Delhi District Court
Jai Bhagwan Inspector vs The State on 7 November, 2014
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE02, CENTRAL, DELHI
Crl. Revision No. : 24/2014
CC No. : 1261/14
P.S. : Sarai Rohilla
U/s : 217/218/201/471/120B IPC
Case ID No. : 02401R0264502014
IN THE MATTER OF :
Jai Bhagwan Inspector
No. D3043, Delhi Police
R/o Pocket B4/7576
Sector8, Rohini, Delhi 85
.................Petitioner
Vs.
1. The State
2. Sukant Vaid
S/o Late Sh. Vasudev
R/o 380, Bagh Kare Khan
Kishan Ganj, Delhi
.............Respondents
Date of Institution : 05.06.2014
Date of Arguments : 28.10.2014 & 01.11.2014
Date of Order : 07.11.2014
ORDER
1. This is a revision petition filed on behalf of petitioner Crl. Rev. No.: 24/2014 1/12 aggrieved by the order of Ld. trial court dated 29.04.2014 whereby petitioner was directed to be summoned as an accused u/s 217/218/201/471/120B IPC in the complaint pending before Ld. trial court.
2. In terms of allegations, complainant was working as social worker and had initiated action in interest of public at large inviting wrath by police personnel and others with their trying to falsely implicate him in false cases. In terms of complaint, the ancestral property belonging to the grand mother of complainant was purchased by accused no.2 on the basis of forged and fabricated documents from other coshare holders and accused no.2 with the help of gunda elements tried to break the locks of complainant's portion of the second floor on 24.2.2008. A call was made at 100 number by the complainant but in violation of the directions of IO and with the help and consent of accused no.1 i.e. petitioner herein who was SHO of the P.S. concerned, accused no.2 broke open the locks of complainant put upon ground and first floor of the property and falsely called at 100 number on the same date and time. Though accused no.2 could not succeed in her motive but the request of complainant to initiate proceedings u/s 145/146 Cr.P.C. was declined by accused no.1 who was incharge of police station being SHO, despite endorsement by the IO, hence the complaint was lodged by complainant .
3. The application of complainant moved u/s 156 (3) Cr.P.C. was dismissed but after examination of complainant as CW1, Ld. trial Crl. Rev. No.: 24/2014 2/12 court proceeded ahead to pass summoning order against accused persons including petitioner herein.
4. Ld. counsel for petitioner challenged the impugned order on the ground of want of notice u/s 140 of DP Act and sanction u/s 197 Cr.P.C. besides the challenge on merits of the case by submitting that there was no evidence on record which prima facie suggests that petitioner could be summoned by Ld. trial court for offence u/s 217/218/201/471/120B IPC as the petitioner had not disobeyed any directions of law nor had furnished false information in response to RTI query as was noted by Ld. trial court. It was also submitted that the petitioner had never visited the spot nor had done anything against the law nor there was any irregularity on his part in discharge of his official duty as SHO. Ld. counsel for petitioner in support of his argument that no notice u/s 140 DP Act was given and no sanction under section 197 Cr.P.C. was obtained by the complainant which itself debarred the court from taking cognizance, placed reliance upon Laxmi Narain Vs. Krishan Kumar & Anr. 2014 (3) JCC 2150 wherein it was observed that as statutory protection provided under section 197 of the code or under section 140 of the Delhi Police Act is available to accused who claims that no offending act was done by him and particularly in view of the fact that he stands exonerated in the departmental proceedings, therefore prosecution in absence of sanction u/s 197 cr.P.C. or u/s 140 of DP Act was held to be expressly barred.
Crl. Rev. No.: 24/2014 3/12
5. Ld. counsel for petitioner further placed reliance upon 2012 (1) JCC 702 Om Prakash & Ors. Vs. State & Anr. wherein the petitioners were police officers and had acted in discharge of their duties and in compliance of the orders of Commissioner of Police. The allegations taken at their face value as observed did not constitute any offence against the petitioners. Therefore it was held that subjecting the petitioners to undergo criminal trial was nothing but an abuse of the process of law.
6. Reliance was further placed upon Mukesh Kumar Vs. State I (2012) DLT (Crl.) 535 by Ld. counsel for defence wherein the investigating officer in part of his official duty alleged to have given false information to some offender or to frame incorrect record to some offender and helped accused in making attempt of cheating. The petitioner was government servant and was still working as Inspector in Delhi. As observed, the act complained of was done under colour of office of respondent and fell within ambit of section 140 (1) of DP Act and as held, prosecution authority was supposed to take sanction as enumerated under section 140 of DP Act and under section 197 (1) Cr.P.C and since the sanction as required was not taken, therefore impugned order was held to be bad in law.
7. Per contra, the objection was taken by respondent no. 2/complainant with respect to maintainability of revision petition before this court. It was submitted that in the instant matter, Ld. trial court has Crl. Rev. No.: 24/2014 4/12 only passed the order for summoning of the petitioner to produce his defence before Ld. trial court and no charge so far has been framed against the petitioner nor he was declared an accused for commission of offences as mentioned in the complaint. According to complainant, the order passed by Ld. trial court being interlocutory order, no revision petition could be maintainable against the same.
8. In catena of judgments including K.K. Patel & Anr. Vs. State of Gujrat AIR 2000 SC 3346, AIR 2009 SC 2459 Rameshan Vs. Rakesh Kumar Yadav and Amar Nath Vs. State of Haryana and Anr. (1977) 4 SCC 137, interalia it was held by superior courts that " the feasible test is whether by upholding the objections raised by a party, would it result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397 (2) of the Code ". A judicial order can be of three types. It may be a final order, an intermediate order or an interlocutory order. If an order finally disposes of a matter in dispute, it is termed as final order. As was held by Hon'ble Supreme Court in Amar Nath Vs. State of Haryana (supra) the term " interlocutory Order" in section 397 (2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a Crl. Rev. No.: 24/2014 5/12 revision against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section
397. Thus, for instance, orders summoning witnesses, adjourning case, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie u/s 397 (2). but orders which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be outside the purview of the revisional jurisdiction " . Therefore test to determine substantial order or an interlocutory order is that whether the proceedings would be terminated if the objections of the petitioner are upheld. In the instant matter if the objections of the petitioner are upheld it would lead to setting aside the summoning order and thereby will terminate the complaint itself against him . Therefore the impugned order passed by Ld. trial court cannot be termed as interlocutory order and accordingly the revision petition against the said order shall be maintainable.
9. On the merits of the case, it was submitted by complainant that prior to filing of complaint, though, he had not issued the prior notice to petitioner but had sent several complaints to senior officers for suitable action after which he was informed that because of the pendency of civil case, police could not take any action, therefore complaint was filed by complainant before Ld. trial court and in such situation, there was no violation of provisions of section 140 of DP Act and 197 of Cr.PC. In Crl. Rev. No.: 24/2014 6/12 terms of own case of complainant, as accused no.2 tried to break open the locks of his portion i.e. second floor on 24.2.2008, a call was made by him at 100 number. Civil suit regarding the said property was pending and the parties had been directed to maintain status quo till final disposal of the civil case and as deposed by CW1, this fact was clearly mentioned by IO in DD no. 18A, 22A and 44B dated 24.2.2008 that in the second floor of property, the household goods belonging to complainant were kept and same was within the possession of complainant whereas ground floor and first floor of property were vacant which were not in possession of accused no.2. On the basis of same, it was submitted that accused no. 2 by violation of the directions of IO with the help of petitioner, broke open the locks of complainant put upon the ground floor and first floor of property and falsely called at 100 number on the same date and time when the statement of accused no.2 was recorded by IO who stated that " Mai Kabhi Yha Kabhi Chandni Chowk me Rehti hu. Aj Subah Mai Aai to tala Khol Kar Saman Sukhane neechey gai to sumen mai jakr baithi thi. Itne me Jis se mukadma Chal rha hai police lekr aya ki maine tala tod rakha hai jabki aisa kuch nahi hai" . It was stated that this contradictory statement was recorded with collusion of accused no.1 so that accused no. 2 could succeed to recover the illegal/forceful possession upon the whole property. The Complainant did not place on record any such noting by IO with observation that the first and ground floor of property were vacant and not in possession of accused no.2, whereas in terms of statement of Crl. Rev. No.: 24/2014 7/12 opposite party as placed reliance upon by complainant himself as Ex. CW1/B, it was specifically stated by her that after the purchase of house when she went to take the possession, lock was found on the staircase and when she tried to open the locks, complainant started quarreling with her which was followed by a civil dispute. For the property at ground and first floor, she specifically stated that she was in possession of the same and rather in terms of Ex. CW1/E, it was reported by ASI Pooran Singh with respect to complaint dated 1.10.2010 that the proceedings u/s 145/146 Cr.P.C. could not be initiated because of pendency of civil suit. The abovesaid observation was endorsed by SHO concerned on 20.10.2010 . Similarly vide Ex. CW1/F on the complaint of complainant, it was reported by SI Dharampal Singh that the civil suit pertaining to the property was pending and if the complainant insisted that because of the property, there was daily dispute between the parties, then SHO may initiate appropriate action on the same.
10. The grievance of petitioner is that SHO concerned had not initiated proceedings u/s 145/146 Cr.P.C. despite his repeated complaints. However it may be noted that besides the fact that the refusal by petitioner to initiate proceedings was under the colour of his officials duties, even otherwise the initiation of proceedings u/s 145/146 Cr.P.C. was not warranted in view of the pendency of civil suit and order of maintaining status quo by the civil court.
11. The observation of Ld. trial court that petitioner had disobeyed Crl. Rev. No.: 24/2014 8/12 the directions of law by providing the wrong information to complainant, thereby holding him liable to be summoned for offence u/s 420/471 IPC is also contrary to the material available on record. In reply to RTI query of complainant, under the signatures of MHC(R) forwarded by SHO Sarai Rohilla, it was replied that there was no PCR call on 100 number made by complainant on 8.8.2010 which was observed as furnishing the wrong information by Ld. trial court. In terms of record, complainant himself had no where stated that he had called at 100 number on 8.8.2010. He had rather stated that the call was made by accused no. 2 on 8.8.2010, whereas he himself had made call at 100 number on 24.2.2008. Therefore the reply to RTI query cannot be said to be providing false information as has been noted/observed by Ld. trial court.
12. The complainant has leveled only the sole allegation against petitioner with respect to recording of contradictory statement of accused no.2 in collusion with petitioner herein and that the locks were broken open by accused no.2 with the help and consent of petitioner, which is apparently not correct as per record. The petitioner was not IO nor had recorded the said statement of accused no.2 who had merely endorsed the finding of IO and further declined to initiate proceedings u/s 145/146 Cr.P.C. which as already observed was not even warranted. The complainant who claims himself to be a social worker and claims to have initiated action in interest of public at large against various departments inviting ire by many, in the instant matter, seems to be pursuing his Crl. Rev. No.: 24/2014 9/12 personal interest on the allegations that accused no.2 had allegedly purchased the property from his coshare holders in the property on the basis of forged and fabricated documents. Though while taking judicial notice of certified copies of judicial order on record dated 24.1.2013 passed by civil court in civil suit for declaration, permanent and mandatory injunction, filed by the complainant against accused no.2 with respect to property in question, while dismissing the case of complainant Ld. court observed that he had no locus standi and cause of action in respect of the suit property. It was also observed that when he himself had stated that he was one of the coshare holders, without seeking partition, he could not be declared as absolute owner of the property and the court rather was constrained to observe that the complainant appeared to be habitual litigant who had filed the suit just for sake of it which amounted to abuse of process of law, thereby dismissing his case with cost of Rs. 25,000/.
13. Attention of this court was also drawn by Ld. counsel for petitioner to the action taken report on the complaints of complainant which were intimated to him in reply to RTI queries, though were not placed on record by the complainant himself, wherein it was noted that the statements of complainant and of the opposite party were recorded and complainant himself undertook in writing that there shall be no further quarrel on this matter and decision of the court shall be acceptable to him . It was submitted that the complainant himself having given the Crl. Rev. No.: 24/2014 10/12 statement in writing and after intimation with respect to the status of his complaints which had been filed, since no action was called for considering the pendency of civil suit, yet complainant preferred to file the complaint on wrong facts and by hiding the true facts before Ld. trial court.
14. As already observed, the action of petitioner in declining to initiate proceedings u/s 145/146 Cr.P.C. due to pendency of the civil suit not only was justified but was within the discharge of his duties. Rather initiation of said action as desired by the complainant despite status quo order passed by civil court may have violated the directions of law and in these circumstances insistence of complainant rather should be termed as seeking violation of law and not the compliance thereof, therefore besides action of petitioner not only being in diligence discharge of duties but was also under the colour of duty, thereby attracting the protection u/s 140 of DP Act as well as of section 197 Cr.P.C. , mandate of which provisions is for protection of police officials from unnecessary harassment for the acts done on duty and by permitting the proceedings to be run against the petitioner, in these circumstances would not only lead to abuse of legal system but also would have demoralizing affect on the police officials who otherwise have or tried to discharge their duties in diligent and dutiful manner. The order passed by Ld. trial court , in these circumstances, being not sustainable qua petitioner is accordingly set aside and instant revision petition filed by the petitioner is allowed. TCR Crl. Rev. No.: 24/2014 11/12 alongwith copy of this order be sent back to the trial court. Revision file be consigned to record room.
(SAVITA RAO) Additional Sessions Judge02 (Central) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 07.11.2014 Crl. Rev. No.: 24/2014 12/12