Madhya Pradesh High Court
Devendra Pratapsingh Rajput vs The State Of Madhya Pradesh on 6 January, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SB: HON'BLE SHRI JUSTICE J.P. GUPTA
M.Cr.C.No.6253 / 2010
Devendra Pratap Singh Rajput
Vs.
State of M.P. and another
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For Petitioner : Shri Manish Datt, learned
Senior Advocate
with Shri Pawan
Gujar, Advocate.
For Respondent / State : Shri Amit
Pandey, PL
For Respondent no.2 : Shri Beerendra
Kumar
Upadhyay,
Advocate
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ORDER
(Delivered on 06.01.2017) This petition under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner for quashment of the order dated 31.5.2010 passed by learned Revisional court in Criminal revision no. 86/10 whereby learned Revisional court dismissed the revision preferred by the petitioner against the order of the trial court dated 16.4.2010 whereby cognizance has been taken against the petitioner for the offence punishable under sections 294, 456, 323, 166, 427 and 506 of the IPC on the complaint filed by the respondent no. 2 / complainant. Simultaneously, learned Revisional court confirmed the rejection order passed by the trial court whereby the application filed under section 197 Cr.P.C. by the petitioner has been rejected.
2. In brief, the facts of the case are that the petitioner is a Police officer posted as S.D.O. (P), Itarsi, District Hoshangabad, against him, respondent no. 2 filed a complaint alleging that on 18.6.2008 the petitioner along with near about 25 police personnel at about 2 a.m. came at her house and asked about her sons. When, her husband replied that sons are not in the house and he will send them in the morning to the police station then the petitioner slapped the complainant's husband. When, the complainant intervened saying that her husband is suffering from heart ailment, he should not be beaten then the petitioner used filthy language and also slapped her. Thereafter, the petitioner entered into the house and took away with him motorcycle bearing registration no.05-MA-6788 and one generator. About this conduct of the petitioner, a complaint was made by the respondent no. 2 to the concerned officer and authority and in the last, on 26.12.2008 the complaint was filed before the J.M.F.C., Itarsi and after taking statement of the complainant and the witnesses, the learned Magistrate took cognizance for the offence under sections 294, 456, 323, 166, 427 and 506 of the IPC.
3. Thereafter, the petitioner submitted an application under Section 197 Cr.P.C. before the learned J.M.F.C. concerned, stating that at the time of alleged incident, he went to the house of the complainant to arrest her sons in connection with crime no. 119/2008 registered at Police station Pathrouta, Itarsi under section 147, 148, 149, 307, 332 and 353 of the IPC and under section 25 of the Arms Act. All the sons of the complainant had criminal antecedents. They are hardened criminals, therefore, with a view to arrest them, the petitioner went to the house of the culprits and nothing alleged act was done with the complainant and her husband. Just to counter blast and harass the police officer, vexatious and frivolous complaint has been made. The act as stated has been done during discharging official duty. Hence, the provisions of Section 197 Cr.P.C. are attracted and for prosecution of the petitioner, sanction of the State Government is required and without obtaining prior sanction, learned court of J.M.F.C. has no jurisdiction and power to take cognizance against him. Hence, the complaint be dismissed but learned court below rejected the application. Thereafter, revision was filed by the petitioner which was also rejected by the learned Additional Sessions Judge. Hence, this petition has been filed on the ground that the order of taking cognizance on the said complaint is improper, bad in law and incorrect as against the petitioner no offence is made out as there is no evidence on record. Thus, the complaint has been filed with an oblique motive. Apart from it, it appears that the alleged act in discharging his official duty by the petitioner is in furtherance of the investigation of crime no. 119/2008, registered at P.S. Pathrouta, against the sons of the complainant, therefore, sanction under section 197 Cr.P.C. is must and without sanction, the concerned J.M.F.C. has no jurisdiction to proceed with the complaint. Hence, the proceedings be quashed.
4. On behalf of the respondent no. 2 / complainant, reply has been submitted, in which, it has been submitted that her sons are not hardened criminals and there is nothing on record against them to connect them with the crime no. 119/08 registered at P.S. Pathrouta and her sons have been made accused on the basis of memorandum of co-accused which is not admissible in evidence and the sons of the respondent no.2 have been acquitted by the court of competent jurisdiction. However, it is stated that the petitioner was not investigating officer of the case. He had no reason to go to the house of the respondent / complainant in the search of her sons and the allegations made against the petitioner are correct and discloses the commission of offence and the complaint is supported by the statement of her husband and other independent witnesses and the alleged act is not related to within the purview of discharge of his official duty, therefore, the sanction under section 197 Cr.P.C. is not required. Rejection of the application by the learned J.M.F.C. and the Revisional Court as well is in accordance with law. Hence, the petition be dismissed.
5. Having considered the rival contentions of learned counsel for the parties and on perusal of the record, in this petition following questions emerges for consideration :-
(I) Whether the petitioner cannot be prosecuted without sanction under section 197 Cr.P.C. on the complaint lodged by the respondent no. 2 against him ?
(ii). Whether the complaint is frivolous, vexatious and maliciously filed against the petitioner ?
6. On perusal of the record, prima facie it appears that on the relevant date, on 18.6.2008 the petitioner and other police personnel were discharging their official duties in the search of accused persons in connection with crime no. 119/08 registered at Police Station Pathrouta, Itarsi and went at the house of the complainant in the search of her sons and later- on, on 21.6.2008 complainant's son Dinesh was arrested in this case and one sword was seized from him on the basis of his memorandum.
7. On the basis of the aforesaid facts, learned counsel for the petitioner has submitted that the alleged act of slapping the complainant and her husband and taking of motorcycle and generator were committed at the time when the petitioner was discharging his official duty and even it is deemed that the act of the petitioner was in excess of his official duty, he is entitled to protection under section 197 Cr.P.C. and in the present case, no such sanction has been taken. Hence, the proceedings are required to be quashed. In this regard, learned counsel has placed reliance on the various judgment of the Apex Court. Firstly, the learned counsel has placed reliance on a judgment delivered in the case of Sankaran Moitra vs. Sadhna Das and Anr. AIR 2006 SC 1599, in which, it has been held that "obviously, it was part of the duty of the appellant to prevent any beach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore merges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for ill-treatment and he was beaten up by a Police Constable at the instance of the appellant and the Officer-in-charge of the Police station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. The entries in the General Diary remain to be prove. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract S. 197 Cr.P.C. Thus, sanction under S. 197 Cr.P.C. (1) would be necessary in this case. Thus, for want of sanction the prosecution must be quashed at this stage". In the case of D.T. Virupakshappa vs. C. Subash, (2015) 12 SCC 231, it has been held that "the appellant has exercised his power during investigation of criminal case and assaulted the respondent in order to extract some information with regard to death of one S and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged act has an essential connection with the discharge of the official duty. In such case, sanction under section 197 Cr.P.C. is necessary, the Magistrate could not have taken cognizance of the case without the previous sanction of the State Government". Similarly, in the case of Amal Kumar Jha vs. State of Chhattisgarh and another (2016) 6 SCC 734, in which, the Apex court has held that "in the instant case, the appellant was In-charge of a hospital, where operation of deceased was conducted. Allegation against appellant was of omission in discharge of official duty in not providing government vehicle for shifting patient from Primary Health Centre to District Hospital, and patient died for want of treatment, whereas appellant himself travelled in vehicle in question for attending monthly official meeting at District Headquarters. Against the appellant FIR was lodged and ultimately, charge under S. 304-A IPC was framed against appellant and application for discharge on the ground of requirement of previous sanction under section 197 Cr.P.C. was rejected and the High court affirmed the aforesaid order. The order of the High court is set aside as it was an act or omission in discharge of official duty; sanction to prosecute was necessary."
8. Learned counsel for the petitioner has also placed reliance on various judgments of the different High Courts, firstly delivered by Punjab and Haryana High Court in the case of Dr. Sumitra Devi vs. Manjit Singh Ahlawat and others, 2007 Cri.L.J, 3827, in which, it has been held that "the respondents being police officers had gone to house of the petitioner, used criminal force, given blows with danda, abused and threatened to kill her besides committing theft. Respondents had gone to house of petitioner as Police Officer in performance of official duties to arrest petitioner and not in individual capacity. Hence, their acts were very well connected with their official duties. Sanction under S. 197 Cr.P.C. is must before starting prosecution". Further reliance is placed on a judgment of the Gujarat High court in the case of Karnalsingh Gill and another vs. State of Gujarat and another, 1988 Cri.L.J. 100, in which, it is held that "while checking trucks and organizing anti-evasion activities by the Sales Tax officers as per directions of higher authorities it was alleged in the complaint that the truck was stopped, complainant was abused and slapped and RTO papers with regard to the truck were taken away. The latter act of the officers was directly concerned or reasonably connected with the official duties as to be inseparable from them, and the action was in discharge of their official duties or at least in the purported discharge of their official duties, and therefore, the officers concerned were entitled to get protection under S. 197 Cr.P.C.". In the case of Dr. Ravindra vs. V.K. Panwar, 1988 Cri.L.J, 192, this High Court has held that "Additional Supdt. Of Police, in charge of management of Simhastha fair, slapping the petitioner while latter came on prohibited route on his motorcycle. Petitioner filed a complaint under S. 323, IPC is not maintainable in absence of sanction under S. 197 Cr.P.C." In the case of Ram Adhar Yadav vs. Ramchandra Misra and another, 1992 Cri.L.J. 2216 Allahabad High Court has held that "in the case of maltreatment and taking away property of complainant by police during discharge of official duty, prior sanction for prosecution is necessary". In the case of Nirupama Dey vs. Chaitanya Dalua and another, 2004 Cri.L.J.704, Orissa High Court has held that "fact showing police officers entered into house of complainant while discharging their official duty and alleged act committed by them were in due discharge of their duty, sanction is necessary".
9. Learned counsel for the respondent no. 2 / complainant has also placed reliance on a judgment of the Apex court in the case of Choudhary Parveen Sultana vs. State of West Bengal and another, AIR 2009 SC 1404, in which, it has been held that "all acts done by a pubic servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. The underlying object of Section 197 Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/ her against frivolous, vexatious or false prosecution initiated with the man object of causing embarrassment and harassment to the said official. However, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot clam the protection of S. 197 Cr.P.C. and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned. Where the Deputy Superintendent of Police was alleged to have committed acts of extortion and criminal intimidation while conducting investigation of case the acts cannot be said to be part of the duties of the Investigating officer while investigating an offence entitling him to get protection of S. 197 Cr.P.C..â
10. In the aforesaid background of the legal pronouncements, if the present case of the petitioner is seen, it is found that nothing has brought on record before this court which establishes the fact that on the relevant date of incident, on 18.6.2008, the complainant and her husband or any of their son was required to be arrested in crime no.119/08 registered at P.S. Pathrouta as the FIR was against unknown persons and on what ground or information, complainant's son was required to be arrested, however, later-on, on 21.6.2010 complainant's son Dinesh was arrested and one sword was also seized from him. So far as criminal antecedents of the complainant's son are concerned that is not relevant in this case as it is specific case of the petitioner that he went to the house of the complainant for the purpose of making arrest in crime no. 119/08 registered at P.S. Pathrouta. When the complainant's sons were not found in the house, the complainant and her husband told the petitioner that their sons are not in the house. Thereafter, abusing and slapping by the petitioner to the complainant, who is a lady and her husband who was not well, cannot be considered to be an act committed in discharging his official duty by a senior police officer like the petitioner. Being a senior police officer, it is not expected from him to behave in such manner with the innocent persons during investigation who were not required in any criminal case. The act of the petitioner to mishandle, dishonour and treat them in-humanitarian under the clock of police duty cannot be considered to be part of his official duty. It is a clear cut case of misuse or abuse of power vested to the public servant as the law laid down by the Apex court in the case of Choudhary Parveen Sultana (supra). In the present case, it cannot be held that the alleged act committed by the petitioner in the course of discharge of his official duty. Therefore, sanction under section 197 Cr.P.C. is not required and on this ground, proceedings against the petitioner cannot be said to be bad in law.
11. On behalf of the petitioner it is also submitted that the complaint is a counter blast of the action taken against the son of the respondent no. 2 / complainant and the complaint was maliciously filed on 26.12.2008 and no explanation has been given for filing the delayed complaint and earlier at the time of filing of the application for getting motorcycle on Supurdaginama and making complaint to the Collector regarding the incident of 19.6.2010 for taking goods of Panthela forcibly under the instructions of the Municipality, no complaint was made against the petitioner. This circumstance shows that the complaint is filed after thought.
12. In this case on record no copy of the application alleged to have been submitted by the complainant for getting the motorcycle on Supurdaginama is available. Similarly, authenticated copy of the complaint allegedly made by the complainant to the Collector regarding taking property of his son, unauthorizedly by the Municipality relating to Panthela is also not on record. Hence, at this stage it cannot be said that any complaint was made by the complainant before any authority and she remained silent regarding the allegation. But it appears that the complaint has been made after six months of the alleged incident and no explanation has been given about criminal record relating to the complainant's sons Ashok and Durjan which may show that they are habitual criminals and another accused Dinesh was arrested in the aforesaid crime no. 119/08. In the aforesaid circumstances, it may be possible that the complaint was filed to take revenge with the police officer but merely on the possibility or suspicion, proceedings initiated against the petitioner on the complaint cannot be quashed under section 482 of Cr.P.C. specially when there are so many factual aspects of the case which are required to be proved in defence by the petitioner. At the stage of initiation of cognizance of any offence, only prima facie credibility or reliability is required to be considered and where it appears that the allegations are inherently improbable and patently appears to be mala fide, proceedings may be quashed by exercising powers under section 482 of Cr.P.C. by this court. This is not a case of such nature.
13. Hence, in view of this court, this is not a case in which the aforesaid powers are required to be exercised. Hence, this petition is dismissed.
(J. P. GUPTA) JUDGE JP