Pramod Sharma vs Dileep Alias Vakeel Shivhare on 26 June, 2021

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Madhya Pradesh High Court

Pramod Sharma vs Dileep Alias Vakeel Shivhare on 26 June, 2021

The present petition under Section 482 of Cr.P.C. has been filed by the petitioner for quashing entire criminal proceedings in connection with criminal case No. 985/2015 (Dileep @ Vakeel Shivhare Vs. Pramod Sharma & ors.) pending before the Court of Judicial Magistrate First Class, Raghogarh District Guna (MP) and also for quashing the order dated 02.12.2016 passed by Judicial Magistrate First Class, Raghogarh, District Guna, whereby 2 M.Cr.C. No.50867/2019 cognizance for the offence under Section 323 readwith Section 34, 294 and 352 of IPC has been taken against the petitioner.

2. Precisely stated facts of the case are that the petitioner No. 1 at the relevant point of time was working as Assistant Mining Offlcer at the offlce of Collector District Guna and petitioner No. 2 as Constable in Police department. On 05.10.2012 one dumper of complainant (respondent No.1 herein) was stopped by the petitioner No. 1 (who has been arrayed as accused No.1 in the private complaint) and since the driver of said dumper namely Harinarayan did not carry the required royalty receipt, rather carrying royalty receipt with interpolation over the date, therefore, the petitioner seized the vehicle and informed the Ruthiyai Police Chowki for keeping the seized dumper in premises of said police chowki. One Ramanand Pachori was posted as Assistant Sub-Inspector at said police chowki, therefore, relative of owner of the dumper i.e. respondent No.1 came at police station while demonstrating his clout and asserting himself snatched away the forged royalty receipt and misbehaved with the public officials. He tried to take away the dumper, therefore, FIR for alleged offence under Section 353 of IPC was registered against the respondent No.1 on 05.10.2012 itself on behest of the petitioner.

3. It appears from the document appended with the petition that on 05.10.2012 itself, respondent No.1 was arrested and produced 3 M.Cr.C. No.50867/2019 before the Judicial Magistrate First Class, Raghogarh District Guna, Allegedly, respondent No.1 did not appear in full dress but wearing vest and underwear only and it was his submission before the court that police personnels have taken out his cloths. Court directed to produce the said accused with full cloths and he was produced later on with full cloths and concerned Court accepted the plea of prosecution for judicial remand of respondent No.1 and consigned him to judicial custody till 18.10.2012.

4. It further appears from the documents that on 11.10.2012, charge-sheet was filed against him for offence under Section 353 of IPC. Charge-sheet contained the statement of driver Harinarayan who referred the fact that owner of dumper gave him a receipt without date with the instructions that if any Mining Officer would ask for receipt then receipt be shown by putting the date on which receipt is being asked. He did the same thing and therefore, relative of the owner of dumper (respondent No.1 herein) came to the police chowki and snatched away the royalty receipt from the Sub-Inspector of the said chowki and abused him. One security guard of Mining Department Pradeep Kewat also made statement under Section 161 of Cr.P.C. and the petitioner also made statement. Seizure memo indicates the royalty receipt of contractor Shri Jai Sai Ram and Party.

5. After filing of charge-sheet (on 11.10.2012), against relative of onwer of dumper (respondent No. 1 herein), six months later private 4 M.Cr.C. No.50867/2019 complaint was filed by the respondent No.1 herein on 03.04.2013 before the Judicial Magistrate First Class, Raghogarh, Guna under Sections 166, 294, 342, 352, 323, 500, 392 of IPC against the present petitioner and two other accused namely Ramanand Pachori, Assistant Sub-Inspector and Atul Sharma, Head Constable, Police Chowki, Ruthiyai, Police Station Dharnawada, District Guna in which trial Court took cognizance against the accused persons including the petitioner. Said cognizance has been challenged by the petitioner by way of revision but to no avail and same has been dismissed, therefore, this petition has been preferred.

6. It is the submission of learned counsel for the petitioner that royalty receipt produced by the driver of the vehicle appeared to be be dubious and forged, therefore, the petitioner seized the dumper and informed the police chowki to keep the dumper in its premises. After registration of FIR on 05.10.2012, respondent No.1 apparently relative of owner of the dumper tried to exert pressure over the petitioner and other police officials to release the dumper but did not succeed into it then he tried to create commotion in the police station and therefore, case has been registered against him under Section 353 of IPC. When charge-sheet has been filed then this private complaint has been filed as counter blast that to after six months in April, 2013 which is as afterthought.

5 M.Cr.C. No.50867/2019

7. It is further submitted that the complainant/respondent No.1 himself disrobed just to convey before the court about alleged police atrocities and try to influence the Court. After considering the submission on 05.10.2012, court below sent him into judicial custody and therefore, it is clear that court below on that particular day was not impressed by the conduct of the respondent No.1. Even otherwise, he disrobed himself on his own volition and photographs submitted by the respondent No.2/complainant are testimony to this fact because he is looking quite comfortable while giving his cloths to the police personnels. It was a devise to exert pressure.

8. It is also submitted that no sanction has been obtained under Section 197 of Cr.P.C. before the initiation of proceedings against the petitioner, which is mandatory requirement for the Court before taking cognizance. Therefore, he prayed for rejection of said complaint, which is still pending before trial Court.

9. Petitioner relied upon the order dated 13.11.2019 passed in Mcrc. No. 9990/2017 in case of co-accused Ramanand Pachori as reported in 2019(IV) MPJR 141 [Ramanand Pachori Vs. Dileep alias Vakil Shivhare & another] and seeks parity.

10. Learned counsel for the respondent No.1/complainant opposed the prayer and submitted that trial is required to reach to the truth and since photographs submitted by the respondent No.1 indicate that he was disrobed by the police personnels, therefore, trial Court rightly 6 M.Cr.C. No.50867/2019 took cognizance against the petitioner. Therefore, he prayed for dismissal of this petition.

11. Learned Public Prosecutor for the respondent No.2/State also opposed the prayer and prayed for dismissal of this petition.

12. Heard learned counsel for the parties and perused the documents appended thereto.

13. This is a case where respondent No.1 filed private complaint against the petitioner and two other accused (who were performing public duties) for alleged offence under Sections 323/34, 294 and 352 of IPC. The private complaint had been filed by the respondent No.1 on 03.04.2013 in which date of incident has been referred as 05.10.2012, therefore, admittedly private complaint was being preferred after six months of alleged date of incident. Contents of private complaint indicate that vehicle (dumper) was of ownership of his nephew (Hkkatk) Anil Chowksey and his vehicle was intercepted by the petitioner and when he found the royalty receipt suspicious, then he took the vehicle to the police chowki Ruthiyai to keep it there in safe custody of police till the petitioner investigates the matter or clarifies the facts.

14. Therefore, it was not the case where present petitioner as Mining Officer intercepted the vehicle of respondent No.1 and tried to get the benefit or gratification as alleged by the respondent No.1, therefore, from the very beginning case of respondent No.1 appears 7 M.Cr.C. No.50867/2019 doubtful and suspicious. He had no occasion to visit police chowkey when vehicle of his nephew was seized. Royalty receipt placed with the petition as one of the documents indicates that receipt was of one contractor Shri Jai Sai Ram and Party and in the private complaint, respondent No.1 as complainant has nowhere referred any reason for him to approach the police authorities for receiving the vehicle or seeking details of the course of events. It was the specific allegation of the Mining Officer and the petitioner that royalty receipt was dubious and statement of driver Harinarayan filed with the charge- sheet against the respondent No.1 indicates that royalty receipt was dubious and false because owner of the vehicle instructed the driver Harinarayan to put the date on the receipt, whenever intercepted by any Mining Officer or any other authority.

15. As per the submissions, the said case was pending adjudication and during that period as counter blast instant case has been filed which clearly appears as a counter blast and trial Court erred in taking cognizance in the matter on such scantily drafted complaint with motive of counter blast and to exert pressure over the officials who are witnesses in the case against the respondent No.1 (case under Section 353 of IPC). This private complaint is a clear case of abuse of process of law. Trial Court grossly erred in ignoring such aspect.

16. One more factor deserves consideration is the fact that this area coming under the Jurisdiction of this High Court is infested with 8 M.Cr.C. No.50867/2019 malice of illegal mining and it is common practice that whenever any vehicle containing minerals are being intercepted or detained then owner and their accomplice attack over the Police Personnels, Mining Officers as well as Revenue Officers. Hundreds of such instances tabulated where such audacity has been displayed by the miscreants to exert pressure over the public functionaries. Here, the course of events of this case are no different.

17. When respondent No.1 had any grievance regarding misbehavior of petitioner on 05.10.2012, then he could have made the complaint to the higher authorities then and there only and if no response would have offered by the said authorities, then respondent No.1 had the opportunity to make private complaint immediately thereafter, but he waited for six months and when charge-sheet has been filed on 11.10.2012 against him under Section 353 of IPC, and case proceeded, then he preferred this private complaint on 03.04.2013, that too after six months. In the said charge-sheet one statement under Section 161 of Cr.P.C. of driver of vehicle Harinarayan contains facts about dubious nature of work carried out by the owner of the dumper regarding illegal mining and receipt is also seized from the possession of the present respondent No.1, therefore, it is clear that at the time of interception of vehicle, driver did not have any valid receipt and when vehicle was seized then respondent No.1 tried to produce the false receipt to impress upon the 9 M.Cr.C. No.50867/2019 authorities regarding validity of transportation of minerals. He tried to obstruct the function of public servants, therefore, charge-sheet has been filed against him under Section 353 of IPC and it was the duty of the trial Court to see that when complainant is facing trial under Section 353 of IPC then issuance of cognizance would have the demoralizing effect over the public authority specially those who are witnesses in the case against the respondent No.1. This Court in the case of Somdatt Mishra Vs. State of Madhya Pradesh reported in 2019 (1) CRLR (MP) 39 cautioned the Courts below while taking cognizance in cases where public authorities perform their public duties and receive complaints from the affected person as counter blast. In such eventualities trial Court must weigh the allegations properly.

18. Here, in the present case, respondent No.1 has filed complaint as a counter blast which is clear abuse of process of law. On 05.10.2012 he allegedly disrobed himself and appeared in such condition before the competent Court (JMFC, Raghogarh, District Guna) and Court directed him to put the robes thereafter heard him and he was consigned to judicial custody for next 14 days till 18.10.2012. Therefore, his disrobing was nothing but a gimmick to get the misplaced sympathy of the Court and the trial Court became the victim of his gimmicks rather than seeing through the gimmicks displayed by the respondent Not.1. This fact gets substantiated by the 10 M.Cr.C. No.50867/2019 photographs which are being submitted by the respondent No.1 himself in which it is luculently clear that respondent No.1 handed over the cloths to the police personnel while embarking upon the police vehicle. He looked comfortable and not like a victim. When respondent No.1 filed the private complaint after six months that too on very incomplete set of allegations which are mainly omnibus in nature and his conduct whereby without being the owner of dumper his appearance in the police chowki and subsequent filing of charge- sheet against him, all establish the fact regarding his motive. If public authorities are not protected from such onslaught of false allegations then it would be difficult for them to hold and enforce the rule of law. Trial Court ought to have considered the said aspect.

19. Beside that, one more aspect deserves consideration in the case is in respect of Section 197 of Cr.P.C. A protective umbrella given to a public servant while performing public duties. Here the allegations categorically indicate that incident was in police chowki and occasion was seizure of dumper carrying minerals illegally without valid royalty receipt then inference is clear that petitioner and other public functionaries were subjected to interference and audacity by the respondent No.1 and when they did not succumb then complaint on the allegations of misbehaviour and use of force was being preferred. Therefore, it is the case where the petitioner was performing his 11 M.Cr.C. No.50867/2019 duties as public servant. Charge-sheet against the respondent No.1 under Section 353 of IPC had already been filed. All these facts establish that the petitioner was performing public duties as public servant and even the Section 352 of IPC raises a presumption (although rebuttable) in favour of public/police personnels when they use force to deter or restrain somebody from doing any wrongful act. This aspect also glossed over by the trial Court.

20. The judgment rendered by Hon'ble Apex Court in the case of Matajog Dobey Vs. H.C. Bihari reported in AIR 1956 SC 44 has mandated as under:-

"The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner, when he discharges official duty."

21. Similarly in the case of Rakesh kumar Mishra Vs. State of Bihar and others, (2006) 1 SCC 557, the Court has considered the scope of Section 197 of Cr.P.C. Relevant para for guidance is extracted hereinbelow:

"The protection given under Section 197is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the 12 M.Cr.C. No.50867/2019 alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. 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. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case."

Emphasis supplied

22. Therefore, in the cumulative analysis, the petitioner deserves to be protected under the protective umbrella of Section 197 of Cr.P.C. because it is his duty to cooperate the public servant (Assistant 13 M.Cr.C. No.50867/2019 Mining Officer in the present case) and to check illegal mining if any and to check such anti-social activities as may be prescribed under the law. It is not the case of respondent No.1 that the petitioner had no authority to confine the vehicle in his police chowki. Therefore, petitioner is facing trial on allegations of acts, which he did, while performing public duties. Trial Court erred in taking cognizance in the matter. It ought to have considered the impact of Section 197 of Cr.P.C. Case is void ab initio because no permission has been taken from the competent authority for putting the petitioner into trial.

23. Beside that, private complaint is a case guided by counter blast/malice and has the trappings of malicious prosecution, therefore, deserves to be set aside.

24. Hon'ble Apex Court in the matter of State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 laid down the different exigencies under which interference under Section 482 of Cr.P.C. can be made. Following exigencies are as under:

"(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the 14 M.Cr.C. No.50867/2019 same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2)of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

25. The Apex Court in the case of Priya Vrat Singh and others Vs. Shyam Ji Sahai, 2009 MPLJ (Cri.) (SC) 381 = (2008) 8 SCC 232, Rukmini Narvekar Vs. Vijaya Satardekar and others, (2008) 14 SCC 1 and Rajib Ranjan and others Vs. R. Vijyakumar, (2015) 1 SCC 513 followed the principles enumerated in the case of Bhajanlal (supra).

26. This Court in the case of Somdatt Mishra Vs. State of M.P. and others reported in 2019(1)MPLJ(Cri)327 equivalent 2019(1) CRLR (MP) 39 in somewhat similar fact situation held as under :-

"Harassment of the public servant on pretext of false complaint at the instance of or in hands of those, who were 15 M.Cr.C. No.50867/2019 restrained by the public servant for committing illegal and unauthorized act, is anathema to the Rule of Law and it is the duty of the Investigation, Prosecution and Competent Criminal Court to look into the allegations objectively while considering the background of the case and not in a routine manner. Order of Court, summoning an accused must reflect application of mind."

27. As per the submissions of petitioner, criminal case is still pending before trial Court. Therefore, Court can interfere in extra- ordinary jurisdiction under Section 482 of Cr.P.C. In the considered opinion of this Court, the petition preferred by the petitioner deserves to be allowed and is hereby allowed and cognizance taken by the trial Court is hereby set aside.

28. Resultantly, impugned orders dated 23.06.2017 and 02.12.2016 are set aside. Petitioners are set free. Petition stands allowed and disposed of in above terms.

(Anand Pathak) Judge neetu SMT NEETU SHASHANK 2021.07.01 11:18:02 +05'30'

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Madhya Pradesh High Court