Delhi District Court
Rajesh Alias Rajesh Kumar vs Kusum Alias Kusum Lata And Ors on 21 October, 2024
IN THE COURT OF PRAVEEN KUMAR,
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-WEST, DWARKA COURTS, NEW DELHI
CR No. 440492/2016
CRN No. DLSW01-006599-2016
Rajesh @ Rajesh Kumar
S/o Sh. Harcharan Lal
R/o B1/63, UGF1,
Sewak Park, Uttam Nagar,
New Delhi 110059 ....... Revisionist
Vs.
1. Naresh Kumar, Inspector
(The then SHO)
PS Dwarka North,
Sector 16B, Dwarka,
New Delhi
2. Lakhmi Chand, Head Constable,
PS Dwarka North
Sector 16B, Dwarka,
New Delhi
3. Sh. Pujya Kumar Singh, Advocate
S/o Sh. Ghurey Singh
Chamber No. 225,
Western Wing,
Tis Hazari Courts,
Delhi 110006
Also, at: DG-1/40A,
Vikas Puri, New Delhi 110018 ....... Respondents
Date of Registration of revision : 14.09.2016
Date of conclusion of arguments : 19.09.2024
Date of pronouncement of order : 21.10.2024
CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 1 of 25
Digitally signed
PRAVEEN by PRAVEEN
KUMAR
KUMAR Date: 2024.10.21
10:47:48 +0530
Memo of appearance:
Sh. Rajesh Kumar, revisionist in person.
ORDER:
1. The present revision petition has been filed challenging the order dated 09.08.2016, passed by Sh. Rajinder Singh, the then Learned Metropolitan Magistrate (MM-06), South-West District, Dwarka, New Delhi. By this order, the court summoned only accused no. 1, Smt. Kusum Lata (wife of the petitioner), for offences under Sections 500 and 501 of the Indian Penal Code (in short, 'IPC'). However, the other accused persons-respondents 1 and 2, who are reportedly police officials, as well as respondent no. 3, the Advocate representing the wife of the accused in various cases-were not summoned. The non-summoning of these respondents is the subject of challenge in the present revision petition.
2. For the sake of convenience, I would be referring to parties as per their nomenclature before the trial court. Therefore, revisionist-Rajesh Kumar would be referred to as 'complainant' and respondent nos. 1-3 as 'accused nos. 2-4'.
3. Trial court record has been requisitioned.
BRIEF FACTUAL MATRIX:
4. The complainant filed a complaint under Section 200 read with Section 190 of the Criminal Procedure Code, 1973 (in short, 'Cr.P.C'), alleging that accused no. 1, Smt. Kusum Lata, is his estranged wife, to whom he was married on CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 2 of 25 Digitally signed PRAVEEN by PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:47:57 +0530 10.12.2001. Accused no. 2 is the then Station House Officer (SHO) of Police Station Dwarka North; accused no. 3 is a Head Constable posted at the same Police station at that time; and accused no. 4 is the advocate representing accused no. 1 in various courts, including those at Dwarka and Karkardooma.
5. The complainant states that from the inception of their marriage, there were matrimonial disputes between him and accused no. 1. Due to these issues, the couple initially separated from the joint family and began residing in a rented accommodation at 933, Sector 14, Radhika Apartments, Dwarka, New Delhi. However, accused no. 1 later on asked the complainant to vacate the premises, forcing him to move to his brother's residence at 226, Radhika Apartments, Dwarka, Sector 14, New Delhi.
6. Subsequently, accused no. 1 initiated multiple legal proceedings against the complainant, including a complaint under Sections 498A/406/34 of the IPC and a divorce petition under Section 13(1)(1-a) of the Hindu Marriage Act, 1955.
7. On 28.06.2012, while the complainant's brother, Sunil, was away, the complainant invited one of his clients, Ms. Renu Mishra, to his flat to discuss her case. She arrived at around 10:15 a.m., but upon her arrival, the complainant asked her to wait outside the flat. While she was waiting, accused no. 3, Head Constable Lakhmi Singh, approached and asked the complainant to open the door. When the complainant inquired, CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 3 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:48:06 +0530 the police official responded that he was there to search the house. Shortly afterwards, accused no. 2, the SHO, arrived at the scene, followed by accused no. 1, Smt. Kusum Lata, who began shouting and falsely accusing the complainant of running a prostitution racket. She also made several defamatory and derogatory remarks against the complainant, his brother, and his female client, Ms. Renu Mishra.
8. The complainant and Ms. Renu Mishra were subsequently taken to the Police Station, where they were interrogated regarding the allegations made by accused no. 1. During interrogation, humiliating questions were directed at Ms. Renu Mishra, and the police officials attempted to extract a written confession from both the complainant and his client. After some time, they were allowed to leave the Police Station.
9. The complainant further alleged that following this incident, accused no. 1 continued to defame him by publicly discussing the events of 28.06.2012, repeatedly accusing him of being involved in immoral trafficking.
PROCEEDINGS BEFORE THE TRIAL COURT:
10. The matter was, thereafter, fixed for recording of complainant's evidence. On 17.10.2014, complainant's evidence was closed.
11. Ld. Trial court, vide the impugned order, observed that offence of defamation u/S 500 and 501 of the IPC is only made out against only accused no. 1. Therefore, only accused CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 4 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:48:33 +0530 no. 1 was summoned.
12. Such order of non-summoning of accused nos. 2-4 has been challenged by the complainant by way of filing the present revision petition.
13. It is important to note that the revisionist initially filed the present revision petition against all the accused persons, i.e., accused nos. 1 to 4. However, as per order sheet dated 22.07.2017, the revisionist submitted that since accused no. 1 had already been summoned by the trial court, he no longer had any grievance regarding her summoning. Consequently, the name of accused no. 1 was removed from the memo of parties.
SUBMISSIONS ON BEHALF OF THE REVISIONISTS:
14. The revisionist, Sh. Rajesh Kumar, has argued his case in person extensively and also submitted written arguments. He contends that the trial court erred by not summoning accused nos. 2 and 3, who failed to explain the reason for their arrival at his residence. Even if accused no. 1, Smt. Kusum Lata, had lodged a complaint against him, it was the responsibility of the police officials (accused nos. 2 and 3) to inform him of the complaint and conduct a proper inquiry. Instead, they took him and his female client, Ms. Renu Mishra, to the Police Station, subjected them to humiliation, and coerced them into admitting to engaging in illicit sexual activities. They also threatened to conduct medical tests to prove the same.
CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 5 of 25 Digitally signed byPRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:48:46 +0530
15. Revisionist argues that accused nos. 2 and 3, being police officers, had a duty to verify the veracity of the complaint, but instead, they openly humiliated him and Ms. Renu on the street. He asserts that the trial court failed to properly consider the lack of justification for the police action taken by accused nos. 2 and 3, and it wrongly concluded that they were merely performing their official duties. He maintains that, in reality, they misused their official powers to insult, defame, and extort money from him.
16. He further contends that the trial court's observation that the interrogation by accused nos. 2 and 3, even if humiliating, constituted "insult" rather than defamation, is flawed. He argues that the trial court should have summoned accused nos. 2 and 3 for the offence under Section 504 IPC. Further, he challenges the court's conclusion that it lacked jurisdiction to address the joint written statement filed by accused nos. 1 and 4 before the Family Court, calling this observation erroneous.
17. The revisionist emphasizes that there are specific allegations against accused no. 4, and the trial court failed to appreciate this. In light of these arguments, he asserts that the trial court should have summoned all the accused persons for the offence under Section 499 IPC.
18. In support of his contentions, revisionist has relied upon following judgments:-
CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 6 of 25 Digitally signedPRAVEEN by PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:49:07 +0530 i. Balraj Khanna & Ors. Vs. Moti Ram, 1971 (3) SCC 399; ii. Rajiv Bajaj Vs. Malkiat Kaur, 2013 SCC Online P& H 8438;
iii. Vibin P.V Vs. State of Kerela, 2012 SCC Online Ker 31401;
iv. K.V. Prakash Babu Vs. State of Karnataka, (2017) 11 SCC
176.
v. Amar Nath & Ors. Vs. State of Haryana & Ors., 1977 AIR 2185.
vi. Madhu Limaye Vs. State of Maharashtra, 1978 AIR 47. vii. K.K. Patel & Anr. Vs. State of Gujarat & Anr, SLP (Crl) No. 3774/1999, decided by Hon'ble Apex Court on 12.05.2000. viii. Lal Bahadur Gautam Vs. State of UP & Ors, Civil Appeal No. 4794/2019, decided by Hon'ble Apex court on 08.05.2019.
19. The accused nos. 2 to 4, although initially made appearances in court, however, later on, stopped attending the proceedings.
SUBMISSIONS OF ACCUSED NO. 2:
20. Accused no. 2 filed a reply to the present revision petition, stating that he served as the SHO of PS Dwarka North from 22.09.2010 to 27.08.2013. However, he denied all allegations made against him in the complaint, asserting that they are false. He claimed that on the alleged date of the incident, 28.06.2012, he was on casual leave for seven days starting from 23.06.2012, as per DD No. 21A PS Dwarka North dated 22.06.2012. In his absence, the Inspector (Investigation) was handling the duties of SHO at PS Dwarka North.
CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 7 of 25 Digitally signed PRAVEEN by PRAVEEN
KUMAR
KUMAR Date: 2024.10.21
21. He further stated that he rejoined his duties on 30.06.2012, as recorded in DD No. 12A PS Dwarka North. According to the Police Station's records, a PCR call regarding a quarrel at H. No. 226, Radhika Apartment, Sector 14, Dwarka, was received on 28.06.2012 and recorded as DD No. 16A. This call was assigned to HC Lakhmi Chand, who responded to the scene and acted in accordance with the law. All facts and events were duly recorded in the daily diary as per DD No. 69B PS Dwarka North on 28.06.2012.
SUBMISSIONS OF ACCUSED NO. 3:
22. A reply was also submitted on behalf of accused no. 3, in which he stated that on 28.06.2012, upon receiving DD No. 16A regarding a quarrel, he proceeded to Flat No. 226, Radhika Apartment, Sector 14, Dwarka, New Delhi, which belonged to the complainant. Upon arrival, he found accused no. 1, Smt. Kusum Lata, who identified herself as the complainant's wife and informed him that a divorce case between them was pending in the court. Accused no. 3 then requested the complainant and Ms. Renu Mishra to accompany him to the Police Station.
23. At the Police Station, the SHO was on leave, and ATO Inspector Ghanshyam was handling the SHO's duties. The entire interrogation took place under the supervision of ATO Inspector Ghanshyam. After the inquiry, the complainant and Ms. Renu Mishra were allowed to leave the Police Station following Inspector Ghanshyam's instructions.CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 8 of 25 Digitally signed by PRAVEEN
PRAVEEN KUMAR
KUMAR Date: 2024.10.21
24. Accused no. 3 further stated that the interrogation of the complainant and Ms. Renu Mishra was conducted in the course of his official duties and that he did not show any disrespect towards them at any stage. He claimed that, as a Police Officer, he was obligated to act upon the complaint made by accused no. 1, and that the inquiry conducted was routine in nature, without any harassment or humiliation of the complainant or Ms. Renu Mishra. He emphasized that there was no intention to defame the complainant or Ms. Renu Mishra
25. No reply has been filed on behalf of accused no. 4.
ANALYSIS AND FINDINGS:
26. I have carefully considered the oral arguments presented by the revisionist/complainant, along with his written submissions. I have also gone through the replies submitted on behalf of accused nos. 2 and 3, as well as the impugned order, the contents of the revision petition, and the trial court record that has been requisitioned. Further, I have examined the judgments cited by the revisionist in support of his contentions.
The reliance on various judgments cited by the complainant is misplaced, as those cases differ significantly from the facts of the present case. Each case must be evaluated based on its unique circumstances, and the precedents cited do not directly apply here. Therefore, the conclusions drawn from those judgments cannot be used to support the complainant's arguments in this matter.
CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 9 of 25 Digitally signed byPRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:49:41 +0530 POLICE OFFICIALS- ACCUSED Nos. 2 AND 3:-
27. Under Cr.P.C, at the time of summoning of accused persons, only the contents of the complaint and the evidence led by the complainant is to be considered. Thus, the aforesaid replies submitted by accused nos. 2 and 3, mentioning their defences, are not relevant for the purpose of disposal of the present revision petition.
28. Though not referred to or relied upon, in M/s Pepsi Foods Vs. Special Judicial Magistrate, AIR 1998 SC 128, the Apex Court held that summoning of an accused in a criminal case is a serious matter. The relevant paragraph of the judgment is reproduced hereunder:-
"26. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".
(Emphasis mine) CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 10 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21
29. For just decision, the statutory provisions of Section 140 of Delhi Police Act as also Section 197 of Cr.P.C., which have important bearings in the instant matter, are reproduced as under:-
"140. Bar to suits and prosecutions.- (1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a Police Officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) ............
(3) ............"
30. Section 197 Cr.P.C. Prosecution of Judges and Public servants reads as under:-
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 11 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:50:18 +0530 alleged offence employed, in connection with the affairs of a State, of the State Government:.... (2) .............
(3) .............
(3A) ............
(3B) .............
(4) ..............."
31. Though not referred to or relied upon, the Apex Court in Sankaran Moitra Vs. Sadhna Das, (2006) 4 SCC 584, has held as under:-
12. We may first try and understand the scope of Section 197 and the object of it. This Court in Shreekantiah Ramayya Munipalli Vs. State of Bombay [1955 (1) SCR 1177) explained the scope of Section 197 thus:
"Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is --
'When any public servant ... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'.....'We have therefore first to concentrate on the word 'offence'.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 12 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:50:27 +0530 the present case, the elements alleged against the second accused are, first, that there was an "entrustment" and/or "dominion"; second, that the entrustment and/or dominion was "in his capacity as a public servant"; third, that there was a "disposal"; and fourth, that the disposal was "dishonest". Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it."
This Court therefore held in that case that Section 197 of the Code of Criminal Procedure applied and sanction was necessary and since there was none, the trial was vitiated from the start.
13. Again in Amrik Singh Vs. The State of PEPSU [1955 (1) SCR 1302] this Court after referring to the decisions of the Federal Court and the Privy Council CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 13 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 referred to earlier and some other decisions summed up the position thus:
"The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under section 197 (1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution."
14. After noticing the facts of that case, their Lordships stated:
"In our judgment, even when the charge is one of misappropriation by a public servant, whether sanction is required under Section 197(1) will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required."
xxx
16. A Constitution Bench of this Court had occasion to consider the scope of Section 197 of the Code of CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 14 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:50:49 +0530 Criminal Procedure in Matajog Dobey Vs. H. C. Bhari [1955 (2) SCR 925], after holding that Section 197 of the Code of Criminal Procedure was not violative of the fundamental rights conferred on a citizen under Article 14 of the Constitution, this Court observed:
"Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that Section 197, Criminal Procedure Code vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his duties. No one can take such proceedings without such sanction."
17. On the test to be adopted for finding out whether Section 197 of the Code was attracted or not and to ascertain the scope and meaning of that Section, their Lordships stated:
"Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 15 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:50:57 +0530 in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merit. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation."
xxx
19. In the light of the above decision it does not appear to be necessary to multiply authorities. But we may notice some of them briefly. In Pukhraj Vs. State of Rajasthan & Another [(1973) 2 SCC 701], this Court held:
"While the law is well settled the difficulty really arises in applying the law to the fact to any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 16 of 25 Digitally signed PRAVEEN by PRAVEEN KUMAR KUMAR Date: 2024.10.21 of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of and act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office" and "professed exercise of the office"
may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty."
20. In B. Saha & Ors. Vs. M.S Kochar [(1979) 4 SCC 177], this Court held:
"18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."
21. In Bakhshish Singh Brar Vs. Gurmei Kaur & Anr. [(1987) 4 SCC 663], this Court stated that it was necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, and that is the rationale behind Section 196 and Section 197 of the Code. But it is equally important to emphasize that rights of the citizens should be protected and no excesses should be permitted. Protection of public officers and public servants functioning in discharge of their official duties and protection of private citizens have to be balanced in each case by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 17 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:51:24 +0530 duties, and whether the public servant has exceeded his limit. In the recent decision in Rakesh Kumar Mishra Vs. State of Bihar & Others [(2006) 1 SCC 557], this Court after referring to the earlier decisions on the question stated:
"The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned."
22. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were , for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question".
(Emphasis mine)
32. Though not referred to or relied upon, Hon'ble High Court of Delhi in case titled Rakesh Kumar No. 1912/T Vs. State (NCT of Delhi), 2009 SCC Online Del 533, dealt with the similar issue wherein the accused, an official of Delhi Police, was being prosecuted for offence punishable under section 304A of IPC. The facts of said case, as noted by Hon'ble High Court at paragraph 8, are as under:-
"8. I have heard learned counsel for the parties CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 18 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:51:35 +0530 who have taken me through the record of the case. The petitioner, admittedly was deployed on deputation in the traffic department of the Delhi Police and was working as a constable. On 3.1.2002, the date of the incident, he was driving the crane bearing No.DL-1L-E0611. When he reached Raisina Road, Delhi he found a vehicle bearing No.DL IV-6092 parked illegally near Kendriya Bhandar, Raisina Road, Delhi. Finding that the vehicle was parked illegally and in a no parking area', the petitioner on the directions of his superior, put the hook of the said traffic crane into the bumper of the parked vehicle so that the vehicle could be lifted and removed from the no parking place. However, at the request of the driver of the vehicle that the vehicle in question was a government vehicle, the petitioner was directed by his superior to loosen the iron rope so as to free the hook from the parked vehicle. It is, at this stage that the iron nub struck on the head of one Deepak, who was part of the vehicle lifting squad, standing nearby and on account of the head injury suffered by him, he was declared brought dead at the hospital.
xxx xxx xxx "12. I find that the learned Metropolitan Magistrate as well as the learned ASJ have failed to apply their mind and dismissed the application/revision of the petitioner only on the ground that sanction under section 140 of the Delhi Police Act was not necessary.....".
13. Having considered the fact that on account of the basic lacunae, the complaint is not likely to succeed, there would be no useful purpose in keeping the same pending. In the facts and circumstances of this case and having regard to the provisions of section 140 of the Delhi Police Act; taking into consideration that the mandatory requirement of sanction was not fulfilled; and also the fact that respondents had filed the sanction but beyond the period of limitation, hence there exists no sanction in the eyes of law, accordingly, this petition CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 19 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:51:49 +0530 deserves to be allowed. Consequently, order dated 13.7.2004 passed by the learned Metropolitan Magistrate and order dated 30.10.2004 passed by the learned Additional Sessions Judge, Delhi, in case FIR No.3/2002 under Section 304A IPC, are set aside and proceedings quashed against the petitioner".
(Emphasis mine)
33. Though not referred to or relied upon, in State of NCT of Delhi Vs. Samunder Singh, Crl. M.C. No. 1234/2011, decided on 31.03.2014, by our Hon'ble High Court of Delhi, summoning order passed by learned Magistrate against two Delhi Police officials for commission of offences punishable under Sections 193/341/364A/506/34 IPC was under challenge. It was observed:
"5. After having heard both the sides and on perusal of impugned order, pre-summoning evidence, material on record and the decisions cited, I find that truthfulness of the allegations levelled cannot be gone into while exercising inherent powers under Section 482 of Cr.P.C. but what stares in the face is that instant complaint prime facie appears to be a counterblast to FIR No.199/2003 registered against Rajesh Rathi, son of respondent-complainant, who is a dismissed police official and is said to be also involved in other criminal cases including FIR case No.186/03 under Section 392/397/34 of IPC registered at P.S. Naraina, Delhi. It is pertinent to note that respondent-complainant's version of his son Rajesh Rathi being abducted get clouded by the fact that he was apprehended in FIR No.199/2003 under Sections 399/402 of IPC read with Section 25/27 of the Arms Act by SI Raj Kumar and his staff. In any case, merits of instant complaint cannot be pre-judged at this stage. It would suffice to note that in a complaint case like instant one, requirement of prior sanction for prosecution of SI Raj Kumar and ASI Charan Singh cannot be undermined. It cannot be said that the alleged offence is not reasonably connected with the performance of official duties by these two police officials. On this aspect, pertinent observations made by Apex Court in Anjani Kumar (supra) are as under:-CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 20 of 25 Digitally signed by PRAVEEN
PRAVEEN KUMAR
KUMAR Date: 2024.10.21
"The protection given under Section 197 is 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 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 of 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 197 can 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 CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 21 of 25 Digitally signed PRAVEEN by PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:52:10 +0530 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 this 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."
6. Afore-noted dictum stands reiterated by Apex Court in Anil Kumar & Ors. V. M.K. Aiyappa & Ors. (2013) 10 SCC 705 in these words:-
"Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him.....If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio."
7. In the considered opinion of this Court the afore-noted dictum aptly applies to the facts of the instant case, as I find that SI Raj Kumar and ASI Charan Singh had acted in the course of their official duties and so, impugned order summoning them as an accused without prior sanction under Section 140 of Delhi Police Act renders impugned summoning order unsustainable and it is accordingly quashed".
(Emphasis mine)
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Digitally signed
by PRAVEEN
PRAVEEN KUMAR
KUMAR Date: 2024.10.21
34. Considering the facts and circumstances of the case, I am of the opinion that the alleged acts of accused nos. 2 and 3's were done by them in discharge of their official duties. Hence, the bar of Section 197 Cr.P.C comes into picture. Thus, solely on the basis of averments made in the complaint, cognizance of the alleged offence against accused no. 2 and 3 should not have been taken without requisite prior sanction of Competent Authority.
35. Further, if the present case is tested upon statutory provision of Section 140 of Delhi Police Act also, which is wider in nature than Section 197 of Cr.P.C, then too, in my opinion, accused no. 2 and 3 could not be summoned.
36. Therefore, in view of the statutory provisions of Section 140 of Delhi Police Act and Section 197 of Cr.P.C and in view of the settled legal position as laid down in Sankaran Moitra (supra), Rakesh Kumar (supra) and Samunder Singh (supra), I am of the opinion that prosecution of accused no. 2 and 3 by the complainant without requisite prior sanction is bad in law.
37. Accordingly, in view of the aforesaid legal position, the order of trial court with regard to non-summoning of accused nos. 2 and 3 is congruous and justified and I find no reason to arrive at a conclusion different from that of the trial court.
CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 23 of 25 Digitally signed PRAVEEN by PRAVEEN
KUMAR
KUMAR Date: 2024.10.21
ADVOCATE-ACCUSED No. 4:
38. As regards accused no. 4, Sh. Pujya Kumar Singh, who serves as an advocate representing accused no. 1 in various courts, there are no specific allegations of defamation against him either in the complaint or in the statement of complainant before the court. The complainant's assertion that a joint written statement was filed by accused nos. 1 to 4 before the Family Court, containing defamatory material, has been appropriately addressed by the trial court. If the complainant has objections regarding the contents of the written statement, he is entitled to raise those objections before the appropriate Family Court. Thus, accused no. 4 also cannot be summoned in this case based on the said written statement.
CONCLUSION:
39. In revisional jurisdiction, court is to examine the correctness, legality or propriety of the order. In the facts and circumstances of the present case, there is no irregularity, illegality, impropriety or perversity in the view taken by the Trial Court. This court is satisfied, as regard the correctness, legality and propriety of the order passed by the Trial court.
40. In view of my foregoing discussion, I am of the opinion that the order dated 09.08.2016 of the Trial Court is valid and justified order. Same is, therefore, upheld. Revision petition is dismissed.
41. A copy of this order be sent to trial Court along CR No. 440492/2016 Rajesh @ Rajesh Kumar Vs. Insp. Naresh Kumar & Ors. Page 24 of 25 Digitally signed by PRAVEEN PRAVEEN KUMAR KUMAR Date: 2024.10.21 10:52:53 +0530 with Trial Court record.
42. Revision file be consigned to Record Room.
Digitally signedAnnounced in Open Court by PRAVEEN
On 21.10.2024 (sv) PRAVEEN KUMAR
Date: KUMAR 2024.10.21
10:52:59 +0530
(Praveen Kumar)
Principal District & Sessions Judge
South-West/Dwarka
New Delhi
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