Madhya Pradesh High Court
Lalit Kumar Kewat vs The State Of Madhya Pradesh on 22 March, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-1775-2013
(LALIT KUMAR KEWAT Vs THE STATE OF MADHYA PRADESH)
1
Jabalpur, Dated : 22-03-2018
Shri Sameer Seth, learned counsel for the applicant.
Shri Manish Awathi, learned G.A for the respondent/State
This petition under section 482 of Cr.PC has been filed for quashment sh of the proceeding of the S.T No. 213/2012 pending before the IInd Additional Session Jude, Aastha, District Sehore under section 307 e ad read with section 34 of the IPC and the impugned order dated 03/01/2012 passed in the aforesaid trial, whereby the applicantâs Pr application under section 197 of Cr.P.C was rejected.
2. Facts giving rise to this petition are that the applicant is working as a hy a Beat Guard in Forest Department and on behalf of the department fire arm have been given to him to secure forest area. On 21/03/2010 ad he along with one Naresh Patidar was on duty and during the night M was searching the forest area where the complainant was found in the suspicious circumstance indulging in cutting of forest trees and of stealing them, therefore the complainant was asked what was he rt doing there and was tried to catch hold him, he ran away, then the ou applicant fired on the complainant targeting his leg and complainant was injured. Later on complainant Shabhir Khan lodged in Police C Station Siddiqueganj, District Sehore where Crime No. 30/2010 under h ig section 307 read with section 34 of IPC was registered and the charge sheet was filed before the Judicial Magistrate First Class, Sehore and H committed the case before the Session court and trial is pending before the IInd Additional Session Judge, Aastha, District Sehore where on behalf of the applicant application under section 197 of Cr.P.C was filed on the ground that that he fired on the complainant in discharging his official duties with a view to prevent him from running away after committing the forest crime. About the incident the Sub Divisional Magistrate also enquired and came to the conclusion that the applicant has not fired intentionally with a view to commit crime but fired in discharging his official duties. In the circumstance, the applicant canât be prosecuted without sanction of the State Government under section 197 of Cr.P.C and order of taking cognizance against the applicant is contrary to law in such case the court has no jurisdiction to take cognizance of the offence or to try the case but learned Trial court without considering the facts and circumstances and evidence on record came to the conclusion that the act of the applicant was not bonafide and he is not entitled to get protection under section 197of Cr.P.C. Hence this petition has been filed to quash the proceeding.
3. Learned G.A for the respondent/State opposed the petition stating sh that there is no evidence that the complainant was really indulged in e commission of the offence of theft of forest produce or any offence ad relating to Forest Act. Hence there is no prima facie justification to Pr fire on the complainant and cause injury to him. The act of the applicant canât be said to be done in discharging his official duties a and prayed for its dismissal.
hy
4. Having considered the contentions of learned counsel for the ad parties and on perusal of record, there is no controversy that the M applicant was working as a Beat Guard in the employment of Forest Department and he was the public servant, who is entitled to get of protection under section 197 of Cr.P.C as per notification rt No.3/92/2001/10-1 dated 28/05/2004 the forest guard come in purview ou of the public servant who is entitle to get protection under section 197of the Cr.P.C. As per FIR and material available on record, it is C evident that there is no previous enmity of the applicant and the h complainant and there is no other oblique motive of the incident. The ig facts of the case shows that because the applicant have a suspicion H that the complainant was involved in the commission of forest crime or have intention to commit crime and when he was enquired and tried to catch hold the complainant he ran away then with a view to prevent the complainant to flee away fired on his leg. There was no intention to kill the complainant or cause any injury on any vital part with a view to kill him. The act of the applicant prima facie appears that it was done in discharging his official duties. However it may be said that there is negligence or lack of proper care or enquiry about the involvement of the complainant in the forest crime but merely on this ground, it canât be said that the applicant has not committed any act in discharging his official duties. The SDM enquired the matter and in his report dated 23/08/2010 given finding that the applicant fired on the complainant in discharging his official duties with a view to protect the forest property. Therefore, prima facie the applicant is entitled to get protection under the provision of Section 197 of Cr.P.C, The applicant canât be prosecuted or concerned trial court can take cognizance of the offence.
5. In this regard, Honâble the Apex Court in the case of State of Orissa Through Kumar Raghvendra Singh and others v. Ganesh Chandra, sh (2004) 8 SCC 40, in paragraph 7 has held as follows :-
e ad The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious Pr 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 a protection to public servants to ensure that they are not hy prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, ad to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain M limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official of 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 rt official duty, the excess will not be a sufficient ground to deprive ou the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence C contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public h servant acting or purporting to act as such in the discharge of his ig official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence H 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.
6. Similarly Honâble the Apex court in the case of Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi and another (2012) 12 SCC 72, after referring to various decisions pertaining to the police excess, summed-up the guidelines in paragraph 32 which is as follows :-
The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it. (K. Satwant Singh). The protection given under Section 197 of the Code 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, sh the excess will not be a sufficient ground to deprive the public servant of the protection. (Ganesh Chandra Jew). If the above tests are applied e to the facts of the present case, the police must get protection given ad under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be Pr inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in a cold blood.
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7. Undoubtedly alleged act comes under the purview of official act in ad discharging the official duties. Therefore, sanction of the State M Government is must. Thus, the proceeding initiated on the basis of the complaint filed by the complainant does not deserve to be continued of and it is against the law and intended to cause injustice to the rt applicant.
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8. In view of the aforesaid discussion, the applicant's petition deserves to be allowed. Hence it is allowed and the impugned order dated C 03/01/2012 is set aside and the proceeding of the S.T No. 213/2012 h pending before IInd Additional Session Judge, Aastha, District Sehore ig is also quashed so far it is related to applicant/accused. H A copy of this order be sent to the learned trial court concerned for information.
(J. P. GUPTA) JUDGE tarun Digitally signed by TARUN KUMAR SALUNKE Date: 2018.03.22 05:31:01 -07'00'