has been categorically held that transgression or overstepping of authority does not, by itself, suffice to displace the statutory safeguard of requiring prior government sanction before prosecuting the public servant concerned.
39. In the present case, it is an admitted position that the complainant was declared a rowdy sheeter by the Deputy Commissioner of Police, Law and Order (West), Bengaluru City, pursuant to a request made by the Mahalakshmi Layout Police Station, Bengaluru, upon due consideration of the criminal cases registered against the complainant, vide order dated 23.08.1990. Subsequently, multiple criminal cases have been instituted against the complainant. It is in the course of the investigation of these cases that the instant allegations have been levelled against the accused persons. As noted above, any action undertaken by a public officer, even if in excess of the authority vested in them or overstepping the confines of their official duty, would nonetheless attract statutory protection, provided there exists a reasonable nexus between the act complained of and the officer's official functions.
40. In the present case, it is evident that the actions attributed to the accused persons emanate from the discharge of their official duties, specifically in connection with the investigation of criminal cases pending against the complainant. As previously observed, a mere excess or overreach in the performance of official duty does not, by itself, disentitle a public servant from the statutory protection mandated by law. The safeguard of obtaining prior sanction from the competent authority, as envisaged under Section 197 of the CrPC and Section 170 of the Police Act cannot be rendered nugatory merely because the acts alleged may have exceeded the strict bounds of official duty. In view of the foregoing, we are of the considered opinion that the learned VII Additional Chief Metropolitan Magistrate erred in taking cognisance of the 11 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 alleged offences against the accused persons without the requisite sanction for prosecution in the instant case. The absence of the necessary sanction vitiates the very initiation of criminal proceedings against the accused persons. 17 The material on record reveals that the complainant Ravi was apprehended for offence punishable under Section 3 of Railway Property (Unlawful Possession) Act, 1966 regarding theft of overhead electric copper wire of Railways. The complainant has criminal antecedents of two cases registered at crime No. 316 of 2020 and crime No. 379 of 2018 for offences punishable under Sections 325, 294 and 506 of IPC. Ravi (PW-1) in his statement recorded under section 200 of Cr.P.C. pointed towards the officials of RPF Post for custodial violence. The Post Commander Devesh Golhani was not present at the time of recording of the statement. Learned Magistrate concluded that Ravi was arrested by Inspector Devesh Golhani so he was in constructive custody of Devesh Golhani. Therefore, the Post Commander Devesh Golhani is liable for the offence punishable under Sections, 323, 330, 166 and 166A of IPC. There is no substantive material on record that the petitioner Devesh Golhani himself tortured or inflicted the injuries to the complainant Ravi. Thus, the material on record reflects that petitioner Devesh Golhani is considered vicariously liable for the injuries sustained by complainant Ravi in the custody of RPF Post Dr Ambedkar Nagar.
18 The actions attributed to the petitioner emanate from the discharge of official duties in connection with the investigation of offence against the complainant. The alleged conduct is, apparently, connected with the discharge of official duty of investigation of a registered crime. It does not relate to any act committed entirely outside the scope of the duty of the petitioner. A mere excess or overreach in the performance of official duty beyond the four corners of law, does not, by itself, disentitle 12 NEUTRAL CITATION NO. 2025:MPHC-IND:13549 petitioner from the statutory protection mandated by law. The act and conduct alleged against the petitioner comes within the purview of "discharge of official duty" in view of the law laid down in cases of D. Devaraja and G.C. Manjunath (supra). The Special Railway Magistrate committed error in proceeding against the post Commander Devesh Golhani without sanction by the appropriate government as mandated by Section 197(2) of Cr.P.C. The impugned summoning order suffers from manifest illegality.
19 In view of the above discussion, the inherent jurisdiction under Section 482 of Cr.P.C. is invoked to prevent the abuse of process of Court and to rectify the patent illegality in the process. Consequently, the impugned order dated 31.07.2024 passed in unregistered criminal case No. 1993/2024 and cognisance of offence punishable under Sections 323, 330, 166 and 166A of IPC against the petitioner at RCT No. 5331/2024, are set aside.
The MCRC No. 37137 of 2024 stands disposed off.
C.C. as per rules.
(SANJEEV S KALGAONKAR) JUDGE BDJ Digitally signed by BHUNESHWAR DATT BHUNESH DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENTCH AT INDORE, ou=HIGH COURT OF MADHYA PRADESH BENTCH AT INDORE, 2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a74a9 4a5534aed3a66d9385cfcfc201e0, WAR DATT postalCode=452001, st=MADHYA PRADESH, serialNumber=89FD75A8D0C99E05779A327974E46 BC85102826CE0604B211E4C91102B4D1269, cn=BHUNESHWAR DATT Date: 2025.05.23 15:57:59 +05'30'