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2004 DIGILAW 326 (JK)

Shakti Kumar Pathak v. Rattan Lal Sharma

2004-11-25

S.K.GUPTA

body2004
In invoking the provisions of section 561-A Cr.P.C, the petitioner, Shakti Kumar Pathak has sought quashment of criminal proceedings initiated against him by the Court of learned Sub-Judge, Judicial Magistrate Ist Class, Katra, on a complaint filed by the respondent, Rattan Lal Sharma. 2. The factual matrix giving rise to the proceedings may be stated thus; 3. Rattan Lal Sharma has filed a complaint against Shakti Kumar Pathak, Dy. S.P. Bhawan and Shiv Raj Singh, S.D.M. Bhawan, in the Court of learned Sub-Judge, Judicial Magistrate Ist Class, Katra, in alleging that he is an employee of one Sh. Subash Chander Gupta, Proprietor of Tridev Maharani Bhaint Bhander Shop No. 62, at Darbar Shri Mata Vaishno Devi Katra. It is further stated in the complaint that Shiv Raj singh, S.D.M. Bhawan, accused No.2, has been causing harassment in connivance with Shakti Kumar Pathak, Dy. S.P.Bhawan to the complainant and other employees engaged by the owner to help the running of the shop for the last one year. It is further stated that the goods sold at the shop are brought daily on 30 to 40 mules and it takes atleast _ hours time for unloading the mules and to arrange the goods in the shop, but the accused forces the complainant to complete the unloading within a short time of one hour which is practically impossible and thus causes harassment. They (accused persons) also take the complainant and other employees in the Police Station, Bhawan, and keep them there in wrongful confinement for 5 to 6 hours, and also use to call abuses, besides causing physical chastisement. 4. It is further alleged that the petitioner alongwith another accused came in the Shop of the complainant and took him to the Police Station, Bhawan, and gave a beating with fists and legs. The accused further stated to have told the complainant of taking the monthly payment form all the shop keepers at Bhawan and demanded Rs. 50,000/- per month from him also, and in case of default sell the goods on no profit, no loss basis to which he replied that the license fees of Rupees One lac daily is paid by the Proprietor to the Shrine Board. 50,000/- per month from him also, and in case of default sell the goods on no profit, no loss basis to which he replied that the license fees of Rupees One lac daily is paid by the Proprietor to the Shrine Board. The complainant further stated that when the goods are purchased from the market and 65 employees working in the shop are also paid their salary then how the goods could be sold on no profit and no loss basis. The accused, however, when not satisfied by his reply again bet him and started calling bad abuses to the complainant and Proprietor of the shop in starting that when his Proprietor can pay Rs.50 lacs as income tax to the Government, why cannot he pay Rs 50,000/- each to the accused persons. The complainant further stated that he was kept in wrongful confinement for six hours by the accused in the Police Station Bhawan without any justification who also gave beating, threatened and terrorized him which led him to file complaint in the Court of learned Sub-Judge, Judicial Magistrate, Ist Class, Katra. The learned Magistrate after perusing allegations made in the complaint and recording the preliminary statements of the complainant and his witness took cognizance for the offences under sections 347/352/504/427 RPC against him on 9.4.2004 alone and dismissed the complaint against Sh. Shiv Singh, S.D.M. Bhawan, accused No.2, for want of prima-facie evidence of his involvement in the case. 5. Mrs. Sindhu Sharma, learned counsel appearing for the petitioner submits that taking cognizance and issuing process against the petitioners by the Magistrate is an abuse of the process of the Court and, therefore, liable to be quashed by this Court in exercise of its inherent powers. She further submitted that allegations made in the complaint are so vague and void that on the basis of which one cannot reach a conclusion that there are sufficient grounds for proceedings against the petitioner. It is further contended that on the basis of same allegations, process has been issued against the petitioner, whereas complaint has been dismissed against Sh. Shiv Raj Singh, S.D.M. Bhawan. It is again an abuse of the process of the Court, as the evidence in one case could not be believed for one and rejected against other. It is further contended that on the basis of same allegations, process has been issued against the petitioner, whereas complaint has been dismissed against Sh. Shiv Raj Singh, S.D.M. Bhawan. It is again an abuse of the process of the Court, as the evidence in one case could not be believed for one and rejected against other. That the allegations made in the complaint against the petitioner do not disclose the commission of any offence and, as such, cognizance taken by the trial Court in issuing process against the petitioner is not warranted under law. 6. Further submission of Mrs. Sindhu Sharma, learned counsel appearing for the petitioner is that the petitioner is a Dy. Superintendent of Police and any arrest made by him was in the discharge of his official duties and, therefore, without the sanction of the State Government under section 197 Cr.P.C, no prosecution against him could be launched which renders the order passed by the trial Court without jurisdiction. Even the ingredients of the offences in which the process has been issued against the accused are not made out from the complaint as well as statement of the complainant and his witness recorded by the Magistrate and, therefore, the order impugned and the criminal proceedings taken against the petitioner deserve to be quashed. 7. I have heard the learned counsel appearing for the respective parties and also gone through the relevant provisions of law touching the matter in controversy. 8. As regards the first contention raised by Mrs. Sindhu Sharma, learned counsel that the facts alleged in the complaint do not disclose the commission of offence against the petitioner, it is significant to point out that where factual foundations for the offence have been laid down in the complaint, the High Court should not hasten to quash the criminal proceedings merely on the premises that one or two ingredients have not been stated with the details. The revisional or inherent powers for quashing the proceedings at the initial stage can be exercised only where allegation made in the complaint or the first information report do not prima-facie disclose the commission of an offence or the allegations are so absurd and inherently improper that on the basis of which no prudent person could have reached a just conclusion that there were sufficient grounds in proceeding against the accused or where there is an express legal bar engrafted in any provisions of the Code or any other Statue to the institution and continuance of the criminal proceedings or where a criminal proceeding is manifestly actuated with malafide and has been initiated maliciously with the ulterior motive for wrecking vengeance on the accused. Applying the aforesaid tests in the present case, it cannot be said that the complaint filed by the respondent did not disclose the commission of an offence or there existed any other circumstance which can be made the basis for quashing the proceedings. In fact, the allegations made in the complaint require adjudication and the complaint could not have been aborted in the manner submitted by Mrs. Sindhu Sharma, Advocate appearing for the petitioner. 9. The main thrust of the arguments advanced by Mrs. Sindhu Sharma, petitioners Advocate is that before cognizance could be taken of the complaint, it was required on the part of the learned Magistrate to address himself whether the provisions of Section 197 Cr.P.C are attracted or not and the facts of the case are such where they are operative. Her further submission is that the legal requirement of prior sanction is lacking and as such the cognizance of the complaint is per se illegal. 10. In controverting this contention, Mr. J.P.Singh, learned counsel appearing for the respondent submitted that inherent powers of the High Court to quash the criminal proceedings should be exercised sparingly in view of the guidelines given by the Supreme Court in catena of cases. It is further submitted that it would not be justified in evaluating the genuineness and reliability of allegations made in the complaint, in exercise of the inherent powers at the initial stage of the proceedings, of taking cognizance by the Magistrate based on the averments made in the complaint and the preliminary supporting evidence recorded in this behalf. Mr. It is further submitted that it would not be justified in evaluating the genuineness and reliability of allegations made in the complaint, in exercise of the inherent powers at the initial stage of the proceedings, of taking cognizance by the Magistrate based on the averments made in the complaint and the preliminary supporting evidence recorded in this behalf. Mr. J.P.Singh, learned counsel further submitted that sanction for launching the prosecution against a public servant is required only whether act is done in discharge or purported discharge of his official duty. Further submission of Mr. J.P.Singh, respondents Advocate is that offence against the Police Officer in this case is that he kept the complainant in wrongful confinement and further subjected him to physical chastisement, besides demanding illegal gratification for carrying and un-loading the goods to their shop for a long time, which was not an act connected in the discharge of the official duty. That no question of sanction can arise under section 197 Cr.P.C, unless the act complained of is an offence done while discharging official duty. The only point for determination is whether it was committed in the discharge of official duty. His further submission is that there must be a reasonable connection between the act and the official duty. 11. Coming to the facts of the case in hand, it is manifest that the petitioner who happens to be a Police Officer is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. It is stated in the complaint that complainant was taken to the Police Station, Bhawan and kept in wrongful confinement without any justification, hurled filthy abuses and given merciless beating. In such circumstance, it cannot be held that the acts complained by the respondent against the petitioner have a reasonable nexus with the official duty of the petitioner. It, therefore, follows that the petitioner is entitled to the immunity from criminal proceedings without sanction provided under Section 197, Cr.P.C. However, a similar question came for consideration before the Apex Court in case Raj Kishor Roy v. Kamleshwar Pandey, AIR, 2002 SC 2861 and was held as under; "In this case, as indicated above, the complaint was that the Ist Respondent had falsely implicated the Appellant and his brother in order to teach them a lesson for not paying anything to him. The compliant was that the Ist Respondent had brought illegal weapon and catridges and falsely shown them to have been recovered from the Appellant and his brother. The High Court was not right in saying that even if these facts are true then also the case would come within the purview of Sec.197 Cr.P.C. The question whether these acts were committed/ and/or whether Ist Respondent acted in discharge of his duties could not have been decided in this summary fashion. This is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in the official course of his duty. The question whether the Ist Respondent acted in the course of performance of duties and/or whether the defence is pretended or fanciful can only be examined during the course of trial. In our view, in this case the question of sanction should be left open to be decided in the main judgement which may be delivered upon conclusion of trial." 12. Relying on the ratio of the aforesaid judgment, I do not find any infirmity in the order dated 08.04.2004 passed by the trial Court in taking cognizance of the complaint and issuing process against the petitioner so as to result in the abuse of the process of the Court necessitating the exercise of inherent powers of the Court under section-561-A Cr.P.C. 13. Consequently, the petition possessing no merit is, accordingly, dismissed. 14. Record of the trial Court be remitted back forthwith. Parties through their counsel are directed to appear before the trial Court on 20.12.2004.