Delhi District Court
Ramesh Chander vs State Of Delhi on 14 December, 2015
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CR No.8/2015
Ramesh Chander,
S/o Sh. Ranpat Singh,
Presently Posted at:
Outer District (ACP, Delhi Police)
of SubDivision Prasant Vihar,
Office at:
PS North Rohini,
Delhi - 110085. .....Appellant.
Versus
1. State of Delhi
Govt. of NCT of Delhi
2. Devender
S/o Sh. Rajinder Singh,
R/o 131, DBlock, Ext.II,
Nangloi, Delhi110041. .....Respondents.
:J U D G M E N T:
1. Aggrieved by the order dated 27.11.2015 passed by Ld. MM08, West District, Tis Hazari Courts, Delhi in a complaint case bearing No. 33/01/12 PS Mundka titled as Devender Vs. Pradeep Goel & Ors. (hereinafter shall be referred as "impugned order"), whereby the present revisionist was summoned U/s 120B/384/506(i)/34 IPC, the revisionist has Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 1 of pages 14 preferred the instant revision petition interalia praying for setting aside the impugned summoning order qua the revisionist on the grounds mentioned in the petition itself.
2. In brief, the facts necessary for the disposal of instant petition are as under: "The respondent no.2 filed a criminal complaint under Section 200 Cr.P.C against the revisionist and others alleging therein that the complainant and one Sanjay Kumar jointly purchased a piece of land measuring 1 Bigha 8 Biswa from one Sh. Ved Prakash through his attorney vide Sale Deed dated 01.02.2012 and thereafter, mutation was also sanctioned and said piece of land was entered into revenue records of the particular village in their names. The complainant/respondent no.2 and alleged coowner Sanjay Kumar raised boundary wall, constructed one room, installed a hand pump and also got installed a iron gate with sign board of their names and phone number on the said plot. Allegedly on 05.05.2012 in the morning when complainant and coowner namely Sanjay Kumar reached at the abovesaid plot/land with masons and labourers, they were made to run away by 56 unknown goonda type elements, who tried to forcefully occupied their said plot. Accordingly, the complainant/respondent no.2 and coowner made a call to PCR and then one constable came from Mundka Police Station and told to the complainant to contact ASI Balwan Singh (as he was then) in Police Station Mundka as message of PCR Call was forwarded to the Police Station, Mundka. The complainant alongwith Sanjay Kumar reached at Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 2 of pages 14 the Police Station Mundka and met ASI Balwan Singh and allegedly shown their Sale Deed and other relevant documents and by showing the documents, ASI Balwan Singh was satisfied but at about 1.45 p.m, co owner namely Sanjay Kumar received a phone call from revisionist and they were called at the Police Station Mundka. After receiving the call, complainant/respondent no.2 alongwith coowner Sanjay Kumar went to the Police Station Mundka, where they were introduced with one person namely Pradeep Goel, who was already in the Police Station with 45 persons. It was further alleged by the complainant that then the revisionist Ramesh Chander (who was SHO of PS Mundka) while stating that plot belongs to Pradeep Goel asked him to handover the possession of the plot to him. Further complainant alleged in the complaint that he and co owner Sanjay Kumar submitted to SHO that the plot belongs to them and thereafter, they were forced to write that Pradeep Goel is in possession of the said plot and they had put their names and they have handed over the possession of the same to Pradeep Goel under pressure and on his dictation they wrote a writing stating that the plot in question belongs to Pradeep Goel and they have also handed over the key to Pradeep Goel and thereafter, they made complaint to higher authorities of Police. Accordingly, police officers and Pradeep Goel had committed the offence and complainant filed criminal complaint before the court of Ld. C.M.M.
3. After recording presummoning evidence, Ld. Trial Court has passed order of summoning dated 27.11.2014 by way of which revisionist and others were summoned U/s 120B/384/ 506(i)/34 IPC. It has been Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 3 of pages 14 added that the summoning order came into the knowledge of revisionist first time on 17.02.2015 when in the evening, summons were served upon him and thereafter, on 18.02.2015 revisionist appeared before Ld. Trial Court and obtained Bail and thereafter, applied for the certified copy of the impugned summoning order on 19.02.2015, which was made available to him only on 24.02.2015. It has been claimed that the impugned order is illegal and against the legal proposition and it required to be examined for its correctness and legality.
4. The notice of the petition was issued to the respondents and accordingly Ld. Addl. PP for the State accepted the notice on behalf of State/respondent no.1 and respondent no.2 made his appearance in person and made his submissions through his counsel.
5. I have heard the respective rival submissions of Ld. Counsel for the revisionist and of Ld. Counsel for respondent no.2. I have also heard Ld. Addl. PP for State on behalf of State/the respondent no.1 also.
6. Revisionist is assailing the impugned order on the following grounds:
(i). It has not been appreciated that the petitioner and ASI Balwan Singh, are the police officials and they are covered by the provisions of Delhi Police Act, 1978 and prosecution against them including impugned order for summoning is barred by Section 140 of Delhi Police Act.
(ii). As the complainant as well as the summoning order Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 4 of pages 14 dated 27.11.2014 neither speaks of any sanction nor about the required legal notice as provided under Section 140 of the Delhi Police Act and in the absence compliance of the mandatory statutory requirements of Section 140 of the Delhi Police Act, 1978, the prosecution of petitioner is barred, hence, the impugned order is liable to be quashed qua the petitioner.
(iii). Ld. Trial Court has wrongly held that there is no need of sanction under Section 197 of Cr.P.C as alleged act is not under the colour of duties of the petitioner. Since as per own stand of the complainant, he had given writing to the effect that the plot belongs to one Pradeep Goel, therefore, findings of Ld. Trial Court that any sanction is not required is totally perverse and illegal. Ld. Trial Court has arrived to the wrong conclusion that the police officials are guilty of offence U/s 383/506(i) IPC.
(iv). It has been claimed that the correct legal proposition has not been appreciated by Ld. Trail Court. It has not perused the revenue records attached with the complaint and has reached at a wrong conclusion that petitioner has put pressure upon the complainant to give a writing that plot belongs to Pradeep Goel, hence Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 5 of pages 14 impugned order is liable to be setaside. Moreover, if the contents of complaint are taken in consideration in totality even then the alleged act assigned to the petitioner was purely under the colour of his official duty.
(v). It has further claimed that if the impugned order has not been examined for its correctness and not quashed then there will be irreparable loss and injury to the petitioner and would amount to miscarriage of justice as impugned order is based on conjectures and surmises and without application of judicious mind.
(vi). Further Ld. Trial Court has failed to appreciate that there is clear bar under Section 197 Cr.P.C and under Section 140 of Delhi Police Act qua the petitioner and whatever has been done by the petitioner, the same has been done under the colour of his official duty and not in his individual capacity, therefore, it is clear beyond any doubt that the impugned order is liable to be set aside.
7. Having heard the rival submissions of both the sides and carefully perusing the entire material placed on record particularly the impugned order, contents of instant petition specially the grounds taken therein and also the record summoned from the Trial Court, I am of the considered opinion that the instant petition as filed by the petitioner/revisionist is liable Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 6 of pages 14 to succeed as the same is hit by the provisions of Section 197 Cr.P.C and under Section 140 of Delhi Police Act against the petitioner and whatever has been done by the petitioner has done the same under the colour of his official duty and not in his individual capacity.
8. Section 140 of Delhi Police Act bars the prosecution or a civil suit against the public servants, who has done any wrong under the colour of his duty or authority or in excess of any such duty or authority. Section 140 D.P. Act reads as under :
1. 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. In case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed. Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 7 of pages 14
3. The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender or amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.
9. Section 197 Cr.P.C reproduced 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 alleged offence employed, in connection with the affairs of a State, of the State Government.
(2). No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3). The State Government may, by notification, direct Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 8 of pages 14 that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that subsection will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. (4). The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
10. As per Section 140 of Delhi Police Act firstly, the prior sanction is required. Secondly, the prosecution or suit shall not be entertained more than 3 months after the date of act complained of. In proviso of 140 (1), it is provided that even in a case, if the previous sanction of the Administrator has been taken, in that case even the prosecution against such person may be entertained only within one year from the date of the offence.
11. Learned counsel for revisionist has submitted, thus, in the present case though the complaint has been filed within the stipulated period of time but the provisions of Section 140 of the Delhi Police Act has not been complied with as no sanction has been taken before filing the complaint against the petitioner. It is submitted that the Delhi Police Act, 1978 is a special law. The law on this issue is well settled in the case of Tata Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 9 of pages 14 Motors Pvt. Ltd. v. Pharmaceutical Products of India Ltd. & Anr. JT (2008) (9) SC 227 wherein the Hon'ble Apex Court has held that the special law shall prevail upon the general law.
12. Admittedly, at the time of committing the alleged offence, the petitioner was a Govt. Servant and he is still working as ACP in Delhi Police. Petitioner has been summoned vide the impugned order for the offences referred above in Para no.1 of this judgment. Ld. Counsel for revisionist has also relied upon a judgment of Hon'ble Supreme Court in R. Balakrishna Pillai v. State of Kerala, AIR 1996 Supreme Court 901 whereby the Law Commission in its 41st Report in Paragraph 15.123 while dealing with Section 197 Cr.P.C, as it then stood, observed as under: "It appears to us that protection under the section is needed as much after retirement of the public servant as before retirement. The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by S. 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecutions. It should be left to the Government to determine from that point of view that the question of the expediency of prosecuting any public servant".
13. In Para 8 of the judgment referred above, it is held that in so far as the requirement of sanction under Section 197 (1) of the Code is concerned in relation to the charge of criminal conspiracy that sanction Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 10 of pages 14 under Section 197 (1) of the Code is sinequanon. Therefore, the sanction under this provision is mandatory.
14. In this regard, Hon'ble Apex Court has settled law in Prof. Sumer Chand v. UOI & Ors AIR 1993 SC 2579 wherein it has been held as under: "Since the Act is a special law which prescribes a period of limitation different from the period prescribed in the Schedule to the Limitation Act for suits against persons governed by the Act in relation to matters covered by Section 140, by virtue of Section 29(2) of the Limitation Act, the period of limitation prescribed by Section 140 of the Act would be the period of limitation prescribed for such suits and not the period prescribed in the Schedule to the Limitation Act. ........... Having regard to the principles laid down in the aforementioned decisions of this Court on provisions contained in Section 161(1) of the Bombay Police Act, 1951 which are similar to those contained in Section 140(1) of the Act, we are of the view that the High Court was right in holding that the present case falls within the ambit of Section 140 of the Act. What is alleged against respondents 3 and 4 by the appellant in the plaint is that respondent 4, who was in charge of Mayapuri police post had registered a false, vexatious and malicious report against the appellant, and respondent 3, who was Station House Officer, P.S. Naraina, had filed the challan in the Court against appellant and other accused on the basis of the said report. The facts in the present case are similar to those in Virupaxappa Veerappa Kadampur v. State of Mysore (AIR 1963 SC 849) where the allegation was about the preparation of false panchnama and report of seizure of ganja. The said Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 11 of pages 14 action of the appellant in that case was held to be done under the colour of duty since it was the duty of Police Head Constable to prepare a panchnama and for that reason it was held that there was a nexus between the act complained and the statutory duty that the Police Head Constable was to perform. Similarly in the present case it was the duty of respondent 4, being incharge of Police Post Mayapuri, to record the report and so also it was the duty of respondent 3 the SHO of P.S. Naraina to file the challan in court. The acts complained of thus had a reasonable connection and nexus with the duties attached to the offices held by respondents 3 and 4. The acts complained of were, therefore, done under the colour of office of the said respondents and fell within the ambit of Section 140(1) of the Act. It is not disputed that if Section 140(1) is found applicable the suit filed by the appellant, as against the respondents, was barred by limitation having been filed after the expiry of three months and it could not be entertained against them."
15. Therefore, the acts in the instant case have reasonable connection and nexus with the duties of the office held by the petitioner. The acts, complained of are, therefore, done under the colour of duty and fell within the ambit of Section 140 (1) of the Act.
16. In Balvinder Singh Sodhi v. Mahender Singh (Inspector) 1997 VI AD (Delhi) 830 and Kiran Bedi v. NCT of Delhi & Anr 2001 DLS 51 HC, the Hon'ble High Court has taken the similar view.
17. Admittedly in the instant case, while handling the case mentioned above he allegedly committed the alleged offence as public servant. The Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 12 of pages 14 prosecuting authority was supposed to take the sanction as enumerated under Section 140 of Delhi Police Act, and under Section 197 (1) of the Code, which they failed to do.
18. Keeping the above discussion into view, I do not agree with the observation made by Ld. Trial Judge that the alleged offence committed by the petitioner was not a part of official duty and no sanction was required.
19. Accordingly, the instant revision petition is allowed and impugned order dated 27.11.2014 is hereby quashed qua the petitioner only.
20. TCR alongwith the copy of the judgment be sent to the court of Ld. MM concerned for information and proceeding further in the matter as per law against the other accused persons.
21. Revision file be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR1)
on 14 December, 2015) Addl. Sessions Judge/Special
th
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 13 of pages 14
CR No.8/2015
Ramesh Chander Vs. State & Anr.
14.12.2015
Present: Appellant in person.
Ms. Promila Singh, Ld. Substitute Addl. PP for the State/ respondent.
Proxy counsel for Ld. Counsel for respondent no.2 . Vide a separate judgment, revision petition of revisionist stands disposed off.
TCR alongwith the copy of the judgment be sent to the court of Ld. MM concerned for information and proceeding further in the matter as per law against the other accused persons.
Revision file be consigned to the Record Room after completion of necessary formalities.
(RAKESH KUMAR1) ASJ/Spl. Judge (NDPS) (West) 14.12.2015 Ramesh Chander & Ors. Vs. State & Anr. (CR No.8/2015) Page No. 14 of pages 14