Allahabad High Court
Anil Kumar Pandey vs State Of U.P. And Another on 30 January, 2024
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:16543 RESERVED Court No. - 9 Case :- CRIMINAL REVISION No. - 3407 of 2023 Revisionist :- Anil Kumar Pandey Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ankit Prakash Counsel for Opposite Party :- G.A.,Sharad Srivastava Hon'ble Vipin Chandra Dixit,J.
1. This criminal revision has been filed by the revisionist against the order dated 20.05.2023, passed by Additional District and Session Judge, Court No. 3, Ghazipur, in Sessions Trial No. 323 of 2012 (State vs. Anil Kumar Pandey & Others) by which the application filed by revisionist (Paper No. 231-Ba), under Sections 197 r/w 216(5) Cr.P.C. was rejected and application (232-Ba) for summoning prosecution witness Hanuman Prasad for further cross-examination after change of charges was allowed.
2. Heard Sri Ankit Prakash, learned counsel for the revisionist, learned A.G.A. for the State-opposite party no. 1, Sri Sharad Srivastava, learned counsel appearing on behalf of opposite party no. 2 and perused the record.
3. Brief facts of the case are that the opposite party no. 2 has filed a complaint against the revisionist and 23 other accused persons with the allegation that the father-in-law of the complainant was owner of Arazi No. 341, area 0-7-13 and his name was recorded in the revenue record. There was some dispute regarding possessions of land with the other private accused persons. On 21.10.2007, the accused persons along with revisionist have entered into the house of complainant and abuses and beaten the complainant and his husband namely Hanumaan Yadav and tried to dispossess the complainant and to give possession of land to Prabhu Yadav (co-accused) forcibly. It is further alleged that the revisionist, who was Station House Officer of concerned police station with other police personnel was also accompanying with the accused persons. Several house hold properties were damaged by the accused persons and one golden ring and colour TV were also looted by the accused persons. The report of the complainant was not registered by the local police and as such, the complaint was filed by the complainant to register the case against the accused persons under Sections 147, 148, 149, 392, 452, 504 and 506 I.P.C.
4. The complainant herself was appeared before the learned Magistrate and her statement was recorded under Section 200 Cr.P.C. and the statement of witnesses produced by the complainant were recorded under Section 202 Cr.P.C. Learned Magistrate after prima-facie satisfaction that the accused persons have committed crime as alleged in the complaint had summoned the accused persons.
5. During pendency of compliant case, the revisionist and five other police personnel have moved an application under Section 197 r/w 216(5) Cr.P.C. (Paper No. 231-Ba) with the averment that a first information report was lodged in Police Station Naunhara, which was registered as Case Crime No. 991 of 2007 in respect of incident dated 21.10.2007 lodged by Ajit Kumar Yadav against Hanumaan Yadav, who is husband of complainant and other accused persons. The revisionist and other police personnel were visited to the place of incident for investigation in discharge of their official duties but they have been assaulted by the husband of complainant and other accused persons and the revisionist has registered another case against the husband of complainant and other accused persons which was registered as Case Crime No. 991A of 2007. The complaint has been filed by the complainant on altogether incorrect facts only to create pressure upon the police personnel of concerned police station.
6. It is further pleaded by the revisionist that the revisionist and other police personnel were visited at the place of incident in discharging of their official duties and as such, no prosecution can be initiated without prior sanction of the State Government.
7. The application filed by revisionist under Section 197 r/w 216(5) Cr.P.C. was rejected by the trial court by order dated 20.05.2023, which is impugned in the present criminal revision.
8. It is submitted by learned counsel for the revisionist that the revisionist was posted as Station House Officer in Police Station Naunhara, District Ghazipur at the relevant time and he visited the house of complainant along with other police personnel for investigating Case Crime No. 991 of 2007 and the act of revisionist and other police personnel were in discharge of their official duties. It is further submitted that from the bare perusal of complaint itself, it transpires that the revisionist in discharging of his official duties has visited the house of the complainant and as such, without taking prior permission as required under Section 197 r/w 216(5) Cr.P.C., no prosecution against the revisionist can be lodged.
9. Learned counsel for the revisionist has placed reliance on the judgment of Hon'ble Apex Court in the case of Indra Devi vs. State of Rajasthan & Anr., Criminal Appeal No. 593 of 2021 along with State of Rajasthan vs. Yogesh Acharya, Criminal Appeal No. 594 of 2021. The relevant paragraph no. 9 is quoted herein below :-
"9. We have given our thought to the submissions of learned counsel for the parties. Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subramanian Swamy Vs. Manmohan Singh, (2012) 3 SCC 64]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order 2 (1979) 4 SCC 177 3 (1993) 3 SCC 339 4 (2012) 3 SCC 64 to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao, (1993) 3 SCC 339]. The real question, therefore, is whether the act committed is directly concerned with the official duty."
10. It is thus submitted that the revisionist who was posted as Station House Officer of concerned police station and the act as alleged in the complaint is in discharging of his official duty and as such, in absence of sanction as reacquired under Section 197 r/w 216(5) Cr.P.C., no court has got jurisdiction to take cognizance against the revisionist. The court below has committed gross illegality in rejecting the application filed by revisionist under Section 197 r/w 216(5) Cr.P.C.
11. On the other hand, learned counsel appearing on behalf of complainant/opposite party no. 2 submits that the revisionist has not come with clean hands and the earlier applications filed by revisionist under Section 197 Cr.P.C. and orders passed thereon have not been disclosed in the application (Paper No. 231-Ba) filed under Section 197 r/w 216(5) Cr.P.C. The revisionist without disclosing the earlier applications filed under Section 197 Cr.P.C. has filed the present application on the same ground and for same relief, by concealing the material facts. The photocopy of order dated 28.07.2012, passed by revisional court has been produced, which is taken on record. The application under Section 197 Cr.P.C. (Paper No. 134-Ba) was rejected by the trial court vide order dated 08.11.2011. Another application (Paper No. 152-Ba) filed by revisionist under Section 197 Cr.P.C. was again rejected on 16.07.2012. Criminal Revision No. 192 of 2012 filed against order dated 16.07.2012 was also dismissed by Sessions Judge, vide order dated 28.07.2012. The revisionist has not challenged the orders dated 08.11.2011, 16.07.2012 and 28.07.2012 before the higher court and as such, that has become final. It is further submitted that only to delay the disposal of the case, the revisionist has filed present application under Section 197 r/w 216(5) Cr.P.C. The revisionist has not come with clean hands before this Court as the orders dated 08.11.2011, 16.07.2012 and 28.07.2012 have not been annexed with the present criminal revision. Since, the application filed by revisionist have already been dismissed twice by the learned Magistrate and criminal revision against said order was also dismissed by the sessions judge, the learned trial court has rightly rejected the application for the same relief filed by the revisionist by order dated 20.05.2023.
12. Lastly, it is submitted that the order impugned dated 20.05.2023, passed by learned trial court is in accordance with law after considering the entire evidence and materials which are available on record and there is no illegality or irregularity in any manner. No ground for interference is made out and the criminal revision preferred by the revisionist is liable to be dismissed.
13. Considered the rival submissions of learned counsel for the parties and perused the record.
14. From the bare perusal of impugned order dated 20.05.2023, it transpires that the revisionist has already filed application (Paper No. 134-Ba) before the trial court under Section 197 Cr.P.C. with the prayer that since the act of the revisionist is in discharging of his official duty, the court cannot take cognizance without prior sanction of the competent authority, was rejected vide order dated 08.11.2011. The revisionist again has filed application on the same ground which is paper no. 152B, was also rejected by the trial court vide order dated 16.07.2012. The Criminal Revision no. 192 of 2012 filed by revisionist and other police personnel against the order dated 16.07.2012 was also dismissed by the learned sessions judge vide order dated 28.07.2012. The present application (Paper No. 231-Ba) under Section 197 r/w 216(5) Cr.P.C. was filed by the revisionist by concealing the orders dated 28.11.2011, 16.07.2012 and 28.07.2012 and even in the present criminal revision, the aforesaid orders have not been annexed, as such, the revisionist has not come with clean hands. The Hon'ble Apex Court in the case of Bhaskar Laxman Jadhav and Others vs. Karamveer Kakasaheb Wagh Education Society and Others reported in (2013) 11 SCC 531 has held that if the litigant does not come to the court with clean hands, he is not entitled for any relief. Paragraphs 44, 46 and 47 are reproduced herein below :-
"44. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality.
46. More recently, in Ramjas Foundation vs. Union of India, (2010) 14 SCC 38 the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said:
"The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case."
47. A mere reference to the order dated 2nd May 2003, en passant, in the order dated 24th July 2006 does not serve the requirement of disclosure. It is not for the Court to look into every word of the pleadings, documents and annexures to fish out a fact. It is for the litigant to come up-front and clean with all material facts and then, on the basis of the submissions made by learned counsel, leave it to the Court to determine whether or not a particular fact is relevant for arriving at a decision. Unfortunately, the petitioners have not done this and must suffer the consequence thereof."
15. The finding has already been recorded by the learned revisional court while dismissing the Criminal Revision No. 192 of 2012 by order dated 16.07.2012 that the act of the revisionist is not seems to be done in discharging of his official duty. Since, both the applications Paper Nos. 134B and 152B were rejected by the trial court and the revision preferred by the revisionist was also dismissed by the lower revisional court and the revisionist has not challenged the aforesaid orders and that has become final. The present criminal revision filed by the revisionist contains 834 pages, but the orders dated 08.11.2011, 16.07.2012 and 28.07.2012 have not been annexed with this revision by concealing the material facts and tried to mislead this Court. The revisionist has not approach to this Court with clean hands and as such is not entitled for any relief.
16. The law has been settled by Hon'ble Apex Court that if the litigant does not approach to the court with clean hands, is not entitled to any relief. In the present case, the revisionist has filed application under Sections 197 r/w 216(5) Cr.P.C. (Paper No. 231-Ba) without disclosing the faith of earlier applications filed for the same relief and suppressed the material facts, is not entitled for any relief.
17. The criminal revision has no force and is accordingly, dismissed.
18. Interim order, if any, stands discharged.
Order Date :- 30.01.2024 sailesh