Delhi District Court
Gurmeet Singh vs Ramesh Chawla on 1 October, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NW): ROHINI COURTS: DELHI
Crl. Revision No. 370/10
Gurmeet Singh
Assistant Commissioner of Police,
Delhi Police
Presently Posted at
South West District
.......... Revisionist
Versus
Ramesh Chawla
S/o Sh. Hans Raj Chawla
R/o D-32, Vishal Enclave,
Rajouri Garden,
New Delhi - 110027
............ Respondent
Date of Institution: 18.8.2010
Arguments heard on: 9.9.2010
Date of Decision: 1.10.2010
ORDER:
This revision petition has been filed by the revisionist Gurmeet Singh against the order dated 6.5.2010 passed by Sh. Neeraj Gaur, Ld. MM-4, Rohini summoning the revisionist in a complaint case filed by the respondent against one Rajeev Arora and the present revisionist. Briefly the facts relevant to the disposal of the present revision are as under:
CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 1 of 11 A case bearing FIR No.115/2001 under Section 506/34 Indian Penal Code read with Section 27/54/59 of Arms Act was registered on 5.3.2001 at police station Model Town on the complaint lodged by one Rajeev Arora alleging that on 28.2.2001 at about 11:45 pm near State Bank Colony, G.T. Karnal Road, Ashok Vihar, Delhi while he was going by his car, he (Rajeev Arora) was chased by Ramesh Chawla (present respondent) and one more person in a Cielo car and on the way Ramesh Chawla and his fellow passenger were making threatening signals to him with a Revolver. After the investigations it was concluded by the police that the complaint filed by Rajeev Arora was false due to cross-cases between the parties and also because at the time of the alleged incident the present revisionist was present in the office of ACP Raghubir Singh. Therefore, under these circumstances, report for cancellation of FIR and for permission to proceed against the complainant Rajeev Arora under Section 182 Indian Penal Code was filed. The said report was considered by Sh. J.P.S. Malik, the then MM (trial court) who has pleased to accept the final report and direct the cancellation of the FIR No.115/2001. The Ld. MM has also granted permission to proceed against Rajeev Arora under Section 182 Indian Penal Code vide its order dated 13.2.2002. On the basis of the aforesaid order of the Ld. MM a Kalandra was filed before the concerned court against Rajeev Arora on 15.5.2002 wherein Rajeev Arora has been summoned under Section 182 Indian Penal Case which case is pending before the court of Ld. ACMM, Rohini. Thereafter the respondent before this court has CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 2 of 11 filed the present complaint against both Rajeev Arora and the present revisionist Gurmeet Singh who at the relevant point of time was an Inspector (Station House Officer) and against one Sub Inspector Suraj Bhan both posted in police station Model Town.
Now, in the complaint before the Ld. MM the respondent before this court who is the complainant before the Ld. Trial Court has alleged an active connivance of the present revisionist Gurmeet Singh and Sub Inspector Suraj Bhan with Rajeev Arora the complainant in FIR No. 115/2001 police station Model Town (against whom the police has already filed a Kalandra under Section 182 Indian Penal Code) and on the basis of the same the Ld. Trial Court has summoned the revisionist before this court for the offences punishable under Section 182/211 read with Section 120-
It is alleged by the revisionist that the summoning order is contrary to law and facts on record and the cognizance is barred by Section 140 of the Delhi Police Act as the present prosecution has been launched after more than three months of the date of the act complained of. It is also alleged that the revisionist before this court is a public servant and cannot be prosecuted except by prior sanction under Section 197 Code of Criminal Procedure. It is further submitted that as per the provisions of Section 195 Code of Criminal Procedure the cognizance could only have been taken by the Ld. Trial Court on the complaint filed by the court and no cognizance can be taken on a complaint of a private person. It is further submitted that the Ld. Trial Court has failed to appreciate CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 3 of 11 that the cognizance has been taken after 9 years of the alleged incident and that too on the basis of non existing material as the allegations made by the complainant are only on the basis of conjectures and surmises.
Reply has not been filed by the respondent but the respondent has appeared before the court through his counsel but detailed written synopsis have been filed on behalf of the parties which I have duly perused. The revisionist before this court has reaffirmed the grounds raised by him earlier in the revision petition. However, in so far as the respondent is concerned he has alleged that the complaint has been filed by the complainant within the period of limitation and he cannot be blamed for the delay in the court process since his file had been misplaced. It is further submitted that the act of the respondent is not covered under the colour of office since any Station House Officer has no right to abuse or extend threats in order to get the matter compromised and therefore, under these circumstances no sanction under Section 197 or Section 140 of Delhi Police Act would be required. It is also alleged that that Rajeev Arora has close links with higher officials including the present revisionist and the complaint has been filed by Rajeev Arora in connivance with the present revisionist and therefore, under these circumstances Rajeev Arora lodged a false FIR in collusion with the present revisionist Gurmeet Singh.
I have considered the rival contentions of the parties and the relevant authorities placed on record by the parties which are as under:
CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 4 of 11
1. Balraj Singh Vs. State of Rajasthan & Anr. reported in 2009 (2) RCR (Criminal) 551.
2. Dadasaheb Shankar Yadav Vs. Chandrakant Yadav reported in 1998 CRL. L.J. 4747.
3. Paul Geroge Vs. State of NCT of Delhi reported in 2008 (2) RCR (Criminal) 479.
4. Choudhary Parveen Sultana Vs. State of West bengal & Anr. reported in 2009 (1) RCR (Criminal) 765.
5. State of Punjab Vs. Sunder Singh reported in 1992 Crl. L.J. 1330.
6. P.P. Unikrishnan Vs. Puttiyotti Alikutty reported in AIR 2000 Supreme Court 2952.
7. Prem Chand Goel Vs. Krishan Kumar reported in 2004 (74) DRJ 487.
8. CBI Vs. Dharampal Singh & Anr. reported in 2005 (84) DRJ 284.
9. Iqbal Singh Marwah Vs. Meenakshi Marwah reported in 2005 (2) RCR (Crl.) 178.
10. State of H.P. Vs. M.P. Gupta reported in 2004 (1) RCR (Criminal) 197.
11. George Mathew Vs. Poulose Varkey reported in 2004 (3) RCR (Criminal) 242.
12. State of Himachal Pradesh Vs. Tara Dutt reported in AIR 2000 Supreme Court 297.
CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 5 of 11
13. Sankaran Moitra Vs. Sadhna Das & Anr. reported in III (2006) SLT 168.
14. Kanshi Ram Vs. O.P. Chopra reported in 1995 Crl. L.J. 2620.
15. Prof. Sumer Chand Vs. Union of India reported in 1994 SCC (1) 64.
16. Virupaxappa Veerappa Kadampur Vs. The State of Maysore reported in 1963 SCR Supl. (2) 6.
17. Inspector Rajender Singh Saini Vs. State reported in 121 (2005) DLT 595.
18. Raghubans Dubey Vs. State of Bihar reported in 1967 SCR (2) 423.
19. M/s. Swill Ltd. Vs. State of Delhi, SLP (Crl.) No. 620/2001 I have further gone through the impugned order of the Ld. Trial Court and also the order dated 13.2.2002 passed by Sh. J.P.S. Malik the then MM accepting the cancellation report of FIR No. 115/2001, police station Model Town under Section 506/34 Indian Penal Code read with Section 27/54/59 Arms Act.
Firstly it is evident from the order of Sh. J.P.S. Malik, the then MM dated 13.2.2002 that the permission to prosecute has been given only in so far as Rajeev Arora the complainant in the FIR No.115/01 is concerned and the order of the Ld. MM is silent and no permission has been granted so far as the present revisionist is concerned. The provisions of Section 195 of the Code of CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 6 of 11 Criminal Procedure are very clear and provide that no cognizance can be taken for the offence under Section 182 [195 (1) (a) (i)] and Section 211 [195 (1) (b) (i)] except on the complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf or of some other court to which that court is subordinate (Ref: Subhash Ram Chandra Durge Vs. Annasaheb Ghat reported in 2000 (Criminal) Crl. L.J. 4774). It is a settled law that no private person can prosecute or apply for sanction, he can apply in appropriate cases move the court for vindiction of justice, which is not the case.
The purpose and object of bar against cognizance of private complaints in regard to the offences mentioned in Section 195 (1) (b) is to save accused persons from vexatious or baseless prosecution spited by feelings of vindictiveness on the part of the private complainants. Section 195 Code of Criminal Procedure is imperative and cognizance of offences mentioned in it without a proper complaint is an illegality not curable by law. (Ref: Tularam AIR 1927 Nagpur 184; Ram Samujh, AIR 1926 Oudh 485; Janki, AIR 1926 Allahabad 700; Lalchand AIR 1930 Punjab
346). It is settled law that in a case where the court is confronted with a complaint of private individual it cannot even examine the the complaint under Section 200. Owing to the character of certain offences as affecting the lawful authority of public servants or public justice, the right to prosecute under the relevant sections has been restricted and the courts are prohibited for taking cognizance CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 7 of 11 of offences mentioned therein unless & until the public servants or the courts directly concerned or their superior office or superior courts themselves make the complaint. Section 195 Code of Criminal Procedure is a limitation on the unfettered powers of a Magistrate to take cognizance under Section 190 of the offences mentioned in the section (Ref.: Govind Mehta Vs. State of Bihar reported in AIR 1971 SC 1708).
In the present case, the Ld. MM (Sh. J.P.S. Malik the then MM) had granted the permission only to prosecute Rajeev Arora and not the present revisionist Gurmeet Singh who was the Station House Officer of the concerned Station House Officer where the FIR was registered and there is no complaint in writing of that court (i.e. Sh. J.P.S. Malik the then MM) or by such officer of that court or of some other court to which that court is subordinate. This being so, I hereby hold that the order of the Ld. MM in taking cognizance against the present revisionist is bad being contrary to the existing statutory provisions of law and the mandate of Section 195 Code of Criminal Procedure.
Secondly the revisionist is a public servant and was working in his capacity as Station House Officer at the relevant time. The provisions of Section 197 Code of Criminal Procedure are very clear and it provides immunity which extends to acts done in discharge of official duty or purported to be done in such discharge and test is to ascertain if his act is such as to lie within the scope of his official duty. The object of Section 197 Code of Criminal Procedure is to protect public servants against CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 8 of 11 irresponsible, frivolous and vexatious proceedings for acts done in discharge of official duty and to ensure that no prosecution is started unless some foundation for the charge brought. The provisions of the Code of Criminal Procedure (herein after referred to as Code) are very clear and once a complaint has been filed in the police station by a private person disclosing commission of a cognizable offence, the Code mandates the Station House Officer to register an FIR. Any investigations into the allegations can be conducted only after the registration of the FIR (Chapter XII of the Code). It is only if in case after the investigations, the allegations are found to be correct that a final report in the form of charge sheet is filed or if after investigations the allegations contained in the complaint are found to be false or incorrect, that a closure report is filed (as has been done in the present case). The act of the SHO (present revisionist) in directing registration of FIR on receipt of a complaint has the backing of statutory law for which he cannot be prosecuted and such an act has been done by him in discharge of official duty and the present revisionist was acting under the colour of the office. Therefore, no cognizance could have been taken for any act or omission done by the revisionist under these circumstances except by prior sanction of the government as required under Section 197 Code of Criminal Procedure and Section 140 of Delhi Police Act. Section 197 Code of Criminal Procedure prohibits cognizance without a sanction and hence, there being no sanction the order of the Ld. MM is bad.
CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 9 of 11 Thirdly even otherwise on the face of it the cognizance taken by the Ld. MM in so far as the offence under Section 182 Indian Penal Code is concerned, is beyond the period of limitation since the maximum punishment provided for the offence under Section 182 Indian Penal Code is six months for which the period of limitation as provided under Section 468 (2) (b) Code of Criminal Procedure, is one year. The cognizance in the present case has been taken after a period of 9 years that too without condoning the delay which period is beyond the period of limitation.
Fourthly the provisions of Section 211 Indian Penal Code are made out only upon institution of criminal proceedings or making of false charge as the case may be with the intent to cause injury to any person. This institution of some criminal proceedings or making of a false charge with the intent to cause injury to that person having knowledge that there is no lawful ground for such proceedings or charge, is the pre-requisite for invoking the provisions of Section 211 Code of Criminal Procedure and that too can be done only upon the complaint of the court and not otherwise (Section 195 Code of Criminal Procedure). In the present case, no charge sheet has been filed by the police and mere lodging of an FIR cannot be a ground for taking cognizance against the Station House Officer of a police station under Section 211 Indian Penal Code more so when the investigating agency has filed the Closure Report in respect of the same. Where then, is there a question of instituting of criminal proceedings or making false charge.
CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 10 of 11 Lastly I may observe that the Code of Criminal Procedure has cast an obligation upon the courts to protect the public servants against the criminal liability for actions performed in discharge of duties and to protect them from any kind of vexatious & baseless prosecution spited by feeling of vindictiveness on the part of private individuals. Failure to ensure such a safeguard as provided under the Code adversely affects the performance of such public servants who are required to function fearlessly, independently and efficiently. The order of summoning by a Magistrate affects the valuable rights of a person so summoned and in case where such person so summoned is a senior public servant holding a responsible position, then due care should be taken by the Magistrate to ensure that such an order is not passed in a haste, since not only would such order adversely affect the rights of such public servant so summoned but also the morale of the entire organization.
In view of my aforesaid discussion, I hereby allow the revision petition of the revisionist Gurmeet Singh and set aside the order of the Ld. MM dated 6.5.2010 summoning him on the complaint of Ramesh Chawla under Sections 182/211 read with 120-B Indian Penal Code. Trial court record be sent back along with the copy of this order. Revision file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 1.10.2010 ASJ-II(NW): ROHINI
CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 11 of 11
1.10.2010
Present: Sh. Naveen Goel, advocate for the revisionist.
Respondent Ramesh Chawla in person.
Vide my separate detailed order dictated and announced in the open court, the revision is allowed. Trial court record be sent back along with the copy of this order. Revision file be consigned to Record Room.
(Dr. Kamini Lau) ASJ-II(NW)/ 1.10.2010 CR No. 370/10, Gurmeet Singh Vs. Ramesh Chawla Page No. 12 of 11