Allahabad High Court
Smt. Ramkali vs State Of U.P. And 5 Others on 16 September, 2020
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 74 Case :- APPLICATION U/S 482 No. - 13675 of 2020 Applicant :- Smt. Ramkali Opposite Party :- State Of U.P. And 5 Others Counsel for Applicant :- Ashok Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Ram Krishna Gautam,J.
The applicant Smt. Ramkali, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of the Court with prayer for setting aside impugned order dated 18.3.2020, passed by Special Chief Judicial Magistrate, Agra, in discharge application, under Section 197 of Cr.P.C., in Case No. 2905 of 2016, Smt. Ramkali Vs. T.V. Singh & others, under Sections 147, 148, 149, 325, 427, 452, 504, 506 IPC, P.S. Tajganj, District, Agra, as well as order dated 11.7.2019, passed by Additional Session Judge, Court No. 17, Agra, in criminal revision No. 541 of 2018 (T.V. Singh and others Vs. State of U.P. and another).
Heard learned counsel for the applicant and learned A.G.A. for the State.
Learned counsel for the applicant argued that an application moved under Section 197 of Cr.P.C. was rejected by trial Court and against this order, a criminal revision No. 541/2018 (T.V. Singh and 4 others Vs. State of U.P. and another) was filed before Court of Session Judge, Agra and it was decided by Court of Additional Session Judge, Court No. 17, Agra, wherein, impugned order was set aside and trial Court was directed for deciding application moved under Section 197 of Cr.P.C. in accordance with law.
After hearing learned counsels for both sides, impugned order has been passed on 18.3.2020 and application under Section 197 of Cr.P.C. has been allowed with this finding that as there is no sanction, hence, proceeding against T.V. Singh- S.S.I., Dheeraj Singh- S.S.I, Sri Vijay Singh- S.I., Udayveer Singh- Constable and Praveena Solanki- lady constable, P.S. Tajganj, District Agra, was discharged. It was a question of fact as to whether alleged occurrence was in exercise of public duties or it was an assault having no connection with exercise of public duty and merely by writing that, evidence under Section 244 of Cr.P.C. was not taken into consideration. It ought not to be allowed and remanded back by Court of Addl. District and Sessions Judge, Agra to learned Chief Judicial Magistrate. Hence, both of Courts below were in exercise of their jurisdiction, not vested in it. It was an abuse of process of law. Hence, for ensuring end of justice, this application has been filed with above prayer.
Learned AGA has vehemently opposed the above prayer.
From the very perusal of impugned order of learned revisional court as well as learned trial Court, it is apparent that application was moved at the very first stage after getting the bail by accused persons, for their exoneration under Section 197 of Cr.P.C. for lack of sanctio, because the alleged act was within performance of official duty by accused persons. Initially, Magistrate put this application at hold with an observation that whether it was an act under performance of official duty or an act not connected with it, is a question of fact to be decided after recording of evidence under Section 244 of Cr.P.C. Evidence under Section 244 of Cr.P.C. was recorded wherein, complainant examined herself and other witness i.e. her husband took part in evidence under Section 244 of Cr.P.C. But ultimately his evidence could not be concluded and both of them became missing i.e. neither complainant took part in her proceeding nor her husband appeared for getting himself examined. Meaning thereby, at that very stage, there was no complainant to press this proceeding and it ought to be dismissed at that juncture itself. But trial court continued to decide this application under Section 197 of Cr.P.C. Admittedly, the complainant in her statement has admitted that there had been a proceeding of attachment under Sections 82 and 83 of Cr.P.C., wherein, these accused persons have rushed her house and had perform attachment and for their conduct a criminal proceeding was lodged with regard to obstruction in the functioning of Government servants in their official duties and in that criminal case, chargesheet has been filed and case is pending. Hence, on the basis of above admission, it is apparent that the alleged act was in performance of official duties by accused persons.
As per law laid down by Apex Court by 3 Judges Bench in State Of U.P vs Paras Nath Singh (2009)6 SCC 372, "No Court shall take cognizance of such offence except with previous sanction- the very cognizance is barred by Section 197 of Cr.P.C. That is the complaint cannot be taken notice of." Meaning thereby, in case of a public servant, when the alleged offence is in performance of official duties, then before taking cognizance sanction under Section 197 of Cr.P.C. is must. Hence, Magistrate by rightful appreciation of facts and law, has passed impugned order, wherein, there is no abuse of process of law.
Accordingly, this application is being Dismissed.
Order Date :- 16.9.2020/Kamarjahan