Punjab-Haryana High Court
Chand Ahuja And Anr. vs Gautam K. Hada on 19 February, 1987
Equivalent citations: 1987CRILJ1328
ORDER Pritpal Singh, J.
1. A criminal complaint under Sections 385, 392 and 506, Penal Code, was filed by the respondent Gautam K. Hada against the petitioners Chand Ahuja and A.S.I. Sukhminder Singh and one other namely Lalit Ahuja (Annex. P. 3). The Chief Judicial Magistrate, Bhatinda, recorded preliminary evidence in support of the complaint produced by the complainant and thereafter, on considering the contents of the complaint as well as the preliminary evidence, passed an order dated Apr. 28,1986 summoning the petitioners and their co-accused Lalit Ahuja under Sections 385 and 506, Penal Code (Annex. P. 4). The petitioners have sought the quashing of the said complaint and the summoning order in this petition under Section 482, Criminal P.C.
2. At the very threshold the learned petitioners' counsel has contended that the learned trial Magistrate had passed the order of summoning (Annex. P. 4) without applying his mind. I find no merit in this contention. The impugned order shows that the trial Magistrate has summoned the petitioners after due consideration of the allegations contained in the complaint and the preliminary evidence produced in support thereof. The Court is, no doubt, bound to consider the contents of the complaint and the preliminary evidence, but it is not essential requirement of Section 204, Criminal P.C. to give detailed reasons for issuing process to the accused. The only essential ingredient is that the order must exhibit that the Magistrate had applied his mind before passing the order. I find support in this view from a Division Bench judgment of this Court in Krishan Murari v. Mohinder Pal (1983) 1 Recent Cri R 21. In the present case the order clearly indicates that the learned trial Court, before summoning the petitioners, had applied his mind to the contents of the complaint and the preliminary evidence.
3. The next contention of the learned petitioners' counsel is that the trial Magistrate could not take cognizance of the complaint against A.S.I. Sukhminder Singh without the prior sanction of the competent authority under Section 197, Criminal P.C. This contention too is devoid of merit. Section 197(1), Criminal P.C. envisages that no Court can take cognizance of any offence alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty without previous sanction of the Government. In the present case, therefore, these provisions could be attracted only if the offence allegedly committed by the petitioner A.S.I. Sukhminder Singh was done in the course of the discharge of his official duties as public servant.
4. The allegations contained in the impugned complaint are that the petitioner Chand Ahuja had lodged a false report with the police on Oct. 31, 1985 against the respondent's father G. R. Hada and three others under Sections 406 and 420, Penal Code. Two of them were arrested by the petitioner A.S.I. Sukhminder Singh in the presence of the respondent and he had declared that non-bailable warrants of arrest were in his possession against the remaining two accused also including the respondent's father. The petitioner Chand Ahuja at that time proposed that if a sum of Rs. 5,35,000/- was paid in cash to him by the accused and the respondent then the subject-matter of the police report could be settled. A.S.I. Sukhminder Singh supported Chand Ahuja regarding this demand and he threatened the respondent that if the money is not paid then he would arrest the respondent also. It is said that under threat of his arrest, and humiliation of his father, the respondent handed over a draft for Rs. 3,05,000/- to Chand Ahuja. According to these allegations A.S.I. Sukhminder Singh had abetted Chand Ahuja in committing the offence of extortion.
5. The learned petitioners" counsel submitted that, the alleged offence was committed by A.S.I. Sukhminder Singh during the course of discharge of his official duties. This contention is clearly unacceptable. It was indeed duty of A.S.I. Sukhminder Singh to execute warrants of arrest lawfully entrusted to him. However, abetting Chand Ahuja in extorting money from the respondent, who was not even an accused in that case, under threat of arrest cannot be deemed to be an act purported to have been done by him in discharge of his duties. As laid down in Bhagwan Prasad Srivastava v. N. P. Mishra , it is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in the dereliction of it. There must be a reasonable connection between the act and the discharge of official duty. The act must fall within the scope and range of the official duties of the public servant concerned. In the present case A.S.I. Sukhminder Singh has allegedly abetted Chand Ahuja in extortion of money from the respondent, which indeed cannot be considered to have been done in performance of his official duties. In Balbir Singh v. D. N. Kadian , police officers were alleged to have tampered with the search memo. It was held that this cannot be deemed to be an act reported to have been done in discharge of their official duties and as such the provisions of Section 197 of the Code of Criminal Procedure (for short 'the Code') did not apply.
6. The learned petitioners' counsel tried to get support from a judgment of this Court in Brijinder Singh Sidhu v. Hazuia Singh 1981 Chand LR (Cri) 154. In that case, under the orders of a Deputy Inspector General of Police, tear gas shells were burst to disperse the unruly crowd. Some shots were fired by the Deputy Inspector General of Police himself from the revolver in his hand. This had resulted in causing injuries to a number of persons, one of whom died. On this basis a criminal complaint was filed in the Court against the Deputy Inspector General of Police. In those circumstances it was held that the action was performed by the Deputy Inspector General of Police in his official duty to disperse the crowd and as such in order to prosecute him sanction under Section 197 of the Code was needed. The learned Counsel also relied upon Pawan Kumar v. Ruldu Ram (1982) 2 Chand LR (Cri) 664. In that case an Executive Officer of the Municipal Committee had charged octroi duty and penalty of more amount than it was permissible. It was held that it was a part of his duty to see as to whether the necessary octroi tax has been paid and even if he wrongly assessed the tax or imposed penalty in excess of his powers, such recovery of tax and penalty would be an act performed in the discharge of his official duty. These two judgments are wholly inapplicable to this case. They pertain to cases where the public servants had allegedly exceeded their rights in performance of their official duties. In the present case, however, it was no part of the duty of A.S.I. Sukhminder Singh to aid the petitioner Chand Ahuja in the extortion of money from the respondent and, therefore, it cannot be said that the offence allegedly committed by him was done while acting in the discharge of his official duty. The provisions of Section 197 of the Code are, therefore, not attracted to the facts of the present case.
In view of what is stated above there is no merit in this petition and it is hereby dismissed.