Bombay High Court
Ramkrishna Shankar Avhad vs Rajendra Jagannath Parikh And Another on 25 April, 1996
Equivalent citations: 1996(4)BOMCR616, 1997BOMCR(CRI)~, 1997CRILJ183
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
ORDER
1. The petitioner is a police officer who was implicated by the first respondent by filing a criminal complaint dated 12th November, 1987 before the Judicial Magistrate, First Class, Niphad. The Magistrate on perusal of the complaint and on examination of the complainant issued summons against the petitioner under Sections 325, 323, 504, 506, 341, 342 read with Section 34 of the Indian Penal Code. The complaint discloses that the petitioner was a police officer, and he was performing his duty of checking the vehicles on the road and stopped the vehicle of the first respondent. The petitioner asked the first respondent the licence for verification and on scrutiny of the licence the petitioner demanded money from the first respondent. When the first respondent refused to give money, the petitioner has manhandled the first respondent and as a result the first respondent sustained a fracture injury on his left hand.
2. Aggrieved against the issuance of summons, the petitioner filed a criminal revision application being Criminal Application No. 14 of 1988 before the Court of Sessions Judge, Nashik. The learned 3rd Additional Sessions Judge, Nashik dismissed the revision application of the petitioner. It is in that circumstances the petitioner approached this Court for quashing the proceedings under Art. 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code.
3. The Counsel for the petitioner mainly argued the previous sanction as envisaged under Section 197 of the Criminal Procedure Code has not been obtained before the complaint was taken cognizance by the Magistrate. The second contention was that even though the alleged offence has taken place on 6-5-1987 at about 8.00 p.m. the complaint was filed in the month of November 1987 beyond six months period as contemplated under Section 161 of the Bombay Police Act. In reply to this contention the learned Counsel for the first respondent submitted that the sanction under Section 197 of the Cr.P.C. is not necessary at this stage as the act complained of against the petitioner was not part of his official duty and he will not get any protection under Section 197, Cr.P.C. In order to fortify his argument he has cited the decision of the Supreme Court in the case of Bhagwan Prasad Srivastava v. N. P. Mishra, and relied on the observations made by the Supreme Court in para 4 as under.
"The narrow and pedantic construction may render it otiose for it is no part of an official duty and never can be - to commit an offence. In our view, 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 dereliction of it. One must also guard against too wide a construction because in our constitutional set up the idea equality or of universal subjection of all citizens to one law administered by the ordinary Courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles."
This decision, however, will not lend any support to the argument of the counsel, for the first respondent. The very same decision has postulated the object to be achieved for enacting the Section 197 of the Cr.P.C. The aforesaid Section has made it clear in paragraph 4 thus :
"The object and purpose underlying this section is to afford protection to public servants against frivolous vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The larger interest of efficiency of State administration demands that public servants should be free to perform their official duty fearlessly and undeterred by apprehension of their possible prosecution at the instance of private parties to whom annoyance or injury may have been caused by their legitimate acts done in the discharge of their official duty."
Before I venture upon the examination on the aforesaid observations of the Supreme Court a very important factor in the circumstances of the case has to be noted. As I pointed out earlier, admittedly the alleged offence was taken place on 8-5-1987. The first respondent including other persons committed certain offence in the public road in the presence of the police officer and they were booked and produced before the Magistrate and the Magistrate did not notice any injury on the body of the first respondent. Therefore, it is borne out from the record that a criminal case has already been charged by the petitioner against the first respondent for certain offences committed on the very same day by the first respondent. It does not stand to reason or does not conceivable for a rational thinking that why the first respondent had waited for six months to file this complaint against the petitioner. In the circumstances, the observations made by the Supreme Court is very relevant. There is no explanation in the complaint filed by the first respondent before the Magistrate the delay in filing the complaint. Moreover, there is a statutory bar in filing a complaint under Section 161 of the Bombay Police Act which fix a time limit i.e. maximum limit of six months for filing criminal complaints. In the absence of a convincing explanation for the delay in filing the complaint particularly a prosecution has already launched against the first respondent is a very relevant factor which cannot be ignored in deciding this case. In these circumstance I find that the objection raised by the petitioner in the present petition that the complaint filed against the petitioner cannot be proceeded without prior sanction under Section 197 of the Cr.P.C. is sustainable. In the result, I find no justification in issuing summons against the petitioner.
4. In the result, the writ petition is allowed. Rule made absolute in terms of prayer clauses (a) and (b). There shall be no order as to costs.
5. However, it is clarified that this order will not preclude the first respondent to proceed against the petitioner after obtaining necessary sanction under Section 197 of the Cr.P.C.
6. Petition allowed.