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2006 DIGILAW 946 (BOM)

Hasan s/o. Baldar Tadvi v. State of Maharashtra

2006-06-23

ANOOP V.MOHTA

body2006
JUDGMENT :- The petitioners-appellants have challenged the impugned order dated 06-05-1998 passed by 3rd Additional Sessions Judge, Jalgaon, thereby, rejected their application for quashing the prosecution and also for discharge under Rule 256 of Railway Protection Force Rules, 1987 (Force Rules). Therefore, present Revision Petition. 2. The petitioners were working in Bhusawal Railway Division as constables for providing security to Station Master at Savada, whenever' he carried cash to the Bank at Savada. Admittedly, the petitioners fall within the ambit of Section 2(c) of the Railway Protection Force Act, 1957 (Railway Force Act) which defines "member of the force means" a person appointed to the Force under this Act. The word "Force" means the Railway Protection Force constituted under Section 3. The said section provides that "There shall be constituted and maintained by the Central Government an armed Force of the union to be called the Railway Protection Force for the better protection and security of railway property. The words "railway property" includes any goods, money or valuable security, or animal, belonging to, or in the charge or possession of, a railway administration. As per provisions of this Act it is the duty of member of the Force, apart from other, to protect and safeguard the railway property and further to do any act conductive to the better protection and security of railway property. This Act further gives protection to the members of the Force through Section 20, which is reproduced as under: "20. Protection of Acts of members of the Force.- (1) In any suit or proceeding against any member of the Force for any act done by him in the discharge of his duties, it shall be lawful for him to plead that such act was done by him under the orders of a competent authority. (2) Any such plea may be proved by the production of the order directing the act, and if it is so proved, the member of the Force shall thereupon be discharged from any liability in respect of the act so done by him, notwithstanding any defect in the jurisdiction of the authority which issued such order. (2) Any such plea may be proved by the production of the order directing the act, and if it is so proved, the member of the Force shall thereupon be discharged from any liability in respect of the act so done by him, notwithstanding any defect in the jurisdiction of the authority which issued such order. (3) Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding." 3. The relevant Force Rules has a foundation of Section 21 of Railway Force Act. Force Rule 256 as relied by the parties is also reproduced below. "256. Protection where a member of the Force has opened fire: Whenever a member of the Force has opened fire in pursuance of his statutory duties of providing better protection and security to railway property and for matters connected therewith or in exercise of the right of defence of person or property, resulting in death or injury to the. other party, the result of the Magisterial or judicial inquiry instituted in this behalf shall be awaited. A member of the Forte shall ordinarily be prosecuted and or disciplinary proceedings instituted against him only when he is adversely commented upon in that inquiry or when the Court of Inquiry instituted under rule 265 finds his conduct suspicious. " Undisputedly, the petitioners are "members of force" as contemplated under the Force Act and Force Rules. The petitioners were on duty on the date of incident i.e. 31-03-1997. They were deputed to guard the cash which was carried in the rickshaw by the Assistant Station Master of Savada Railway Station. On the way to the Bank, one Bhagwan alongwith & an unkown person stopped the rickshaw and snatched the cash bag and ran away. The petitioners applicants therefore, had no option but to open a fire to protect the railway property. On the way to the Bank, one Bhagwan alongwith & an unkown person stopped the rickshaw and snatched the cash bag and ran away. The petitioners applicants therefore, had no option but to open a fire to protect the railway property. But unfortunately because of that firing the deceased Bhagwan, the complainant's son and the unknown person died on the spot. The complainant's son was sitting in the shop. The incident took place at 11.30 a.m. The petitioner had filed a F.I.R. at Savada Police Station at about 1.50 p.m. and informed about the incident as well as the death of three persons. This F.I.R. ultimately ended in "D" summary. There was no further challenge to the same. 4. The complainant, the father of the boy, who died accidentally, lodged a F.I.R. on the same day, against the petitioners-applicants. The trial commenced. Some of the witnesses have been examined. The petitioners have filed an application for quashing the said prosecution on 04-05-1998. That was rejected by observing "that could be decided in a trial". 5. The learned counsel appearing for the petitioners basically submitted that in view of Section 20 of the Force Act, there was no enquiry held and therefore, in absence of any enquiry there could not have been any prosecution or disciplinary action. Such an enquiry is a mandatory. It is only after due enquiry it could be assessed whether the Police force had opened the fire in pursuance of their statutory duty of providing better protection and security to railway property and for matters connected therein and/or in exercise of right of defence of property or person resulting in death or injury to the other party. The adverse comment in the said enquiry or in the Court enquiry if instituted, would be necessary to prosecute a member of force. There is no record of such enquiry being conducted by the Department. Learned A.P.P. also after going through the record accepted that contention. In Naresh Mohan Prasad and others Vs. State of Bihar and another reported in 2000 Criminal Law Journal 424, Patna High Court has considered the provisions of Section 20 of the Force Act and observed that non-fulfillment of mandatory provisions of sub-clause (3) before initiation of prosecution proceedings need to be quashed and it was quashed accordingly in that matter as there was no enquiry at all. 6. 6. In the present case the fact remains that the complaint has been lodged by the father of the boy, who died accidentally. An initiation of such proceedings in no way can be disturbed or halted by taking a shelter of provisions of Section 20 of Force Act and/or Force Rules 256 as contended. This is not the prosecution lodged by the Department after due enquiry. Therefore, this contention cannot be accepted to quash the proceedings. The learned Sessions Judge however, wrongly held and interpreted this provision to mean that Rule 265 is discretionary. The learned Judge is however, right in holding that there was no question of awaiting for a report of the enquiry and it is for the Court to direct an appropriate authority to start enquiry or to constitute a Court of Enquiry. There was no further reasoning required to interpret the word "ordinarily". As per Rule 265, if an enquiry is held and the report reflects adverse finding, "ordinarily" a member of the force shall be prosecuted or disciplinary proceedings will be instituted against him. In the present case in absence of such enquiry report, the above section as well as rule in no way support the case of the petitioner to quash the proceedings. 7. Another facet which goes to the root of the matter is whether the petitioners applicants were discharging their official duty. Section 197 sub-clause (2) of Cr.P.C. is reproduced as under :- "197(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 the official duty, except with the previous sanction of the Central Government. " The petitioners-applicants being members of the Armed Forces of the Union, therefore, fall within the ambit of this Section. The Learned A.P.P. after verifying the record submits that there is no material to show that whether any steps have been taken by the authorities to get sanction of the Central Government. The learned counsel appearing for the petitioner also contended that there was no such sanction obtained till this date. There is no material to support that even such steps were taken by the Department to obtain sanction as contemplated U/s.197 of Cr.P.C. 8. The Apex Court in Jayasingh Vs. The learned counsel appearing for the petitioner also contended that there was no such sanction obtained till this date. There is no material to support that even such steps were taken by the Department to obtain sanction as contemplated U/s.197 of Cr.P.C. 8. The Apex Court in Jayasingh Vs. K. K. Velayutham and another reported in 2006(4) SCALE 591 , after considering the provisions of Section 197 Cr.P.C. has explained the word "official duty" in para 17. Para 17 is reproduced as under: "17. Yet again, in Rakesh Kumar Mishra Vs. State of Bihar and others [ (2006)1 SCC 557 , this Court held: "Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty." The Apex Court in that case has maintained the order passed by the High Court of discharging the accused-appellants therein, as admittedly, the sanction as envisaged U/s.197 of Cr.P.C., was not obtained. 9. In the present case admittedly no sanction has been obtained till this date. There is nothing to demonstrate that any steps were taken by the Department to get the sanction against the petitioners who are the members of the Armed Force, even at any stage. 10. In Sankaran Moitra Vs. Sadhna Das and another reported in 2006 AIR SCW 1695, The Apex Court has further observed that the prosecution cannot be launched without sanction as contemplated. This is a condition precedent, though question may arise necessarily not at inception but even at subsequent stage. It is further observed that decision on this question cannot be postponed. In that case also the petitioners-appellants were on official duty. The deceased was beaten to death by the Police Constable alleged to be at the instance of the appellants. The appellants in that case, acted during the performance of his duty. Therefore, sanction U/s.197(1) was necessary for the prosecution. 11. Based on the above facts and incident referred, the sanction as envisaged U/ s.197 is a must. The deceased was beaten to death by the Police Constable alleged to be at the instance of the appellants. The appellants in that case, acted during the performance of his duty. Therefore, sanction U/s.197(1) was necessary for the prosecution. 11. Based on the above facts and incident referred, the sanction as envisaged U/ s.197 is a must. In absence of any material pointed out by the parties, it is clear that no steps have been taken by the Department to obtain sanction against the petitioners who are the "members of the Armed Force" as per the Force Act, 1957. Therefore, without going further into the controversy and in view of the Apex Court decision in Jayasingh (supra), I am inclined to entertain the present Revision Application which has been filed U/ss.397, 401 read with Section 482 of Cr.P.C. Such prosecution for want of permission therefore, need not be proceeded further. 12. It is necessary to mention here that the present petition is pending for final hearing since 1998. Because of an interim order dt.2205-1998 the whole proceeding of Sessions Case No.121/97 has been stayed. This lapse of time is another facet which goes in support of the petitioner. 13. For the above reasons, the impugned order of Sessions Judge dated 06-051998 is quashed and set aside. The application Exh.36 is allowed. The proceeding of Sessions Case No.121/97 is quashed and set aside. The Criminal Revision Application is allowed in terms of prayer clauses (B) and (C). No order as to costs. Revision application allowed.