Madhya Pradesh High Court
Digvijay Singh And Ors. vs Arvind Singh Bhadoriya on 4 September, 2000
Equivalent citations: 2000(4)MPHT474
ORDER S.S. Saraf, J.
1. This criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the order dated 28-12-1999 of learned Chief Judicial Magistrate, Bhopal in Criminal Case No. 7975/99 directing that the complaint filed by the respondent be registered for offence under Sections 109 and 325, IPC against the petitioner No. 1, and under Section 325 read with Section 34, IPC against the petitioner Nos. 2 and 3.
2. The facts giving rise to this petition are : The respondent/complainant Arvind Singh Bhadoriya is alleged to be a social worker and resides in the office of Akhil Bhartiya Vidhyarthi Parishad, Immami Gate, Bhopal. It is alleged that on 3-4-1999 at about 11.30 a.m., a function to celebrate 150 years of journalism in Madhya Pradesh was being organized at Sanskriti Bhawan, Bhopal which was to be inaugurated by the Chief Minister Digvijay Singh, the petitioner No. 1. When the Chief Minister, the petitioner No. 1, rose to address the gathering, the activists of Akhil Bhartiya Vidhyarthi Parishad under the leadership of respondent Arvind Singh Bhadoriya displaying black flags and banners started shouting and raised slogans against the Madhya Pradesh Vishwa Vidhyalaya (Amendment) Act. It is further alleged by the respondent/ complainant that the Chief Minister, the petitioner No. 1, got annoyed by the above obstruction by the said activists led by the respondent. The petitioner No. 1 directed the police authorities verbally as well as by gestures to turn out the respondent. The petitioner Nos. 2 and 3 who are Dy. S.P. and Town Inspector of Police Station Tatya Tope Nagar, Bhopal respectively, were also present on the spot for maintaining public security. On the instigation of the Chief Minister, the petitioner No. 1, the police force under the leadership of the petitioner Nos. 2 and 3 caught hold of the respondent and started beating him mercilessly. The respondent was taken out of the Bhavan where he was again beaten by the petitioner Nos. 2 and 3. During the beating he was slapped by the petitioner No. 3 as a result of which his ear-drum was damaged and started bleeding. The complainant/ respondent was taken to Police Station, T.T. Nagar, Bhopal. He was, however, later released.
3. The respondent/complainant filed a criminal complaint against the petitioners in the Court of learned C.J.M., Bhopal. The learned C.J.M. held an enquiry under Sections 200 and 202 of Cr.P.C. and by order dated 28-12-1999 registered Criminal Case No. 7975/99 for offences under Sections 109 and 325, IPC against the petitioner No. 1, and under Section 325 read with Section 34, IPC against the petitioner Nos. 2 and 3. Being aggrieved with the above said order dated 28-12-1999 the present revision petition has been filed by the petitioners.
4. The learned counsel for the respondent has raised preliminary objection regarding the maintainability of this revision petition on the ground that it has been filed by the Advocate General of the State. He has contended in the above reference that under the Scheme of the Code of Criminal Procedure, all the prosecutions are deemed to have been initiated by the State. The Advocate General represents the State and therefore the Advocate General is not competent to file this criminal revision. The learned counsel for the respondent has also contended that the authorisation to the Advocate General or to his colleagues to file the criminal revision against the impugned order is defective as directions to file the criminal revision should have been given by the Governor or if not by the Governor then by an order in the name of the Governor. Since the letter does not mention that the concerned Additional Secretary of the Government has been authorised to sign the letter on behalf of the Governor, such authorisation is not sustainable in law.
5. On the other hand, the learned counsel for the petitioners has urged that the petition has not been filed by the State. He has, further, contended that this petition has been filed by the petitioners in their personal capacity and the Government has taken decision to defend the petitioner Nos. 2 and 3 at Government expenses, because at the time of alleged incident they were acting in discharge of their official duties.
6. Having given thoughtful consideration to the above contention raised by the learned counsel for the respondent, I am of the view that, this petition suffers from no infirmity as contended by the learned counsel for the respondent. Thought, it is clear that normally the prosecution lodged by a private person under certain provisions of law can be conducted by the State. However, the facts and circumstances of the present case are somewhat different. Here in this case the complainant intends to prosecute the Chief Minister of the State and the Police Officers of the State Government not in their official capacities as above, but in their personal capacity. It was also within the authority of the Government to decide to defend the petitioners at Government expenses. Accordingly the Advocate General has been directed by the Government to file the revision petition.
7. The contention of the learned counsel for the respondent that the Advocate General or his colleagues has not been authorised by the Governor or by order and in the name of the Governor and therefore the authorisation is not sustainable in law, also cannot be accepted. The rules of business made under Article 166 of the Constitution of India for the transaction of the business of the Government authorise the officers of the various rank of the department of Government to act on behalf of the Governor. The Advocate General for the State is the highest Law Officer of the State and therefore he can be authorised by a letter signed by the competent officer of the Law & Legislative Affairs Department of the Government of M.P., to act as per directions given by the Government. The procedure adopted by the Government in this behalf does not appear to be improper or incorrect. It is also noteworthy that there is nothing on record displaying the correspondence regarding the authorisation to the Advocate General by the Government. However, during the arguments the learned counsel for the respondent has shown a letter signed by the Additional Secretary of the Law Department addressed to the Advocate General to file a Criminal Petition. The said letter appears to have been issued in accordance with the provisions of the Law Department's Manual. Even otherwise, a criminal revision can be entertained suo motu by this Court.
8. Now the case on its merits is to be considered. The contention of the learned counsel for the petitioners is that there is no material on record against the petitioner Nos. 1 and 2 for the commission of alleged offence. Assuming that there is prima facie material for registering a criminal case for offence as above against the petitioner No. 3, the cognizance by the learned C.J.M. cannot be taken unless the sanction to prosecute him is accorded by the authorities under Section 197 Cr.P.C. On the other hand, learned counsel for the respondent has urged that there is no necessity of sanction before the cognizance is taken by the C.J.M. It was submitted that there is prima facie sufficient material for registering the criminal case, for offence as above, against the petitioners.
9. A careful scrutiny of the record of the Lower Court reveals that the petitioner No. 1 being the Chief Minister was the Chief Guest of the function. It is also apparent that when he was about to address the gathering, the respondent started shouting slogans and also displaying black flags and banners in protest against the Chief Minister. It is also clear from the record that the Chief Minister, petitioner No. 1, at the first instance appealed the agitating activists including the respondent to keep peace and to take seats, but when they continued to shout slogans they were allegedly removed from the spot by the police force including the petitioner Nos. 2 and 3.
10. The respondent/complainant Arvind Singh Bhadoriya (P.W. 1) in his statement recorded under Section 200, Cr.P.C. has stated that he and his companions visited the place where the said function was being held to stage demonstration and to shout slogans against the Madhya Pradesh Vishwa Vidhyalaya (Amendment) Act. Prasanna Kumar Sharma (P.W. 2) has also stated that when the complainant and his companions started shouting, the Chief Minister told them to keep peace and to be seated whereupon the respondent shouted at the Chief Minister, to answer the questions posed by him in the pamphlets distributed by him. The facts stated in the FIR and the statements recorded under Sections 200 and 202, Cr.P.C. clearly indicate that the respondent and his companions took opportunity to shout slogans against the Chief Minister, on political grounds, and the Chief Minister at the first instance appealed to them to keep cool and requested the petitioners to occupy their seats. It is alleged that when the respondent paid no heed to the appeal of the Chief Minister, the Chief Minister asked the police to remove them from the Bhavan and it is further alleged by the respondent/complainant that the Security Officers were directed orally and by gestures to assault the respondent and his companions.
11. The facts as above, disclosed from the complaint and the statements recorded under Sections 200 and 202, Cr.P.C. clearly indicate that the criminal proceedings against the Chief Minister has been attended with oblique and an ulterior motive for wreaking vengeance on him, as was urged by the learned counsel for the petitioners.
12. The learned C.J.M. appears to have registered the complaint not only on the basis of the above facts disclosed by the complainant, but also on the ground that the petitioner No. 1 holding the office of Chief Minister could exercise his influence and therefore had he so intended and desired, he could have restrained the police officers from beating the respondent. The learned Magistrate has, further, observed that by not restraining the police including the petitioner Nos. 2 and 3 from beating the respondent, the petitioner No. 1 not only displayed lack of human consideration, but he also abstained from doing his legal duty, as a result of which the alleged offence was committed by the petitioner Nos. 2 and 3.
13. Having given thoughtful consideration to the above reasoning of the learned Magistrate, I find myself unable to accept it. Admittedly the police officers were deputed for maintaining public order and since the respondent was obstructing public order, it was incumbent and in fact their duty to act promptly, to maintain public order. It was not for the Chief Minister to specifically ask the police officers to maintain public order. The facts given in the complaint and the statements recorded under Sections 200 and 202, Cr.P.C. that the Chief Minister asked the police officers to beat the respondent and his other companions are inherently improbable. A prudent person can not accept such far fetched allegations and make them a ground for proceeding against the petitioner No. 1 for offences under Sections 109 and 325, IPC. It does not appear that the Chief Minister, the petitioner No. 1, either instigated or conspired in beating the respondent, or intentionally aided the petitioner Nos. 2 and 3 in doing so. The omission or commission attributed to the petitioner No. 1 appear either as a piece of imagination or a deliberate step to gain political mileage, on the part of respondent.
14. Therefore, it cannot be said that the petitioner No. 1 abetted the commission of alleged offence under Section 325, IPC by the petitioner Nos. 2 and 3. Even if it is to be believed that the police officers were directed by the Chief Minister to remove slogan shouters and to maintain public order, that by itself would not raise an inference that the Chief Minister instigated the commission of the alleged offence of beating the respondent. The Chief Minister was not required to direct the police officers deputed on duty to maintain public order because it was the duty of these officers to do so. It is, thus, apparent that the alleged act of beating of the respondent by the police officers was not committed due to the abetment by the petitioner No. 1, the Chief Minister.
15. In view of the above, it cannot be inferred that the offence allegedly committed by the petitioner Nos. 2 and 3 was abetted by the petitioner No. 1. Therefore, there appears to be no material to proceed against the petitioner No. 1 for offence under Sections 109 and 325, IPC.
16. So far as the petitioner Nos. 2 and 3 are concerned, the facts given in the FIR and other documents clearly indicate that there is no material for proceeding against the petitioner No. 2. The medical expert Dr. H.N. Sahu (P.W. 4) has categorically stated in his statement that the respondent/complainant had informed him that he was slapped by the petitioner No. 3 and consequently the left ear-drum was torn. A perusal of the record of the Lower Court clearly reveals that no active role in the alleged beating was attributed to the petitioner No. 2. Hence, he cannot be proceeded against for commission of the alleged offence under Section 325 of IPC.
17. However, there is prima facie material on record to establish that the respondent was slapped by the petitioner No. 3 and consequently the ear-drum of the left ear of the respondent was torn and the blood started oozing out. It is the settled law that the standard of proof normally adhered to at the stage of final hearing is not to be applied at the stage of registering a criminal case against the accused. Since there is prima facie material on record for registering a case against the petitioner No. 3, the impugned order so far as it relates to the registration of the criminal case for offence under Section 325, IPC suffers from no infirmity and therefore needs no interference by this Court.
18. However, it is also clear that when the respondent was slapped by the petitioner No. 3, he was deputed there to maintain the public order. Therefore, his action as above was apparently in discharge of his official duty, though he may have over stepped his functions. Under the circumstances, sanction under Section 197, Cr.P.C. is necessary before cognizance is taken against him. I am fortified in the above view by decisions of Supreme Court in Amrik Singh v. State of Pepsu, AIR 1955 SC 309 and in Somchand Sanghvi v. Bibhuti Bhushan Chakravarty, AIR 1965 SC 588. I am further fortified by the decision of this Court in Awtar Singh Dharam Singh v. State of M.P., 1993 MPLJ 492, the decision of Gujarat High Court in Karnalsingh Gill and Anr. v. State of Gujarat and Anr., 1988 Cr.L.J. 100, and the decision of Patna High Court in Pancham Lal v. Dadan Singh, 1979 Cr.L.J. 1018.
19. The learned counsel for the respondent has contended that the respondent was not committing any crime as he was simply shouting slogans and displaying black flags and banners against the Chief Minister which was his fundamental right. He has further contended that by raising questions before the Chief Minister and by asking the Chief Minister to give reply is not uncommon in democracy and therefore it was none of the official duty of the police officers to remove and to beat the respondent and therefore the sanction under Section 197, Cr.P.C. is not necessary.
20. Having given thoughtful consideration to the above contention of the learned counsel for the respondent, I am of the view that though it might be the fundamental right of the respondent to ask questions and raise slogans but it was none of his fundamental right to obstruct the other citizens from addressing the gathering. It was also the fundamental right of the petitioner No. 1 to address the gathering. The perusal of the record of the Lower Court clearly establishes that the petitioner No. 1 was compelled by the respondent to give answer to his queries and unless the answers were given the petitioner No. 1 would not be permitted to address the gathering. This action of the respondent does not come within the ambit of the fundamental right of a citizen. A citizen has no fundamental right to obstruct others in the exercise of their fundamental right. In view of above, the contention of the learned counsel for the respondent that the action of the respondent did not call for interference by the police officers deputed to maintain public order cannot be accepted. Consequently the submission that there was no necessity to accord sanction for their prosecution also deserves to be rejected.
21. In view of above, it is clear that there was no justification to register the complaint against the petitioner Nos. 1 and 2 for the offences as above. If the criminal proceeding against them is not quashed, they would be subjected to harassment and shall have to unnecessarily bear with the proceedings of prosecution which would amount to an abuse of the process of the Court. Under the circumstances, the quashing of the proceedings against them is necessary in the ends of justice. So far as the question of registering criminal proceedings against petitioner No. 3 is concerned, there appears to be prima facie sufficient material to proceed against him. However, before cognizance is taken against him, the respondent will have to obtain sanction under Section 197, Cr.P.C. from the authorities.
22. For the reasons stated above, the petition is partly allowed. The impugned order so far as it directs registration of criminal complaint against the petitioner Nos. 1 and 2, is quashed. However, the criminal complaint against the petitioner No. 3 shall continue subject to the respondent obtaining valid sanction from the competent authority. The respondent shall be given reasonable opportunity to obtain sanction to prosecute the petitioner No. 3 for the said offence by the learned C.J.M., Bhopal. Till then, the complaint shall be kept in abeyance. If no such order is produced by the respondent within reasonable period, at the discretion of the learned C.J.M., the complaint shall stand dismissed with an opportunity to file fresh complaint after the sanction to prosecute the petitioner No. 3 is accorded.