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Rajasthan High Court · body

2007 DIGILAW 1348 (RAJ)

Ram Swaroop Sharma v. State of Rajasthan

2007-07-18

R.S.CHAUHAN

body2007
ORDER The petitioner, a S. H. O. at the relevant time, has challenged the continuation of the criminal proceedings against him, and the order of cognizance dated 27-9-1994 as well as order dated 18-11-1997 passed by the learned Munsif and Judicial Magistrate No. 12, Jaipur City, Jaipur whereby the learned Magistrate had dismissed the petitioner's application under Sec. 197 of the Criminal Procedure Code ('the Code' for short). 2. The brief facts of the case are that the respondent No. 1, Radha Raman Kalani alleged that he has sent two reports to P. S. Ashok Nagar on 27-5-1993. However, the police did not register any formal FIR on the said reports. Simultaneously, on the same day, a FIR was registered against the respondent No. 1, Mr. Kalani, being FIR No. 208/1993, for offences under Sections 406 and 420, I. P. C. Subsequently on 3-7-1993, Mr. Kalani lodged a complaint against Sh. R. C. Daga and twenty others in the Court of learned Munsif and Judicial Magistrate No. 12, Jaipur City wherein he had alleged that he had purchased two plots, B-2 and B-3, measuring 400 sq. yds. from Buniyadi Vikas Grah Nirman Sahkari Samiti, of which Sh. Daga and one Padam Singh Kothari were the President and the Secretary respectively. The consideration for the purchase was Rs. 12,000/-. Out of which, on 9-4-1988, he had paid them Rs. 3105/-. However, so far the possession of the plots has not been given to him. On the basis of this complaint, vide order dated 8-7-1993 the learned Magistrate called for the report from S. H. O., P. S. Ashok Nagar under Section 210 of the Code. It is further alleged that the petitioner while submitting the report, had used defamatory language with regard to Mr. Kalani. In particular, he had written in the report that Mr. Kalani happens to be "Dhokebaz" and "Chalak Kism Ka Apradhi". Therefore, on 8-3-1994, Mr. Kalani filed a complaint before the learned Magistrate for offence under Sec. 500, I. P. C. against the petitioner. The learned Magistrate examined Mr. Kalani under Section 200 of the Code of vide order dated 27-9-1994 took cognizance. On 30-5-1997, the petitioner filed an application under Section 197 of the Code wherein he claimed the protection of the said property. However, vide order dated 18-11-1997, the learned Magistrate dismissed the said application. Hence, this petition before this Court. 3. Mr. Kalani under Section 200 of the Code of vide order dated 27-9-1994 took cognizance. On 30-5-1997, the petitioner filed an application under Section 197 of the Code wherein he claimed the protection of the said property. However, vide order dated 18-11-1997, the learned Magistrate dismissed the said application. Hence, this petition before this Court. 3. Mr. B. L. Mandhana, the learned counsel for the respondent No. 1 has raised preliminary objection about the maintainability of the present petition before this Court. According to the counsel, in case of disputed question of facts, petition under Section 482 of the Code is not maintainable. According to Mr. Mandhana, the petitioner ought to have filed a revision petition and should not have invoked the inherent power of this Court. Before dealing with other contentions of the learned counsels, suffice it to say that the preliminary objection is unsustainable. For, in any, lis between the parties, there is bound to be disputed question of facts. Moreover, there is no prohibition contained in Sec. 482 of the Code which prescribes that the petition under Sec. 482 of the Code is not maintainable in case of disputed question of facts. Therefore, the preliminary objection raised by the learned counsels deserves to be rejected. 4. Mr. M. M. Mehrishi, the learned counsel for the petitioner has raised three fold contentions before this Court; firstly, that vide notification dated July 31, 1974 published in the Rajasthan Gazette, extraordinary on August 2, 1974 "while exercising its power under sub-section (3) of Section 197 of the Code, the State Government has extended the benefit of sub-section (2) of Section 197 of the Code to the police officials, of all ranks, charged with the maintenance of public order, wherever they may be serving." Therefore, according to the learned counsel, the Court is prevented from taking cognizance against the police officer, in case the action complained about, has been done in discharge of public duty, as the notification extends the benefit of Section 197 of the Code to the Police Officer. Secondly, the action of the petitioner falls within fifth exception contained in Section 499 of the Indian Penal Code. Thirdly, the petitioner's action was in discharge of his official duty as SHO. Hence the provision of Sec. 197 of the Code has to be followed. Secondly, the action of the petitioner falls within fifth exception contained in Section 499 of the Indian Penal Code. Thirdly, the petitioner's action was in discharge of his official duty as SHO. Hence the provision of Sec. 197 of the Code has to be followed. In order to support his submission, the learned counsel for the petitioner has relied upon the case of Rizwan Ahmed Javed Shaikh and Ors. v. Jammal Patel and Ors. (2001 Cr LR (SC) 542) : (2001 Cri LJ 2897). 5. On the other hand, Mr. B. L. Mandhana, the learned counsel for the respondent No. 1 has argued that Section 197 of the Code is inapplicable in the present case as the petitioner is removed by the I. G. whereas as per Section 197 of the Code, the public servant should be removed only by the State Government. Secondly that the petitioner was not charged with the maintenance of public order. According to the learned counsel for the petitioner, a distinction has to be made between the "public order" and "law and order". In order to support his contention, the learned counsel has relied on the case of Smt. Pavani v. Mustak Ali and Anr. (1998 (2) RLR 294). 6. We have heard both the learned counsels and have perused the impugned orders and have gone through the record of the case. 7. Section 197 of the Code is as under : S. 197. (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. *[Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted;] (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 that the provisions of sub-section (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 sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. **[(3-A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty/during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3-a) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.] (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." 8. A bare perusal of the above provision reveals that sub-section (1) does require that the public servant should be removed only by the Government and not otherwise. However, no such requirement has been laid down in sub-sections (2) and (3). Being a member of the police force, the petitioner falls under sub-section (3) and not under sub-section (1). Therefore, Mr. Mandhana's contention that since the petitioner is removed by an authority other than the State Government, therefore, the protection of Section 197 of the Code is unavailable to him, is unsustainable. 9. Sub-section (3) grants power to the Government to extend the benefit of the bar contained in sub-section (2) to the Members of the force charged with the maintenance of public order as may be specified therein. The notification dated July 31, 1974 is as under : In exercise of the powers conferred upon it under sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973, the State Government hereby direct that the provisions of sub-section (2) of the said section shall apply to police officials, of all ranks, charged with the maintenance of public order, wherever they may be serving. 10. 10. Obviously, therefore, the said notification has been issued by the State Government while exercising the power in sub-section (3) of Section 197 of the Code. 11. The issue whether such a notification extends the benefit of sub-section (2) of Section 197 of the Code of the police officials, of all ranks, who are charged with maintenance of public order or not, has been raised before the Hon'ble Supreme Court in the case of Rizwan Ahmed (2001 Cri L J 2897) (supra). In the said case, the Hon'ble Supreme Court dealt with a notification issued by the State of Maharashtra, which is reproduced as under : In exercise of the powers conferred upon it under sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973, the State Government hereby direct that the provisions of sub-section (2) of the said Section shall apply to police officials, of all ranks, charged with the maintenance of public order, wherever they may be serving. 12. While interpreting the term 'public order', their Lordships rejected the narrow interpretation of the term as held in cases of preventive detention. Instead, Their Lordships held that "the phrase 'maintenance of public order' in the context before us need not be assigned a narrow meaning as is assigned to in preventive detention matters. The police officers do discharge duties relating to maintenance of public order in its wider sense."' Therefore, while dealing with the notification issued by the State of Maharashtra which is verbatim of notification issued by the State of Rajasthan, Their Lordships of Hon'ble Supreme Court granted benefit of Section 197 of the Code to the police officers. 13. However, in the case of Smt. Pavani (supra), this Court had opted for the narrow interpretation of the term 'public order' as interpreted in the cases of preventive detention. In light of the interpretation given to the said term in the case of Rizwan Ahmed (2001 Cri LJ 2897) (supra), the interpretation given by this Court in the case of Smt. Pavani (supra) is impliedly overruled. Hence, the case of Smt. Pavani does not come to the rescue of Mr. Mandhana. 14. A perusal of facts of this case clearly shows that the petitioner had sent a report in his capacity as the SHO and that, too, upon a direction of the Court under Section 210 of the Code. Hence, the case of Smt. Pavani does not come to the rescue of Mr. Mandhana. 14. A perusal of facts of this case clearly shows that the petitioner had sent a report in his capacity as the SHO and that, too, upon a direction of the Court under Section 210 of the Code. Therefore, the report was not sent in his individual capacity as a person, but was sent in his official capacity as the SHO. Moreover, the report was sent in discharge of his official duty. Taking the term 'public order' in its wider meaning that "any action of the police in maintaining the law and order is an action for maintenance of public order", the said report was certainly in discharge of public order. Thus the benefit of notification dated July 31, 1974 would cover the case of the petitioner. Hence, cognizance could not have been taken by the learned Magistrate in the absence of the sanction order required under Section 197 of the Code and the petitioner could not be proceeded against in the criminal trial. 15. In the result, this petition is allowed and the criminal proceedings pending in the Court of learned Munsif and Judicial Magistrate No. 12, Jaipur City, Jaipur in case No.444/94 (Radha Ram Kalani v. Ramswaroop) are hereby quashed and set aside. Petition allowed.