Allahabad High Court
Shyam Babu vs State Of U.P. And Another on 1 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1296
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 17.7.2019 Judgment delivered on 1.08.2019 Court No. - 65 Case :- APPLICATION U/S 482 No. - 4706 of 2013 Applicant :- Shyam Babu Opposite Party :- State Of U.P. And Another Counsel for Applicant :- I.K. Chaturvedi Counsel for Opposite Party :- Govt. Advocate,Anjani Kumar Tripathi,Marut Kumar Tripathi,Maruti Kumar Tripathi Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri I.K. Chaturvedi, learned counsel for the applicant, Sri Marut Kumar Tripathi, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State.
2. This application has been moved seeking quashing of the order dated 28/07/2012 passed by the Civil Judge Junior Division/Judicial Magistrate, Ghazipur whereby he has dismissed application 21 B of the applicant which was moved for discharge under sections 245 (2) of the Criminal Procedure Code.
3. The submission is that the applicant has been summoned under sections 218, 323, 342, 392, 504 and 506 IPC in criminal case no. 304 of 2011 Abhishek vs Shyam Babu, police station Bhurkura, District Ghazipur despite the fact that no offence is made out against the applicant and the same is nothing but an abuse of process of court. The applicant was posted at police station, Dullapur, District Ghazipur as station officer on the date of occurrence i.e. on 19/04/2011 and it is alleged that at 12:00 PM (noon) the applicant lodged an F.I.R. against the opposite party no. 2 and his father on 19/04/2011 at 12.50 p.m. registered as crime no. 326 of 2011 under sections 332, 353 323, 307, 504 and 506 IPC, sec. 7 Criminal Law Amendment Act and sec. 3 (II) (V) SC /ST Act at PS Bhurkura. At that time the applicant was discharging his official duty and even then he was subjected to Marpit by the opposite party no. 2 and his father and was examined by Doctor on 19/04/2011 at 3 PM, medical examination report is annexed as annexure 2. During investigation the statement of applicant was recorded by the investigating officer, who corroborated the F.I.R. version. The opposite party no. 2 and his father were taken into custody by the applicant and other police personnel along with licensed SBBL gun bearing no. 24630 of 2001 with 16 live cartridges of 12 bore and both the accused were sent to jail. During investigation, the investigating officer recorded the statements of formal witnesses, Virendra Dev, Shri Jitendra Singh Lekhpal and Satendra Kumar, station officer police station Bhurkura, who all corroborated the version of the first informant. The investigating officer further recorded the statement of Rajesh Pandey, SHO, PS Sadiyabad, District Ghazipur, Jagdamba Singh, Tehsildar Jakhania, Jitendra Singh, Sub Divisional Magistrate Jakhania, Shiv Murti, Block Development Officer Jakhania, Avdhesh, Assistant Basic Education Officer, Jakhania, Paltoo Ram, Station Officer PS, Sadat and Rahul Mishra, CO Jakhania, who all supported the prosecution story. Station officer Satendra Kumar also prepared a recovery memo of the SBBL gun of opposite party no. 2. The said licensed gun was recovered from the possession of opposite party no. 2 from the spot itself and after recording the statement of independent witnesses, who were responsible officers, investigating officer submitted charge- sheet against the opposite party no. 2 and Bhoopendra Pratap Singh under the above-mentioned sections i.e. 332, 353, 504, 506, 307 IPC and sec. 7 Criminal Law Amendment Act and sec. 3 (II) (V) SC/ST Act. After the accused i.e. O.P. No. 2 and his father Bhupendra Singh were taken into custody, both were sent for medical examination and were medically examined by Doctor on 19/04/2011 itself, but no injury was found. O P no. 2 Abhishek Tomar is a practicing advocate at Tehsil Saidpur and after being released on bail on 25/04/2011, under the undue pressure of the advocates, he succeeded in obtaining false medical report from District Hospital Ghazipur due to ulterior motive and malafide intention and thereafter he filed a complaint before the Chief Judicial Magistrate, Ghazipur on 11/05/2011 as a counterblast with false allegations. The medical examination report of opposite party no. 2 is said to have been prepared on 27/04/2011 at 2:30 PM by the Medical Officer, District hospital, Ghazipur, in which Doctor has noted scabbed abrasion on his person whereas in his initial medical examination report no injury was found. No medical examination report of Bhoopendra Pratap Singh, father of O.P. No. 2 has been filed. The statement of the opposite party no. 2 is said to have been recorded under sections 200 Cr. P.C. whereas the statements of Nirbhay Kumar Singh and Bhoopendra Pratap Singh are said to have been recorded under sections 202 Cr. P.C. and on the basis of their statements the applicant has been wrongly summoned. Against the order dated 12/10/2011 passed by the Judicial Magistrate - I, Ghazipur Criminal Miscellaneous Application under sections 482 Cr.P.C. No. being 13736 of 2012 was filed before this court which was disposed of vide judgment dated 24/07/2012 directing to move an application under sections 245 (2) Cr. P.C. for discharge. Thereafter the said application was moved and vide impugned order the same has been dismissed, which has been challenged in the present proceedings. Further it is submitted that no prior sanction under sections 197 Cr. P.C. has been obtained against the applicant which is a mandatory provision and yet summoning order has been passed. The applicant has been arbitrarily summoned because on Tahsil Diwas he was performing official duty, therefore he was protected under the provisions of section 197 Cr. P.C.. The present proceedings are nothing but malicious prosecution of the applicant which needs to be quashed.
4. The learned counsel for the applicant has placed reliance upon Om Prakash and others vs State of Jharkhand and others, 2012 (12) SCC 72, in which in a fake encounter case, it was held that test as to whether public servant was acting or purporting to act in discharge of his official duties necessitating sanction to prosecute to be obtained, the real test would be as to whether the act complained of was directly connected with his official duties; or whether it done in discharge of his duties; or whether it was so integrally connected with or attached to his office as to be inseparable from it, in such conditions the protection under sections 197 Cr.P.C. would be available. But if the act is merely a cloak for doing his official duty and the same is not reasonably connected with discharge of his duty, he would not get protection of the said Sec.. Whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer, a public servant was acting in performance of his official duty and is entitled to protection given under section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the concerned public servant at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. In order to exclude the possibility of any misunderstanding, it was clear that the legal discussion on the requirement of sanction at the very threshold is based on the finding that the present is not a case where the police may be held guilty of killing Munna Singh in cold blood in a fake encounter. In a case where on facts it may appear to the court that the person was killed by the police in a stage-managed encounter, the position may be completely different. In this case, the appellant police personnel , accused of offences under sections 302 and 203 read with sec. 120 - B IPC, were alleged to have killed complainant's son in fake encounter. Death of four criminals had taken place in firing by police party which was preceded by an attack on police personnel. The police had to launch a counter-attack to save themselves and also to nab the criminals, which was the legal duty. The weapons lying at the scene of occurrence and their past records established that criminals concerned had taken to life of crime. There was no reason to doubt the veracity of seizure memo because it was difficult for police to concoct such a scene and plant such weapons. The CID fully investigated the case and submitted its report stating that it was a genuine encounter. National Human Rights Commission also came to the conclusion that this was not a fake encounter. On the independent examination of relevant documents, like FIR, post-mortem notes, inquest report, seizure memo and extracts of official report, it was held that the present case was not a case of false encounter. Therefore, the complainant's case that the police were guilty of killing deceased in cold blood in a fake encounter was rejected and it was held that the police personnel concerned in the present case must get protection under section 197 Cr. P.C. because the act complained of, were so integrally connected with the order attached to the office and official duties as to be inseparable from them.
5. The other case which is relied upon by the learned counsel for the applicant is D T Virupakshappa vs C Subash, 2015 (12) SCC 231, in which the appellant police officer was accused in a private complaint filed by respondent complainant before Magistrate alleging that appellant assaulted and detained complainant in police station for some time to get a confession from him that he was involved in a murder case. The Magistrate took cognizance, registered the case and issued summons to the appellant under sections 323, 324, 326 , 341, 114 and 506 read with sections 149 IPC. The High Court declined to interfere under sections 482 Cr. P.C. proceedings. It was held that it was evident that the whole allegation was of police excesses in connection with investigation of a criminal case. The said offence if committed was reasonably connected with the performance of the official duty of appellant. The Magistrate could not opt for taking cognizance of the case without previous sanction of the State Government. The proceedings were quashed by the Supreme Court.
6. From the side of the opposite party no. 2/complainant of the case, in rebuttal, in counter affidavit it has been stated that there is land dispute between opposite party no. 2's father namely, Bhoopendra Pratap Singh and one Ramesh Singh in village Hardspur Kala, PS Dullahpur, District Ghazipur, for which Civil Suit is pending before the concerned court because of which Ramesh Singh used to have enmity with the opposite party no. 2's father. Ramesh Singh had threatened many times to kill the father of opposite party no. 2 due to which he had made a complaint against him before Station Officer, Dullahpur, but no action was taken, rather in connivance with Ramesh Singh, accused Shyam Babu being SO of the said PS, forcibly cut mustard crop of the father of opposite party no. 2 and when his father approached SDM on ''Tahsil Diwas' on 10/04/2011, applicant at that time was sitting there and when he read the complaint he became annoyed and started abusing father of O.P. No. 2 along with some other constables and began beating him with kicks and fists before the Tehsil officers. The applicant also opened service revolver and began to threaten to kill opposite party no. 2 and his father and forcibly snatched away money and documents by force. Thereafter the applicant arbitrarily arrested and maliciously lodged an F.I.R. on 19/04/2011 against O.P. No. 2 and his father being crime no. 326 of 2011 under sections 332, 353, 504, 506 and 307 IPC, 7 Criminal Law Amendment Act and sections 3 (2) V of SC/ST Act at PS Bhudkuda, District Ghazipur. After arrest O.P. No. 2 and his father, applicant Shyam Babu with some constables went to his house and took out his licensed gun and prepared false recovery memo and challaned illegally. The O. P. No. 2 and his father had insisted many times for the medical examination to be conducted but the same could not be conducted. After getting themselves bailed out both of them got their medical examination conducted in District Hospital Ghazipur. The applicant is a cruel police inspector and is a habitual offender who indulges in illegal activities. One Shambu Kushwaha had also died in jail due to having been beaten badly by the applicant and his such kind of illegal acts have also been published in newspapers. A case crime no. 379 of 2011 under sections 302 and 504 IPC was registered against the applicant at PS Dildar Nagar, Ghazipur. The offence under the above-mentioned sections in the present case are fully made out. The first information report dated 19/04/2011 was lodged by the applicant against opposite party no. 2 and his father maliciously only to exert pressure upon them so that they may not get the F.I.R. lodged against him. In fact no such occurrence had taken place as was mentioned in the F.I.R. dated 19/04/2011. The learned Magistrate has rightly rejected the application of the applicant under sections 245 (2) of Cr. P.C.. There is no requirement for obtaining sanction under sections 197 Cr. P.C. as the offence has not been committed in discharge of official duty by the applicant.
7. From the side of the applicant rejoinder affidavit has also been filed in which it has been stated that the F.I.R. of crime no. 379 of 2011 was registered against the applicant at the behest of local politicians, in which investigation was conducted by higher authorities and after the investigation the investigating officer concluded that the applicant was innocent and was falsely implicated due to ulterior and malafide intention. The said F.I.R. does not have any relevance in the present case. A final report was submitted in the said investigation, which was accepted by the Magistrate.
8. After having heard both the counsel as well as having taken into consideration the respective pleadings it emerges that as per the applicant the present case has been launched against him by way of counterblast due to case crime no. 326 of 2011 having been registered under sections 332, 353, 323, 307, 504 and 506 IPC and Section 7 Criminal Law Amendment Act along with section 3 (II) V of SC/ST Act by the applicant against O.P. No. 2, in which the opposite party no. 2 and his father were arrested, details of which have been given above. No beating, abusing or threatening to life was given by the applicant to the opposite party no. 2 or his father as alleged. There was no injury found on the body of either of them, which belies the prosecution case. On the other hand from the side of opposite party no. 2 it is argued that he and his father had been falsely implicated by the applicant because of the land dispute being there between the father of O.P. No. 2 and one Ramesh Kumar of the village Hardaspur Kala within the jurisdiction of PS Dullahpur and District Ghazipur which led to enmity between them and because of that the father of O.P. No. 2 had made a complaint against Ramesh Singh at the police station Dullahpur but no action was taken because of connivance of the applicant, who was SO at the said police station, with Ramesh Singh, because of this O.P. No. 2's father gave an application to the applicant to lodge F.I.R. which was not registered and therefore the father of O.P. No. 2 feeling aggrieved approached SDM at Tahsil Diwas on 10/04/2011 and made a complaint against the applicant which annoyed the applicant who had beaten up O.P. No. 2 and his father and both of them were put in jail which deprived them from getting themselves medically examined and could get the medical examination done only when they were bailed out. Thereafter complaint was lodged against the applicant by O.P. No. 2 on which the applicant has been summoned under the above-mentioned sections to face trial. The prosecution sanction under 197 Cr. P.C. has not been obtained for initiating prosecution against the applicant because the said act of the applicant was not performed in his official duty which resulted in beating the opposite party no. 2 and his father.
9. It appears from the facts of this case that the applicant, being the investigating officer of crime no. 326 of 2011 mentioned above had to carry out the investigation and take proceedings against the opposite party no. 2 and his father, feeling aggrieved with the same a counter case appears to have been lodged from the side of the opposite party no. 2 against the applicant. It is unusual that despite the beating having been done of O.P. No. 2 and his son, no injuries are found to have been caused to both of them in their medical examination reports. Therefore it could not be ruled out that some action would have been taken by the applicant against O.P. No. 2 and his father on lodging of F.I.R. against them but the same appears to have been resorted to in order to maintain law and order. It cannot be held that beating would come under the purview of official duty of applicant, but no injuries are found in the present case on the persons of opposite party no. 2 and his father. The action on the part of O.P. No. 2 and his father could be retaliatory also. The applicant being a police officer and a govt. servant should be given screen of the provision of 197 Cr.P.C. so that he could act without fear or favour. If such kind of protection is not given the very object of Section 197 Cr.P.C. would stand frustrated. The applicant's learned counsel has relied upon the above cited law in which the same principle is followed. Therefore, I am of the opinion that before prosecuting the applicant the sanction ought to have been taken under sections 197 of the Criminal Procedure Code. Hence, in view of above, the present proceedings need to be quashed for want of prosecution sanction with the direction that in case the O.P. No. 2 wants to prosecute the applicant he would be at liberty to seek sanction for his prosecution first before proceeding further in this regard. Accordingly this application deserves to be allowed and the impugned order stands quashed.
Order date:- 1.08.2019 A.P. Pandey