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Madhya Pradesh High Court · body

2007 DIGILAW 340 (MP)

Pradeep Rajoria v. Chandra Pratap Singh Kushwah

2007-03-22

A.P.SHRIVASTAVA

body2007
ORDER 1. By this petition, petitioner has prayed for quashing the proceeding under section 482 of CrPC which was initiated on a criminal complaint No.671/87 filed by the respondent No.1 before the Court of Additional Chief Judicial Magistrate, Sheopurkalan, District Morena. 2. The facts of the case, in short, are that the petitioner is in services of M.P. Police and having a blotless career. In the year 1983, the petitioner was posted on the post of Sub-Inspector at Police Station Sheopurkalan. On 12.3.1987, an FIR was lodged by the then Town Inspector Angad Singh Kushwah against the respondent No.1 which was registered as Crime No.49/87 under sections 323, 294, 506(II) and 341 of IPC. The copy of the charge-sheet is Annexure P-1. 3. During the course of investigation, the petitioner arrested respondent No.1 in the night of 12.3.1987. After the arrest, the respondent No.1 was produced before the Court of Magistrate on the following day. Bail was granted to the respondent No.1 by the Court. At the time of production before the Magistrate, respondent No.1 did not file any application regarding any accusation or regarding his medical check-up before the Court. Later on, after lapse of a period of about two months the respondent No.1 filed a private complaint before the learned trial Court under section 294, 323, 342, 355, 357, 458 and 506(II) of the IPC. Copy of the said complaint is Annexure P-2. It is alleged that respondent No.1 is a history-sheeter having many cases registered against him and the record of the criminal history of the respondent No.1 is Annexure P-3. 4. In the complaint filed by the respondent No.1, after preliminary enquiry, the case was registered under section 323, 294 and 506(b) of IPC. It is stated by the counsel for the petitioner that respondent No.1 was arrested by him while acting in discharge of his official duty, therefore, as per the provisions of section 197 of CrPC, no cognizance could be taken by the learned trial Court without previous sanction of the State Government. Hence, the petitioner has filed the present petition to quash the criminal case No.671/87 pending before the Court as aforesaid. 5. Hence, the petitioner has filed the present petition to quash the criminal case No.671/87 pending before the Court as aforesaid. 5. In this petition, the ground for quashing the criminal proceedings as taken is that the petitioner has falsely been implicated by the respondent No.1 and the complaint was filed about two months after he was arrested in criminal case by the petitioner. Secondly, no sanction under section 197 of CrPC was obtained from the State Government. 6. Heard the arguments at length. The main contention of the learned counsel for the petitioner is that no complaint was made against the petitioner by the respondent No.1 to any authority till filing of the complaint. It is also submitted that when the respondent No.1 was produced before the Court of the Magistrate, after his arrest he had made no complaint before the Court. The petitioner had arrested the respondent No.1 on a complaint filed against him in the discharge of his official duty. 7. Counsel for the petitioner relied on various citations regarding sanction under section 197 of CrPC. He relied on State of H.P. v. M.P. Gupta reported in (2004)2 SCC 349 , in which it is laid down that the Court cannot take cognizance of complaint against a public servant unless sanction is obtained from the appropriate authority if the offence alleged to have been committed was in discharge of official duty. On the same point, learned counsel for the petitioner relied on S.K. Zutshi and another v. Bimai Debnath and another reported in (2004)8 SCC 31 , and on K. Kalimuthu v. State by DSP reported in (2005)4 SCC 512 . In the case of K. Kalimuthu (supra), the apex Court considered the words "official" and "official duty" in which it is laid down that where act or omission performed by a public servant had reasonable connection with discharge of his duty, it must be held to be official. 8. Counsel for the petitioner also cited some more citations which were almost on the same point. One of these citations is Romesh Lai Jain v. Naginder Singh Rana and others reported in ( 2006(1) SCC 294 . 9. 8. Counsel for the petitioner also cited some more citations which were almost on the same point. One of these citations is Romesh Lai Jain v. Naginder Singh Rana and others reported in ( 2006(1) SCC 294 . 9. On behalf of the respondent No.1, it is submitted that he has filed photocopies of the order-sheets of the concerning case from the year 1987 to 2006 and the chart shows that how the proceedings were initiated from the beginning till now. It is also submitted that the delay in criminal proceeding is not due to the respondent No.1 but the delay is caused due to non-service of the petitioner for about 17 years. The complaint was filed in the year 1987 and his presence could not be secured for about 17 years and then, the respondent No.1 filed a petition under section 197 of CrPC before the concerning Court on 23.5.2002. The application was rejected by the Court and also rejected by the Additional Sessions Judge, Morena on 19.9.2002. The record of that revision case was destroyed. Against the rejection of that order no revision was filed and thereafter the respondent No.1 again moved an application under section 197 of CrPC on 27.12.2004 which was again rejected by the trial Court and in revision in the criminal case No.8/05, 1st Additional Sessions Judge, Sheopur rejected the revision on 5.7.2005. Against the rejection of that order, no action has been taken by the respondent No.1 before the High Court. So the order regarding 197 CrPC is final due to rejection of the application under section 197 of CrPC by the Courts below. 10. It is also submitted by the counsel for the respondent No.1 that the objection taken by the petitioner that he was discharging his official duty is not maintainable in view of the order passed by the trial Court which was affirmed by the revisional Court and secondly when the act of the petitioner was not related to his official duty or in discharge of his official duty, therefore, no sanction is essential. 11. Regarding delay for filing the complaint against the petitioner after two months of the incident is concerned, it is said that the complaint was filed within time and it is neither mala fide nor is it filed with an intention to implicate him falsely. 12. 11. Regarding delay for filing the complaint against the petitioner after two months of the incident is concerned, it is said that the complaint was filed within time and it is neither mala fide nor is it filed with an intention to implicate him falsely. 12. Under section 197 of CrPC, it is laid down that 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, the question of sanction only arises when the act complained of is an offence. Secondly, if an act constituting an offence either directly or reasonably concerned with his official duty which requires sanction for prosecution which is necessary as if the offence must be in respect of an offence done or purported to be done in the discharge of an official duty. 13. In this case, a complaint was filed by the respondent No.1 against the petitioner and on the basis of the complaint, after enquiry, the case was registered under section 323, 294 and 506(b) of IPC. The trial Court while deciding the application under section 197 of CrPC held that the act of the petitioner is not covered under the expression "action or purporting to act in the discharge of his official duty". 14. As stated above, this objection was taken by the petitioner for the first time on 23.5.2002 before the concerning Court and the Court rejected the objection and the order was also confirmed in the I Revisional Court. Again this point was raised and an application was made on 20.12.2004. The concerning Magistrate rejected the application of section 197 of CrPC and I Revisional Court also affirmed the order of the trial Court and no revision was filed against the said order by the petitioner. Therefore, the question of section of 197 CrPC is finally decided by the Court and the remedy was available to the petitioner to go in revision before the High Court but he has not opted to move before this Court to challenge the finding recorded by the trial Court as well as by the first revisional Court. 15. Therefore, the question of section of 197 CrPC is finally decided by the Court and the remedy was available to the petitioner to go in revision before the High Court but he has not opted to move before this Court to challenge the finding recorded by the trial Court as well as by the first revisional Court. 15. Therefore, looking to the above facts and even otherwise on considering the allegation against the petitioner, the complaint under which offence was registered does not come within the expression "acting or purporting to act in the discharge of his official duty". Hence, this objection cannot be accepted. 16. Regarding the delay of proceeding and false implication, the chart shows that for appearance of the petitioner years to years have elapsed to secure his attendance although he is a police employee. 17. From the perusal of the proceeding chart, it appears that the case is pending of the final arguments stage. Both the sides have closed their evidence and perhaps one application under section 311 of CrPC was filed by the petitioner on 8.8.2005 and that is still pending and it appears that petitioner is not appearing before the Court and subsequently the proceedings were stayed by the Court. 18. Section 482 of CrPC lays down that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 19. From the above provision of section 482 of CrPC, it is clear that the width of power of the High Court under section 482 of CrPC, in principle, is very expansive but in practice the power is exercised in exceptional cases. The power is meant to be exercised to give effect to any order under CrPC or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. See Usha Ahuja v. State of Haryana reported in AIR 1999 SC 3242 . 20. It was held in the case of State of T.N. v. Thirukkural Perumal reported in (1995)2 SCC 449 that the power of quashing an FIR and criminal proceeding should be exercised sparingly by the Courts. See Usha Ahuja v. State of Haryana reported in AIR 1999 SC 3242 . 20. It was held in the case of State of T.N. v. Thirukkural Perumal reported in (1995)2 SCC 449 that the power of quashing an FIR and criminal proceeding should be exercised sparingly by the Courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by the Court in various judgments (reference in this connection may be made with advantage to State of Haryana v. Bhajan Lal reported in 1992 Supp. (1) SCC 335), but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under section 482 CrPC seeking the quashing of the FIR and the criminal proceedings. 21. In this case, the trial Court after preliminary enquiry, registered a crime against the petitioner and the case is almost concluded after giving opportunity of adducing the evidence to both the sides and it cannot be said that the trial Court registered the complaint without prima facie disclosure of any offence. In this regard, it was held by the apex Court in Smt. Chand Dhawan v. Jawaharlal reported in AIR 1992 SC 1379 , that the High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the complaint do not constitute an offence or that the exercise of the power is necessary either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such power should be exercised. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such power should be exercised. When the allegations in the complaint prima facie constitute the offence against any or all the accused in the absence of materials on record to show that the continuance of the proceedings would be an abuse of the process of the Court or would defeat the ends of justice, the High Court not be justified in quashing the complaint. 22. Next point for consideration is delay in the trial. As already stated that the delay is not caused due to the fault of the prosecution but due to securing the attendance of the petitioner because for a long time and when the case has attained its finality, therefore, on the ground of delay, the proceedings cannot be quashed. 23. In view of the above discussion, it appears that it is not a fit case in which the Court should invoke its extraordinary inherent jurisdiction to quash the proceeding and therefore, the petition is dismissed. However, the trial Court is directed to dispose of the case within a period of three months from the date of receipt of this order.