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2009 DIGILAW 107 (RAJ)

Hemraj v. State of Rajasthan

2009-01-14

MANAK MOHTA

body2009
JUDGMENT 1. - Revision Petition No. 874/2006 has been filed by the complainant and the Revision Petition No. 93/2008 has been filed by the State.2. Both these revisions petitions are against the same order dated 22.7.2006 passed by the earned Addl. Sessions Judge, Nathdwara in Sessions Case No. 6 of 2005, State v. Shyam Singh Charan , whereby he has allowed the application filed by the respondent under Section 197 Cr.P.C. and dropped the proceedings in Sessions Case No. 6/2005 under Section 3(1) (x) SC/ST (Prevention of Atrocities) Act (hereinafter referred to at 'the Act') and Section 504 I.P.C. Both revision petitions were heard together and are being disposed of by a common order.3. The brief facts of the case, as it reveals from the available record, are that a complaint was filed by the present petitioner; on 13.2.2004 against the respondent, before Judicial Magistrate, Nathdwara, alleging therein that the petitioner is a Constable in the police service for last ten years and belongs to SC/ST class. It was further alleged that accused respondent is also in police service and he used to harass him time and again on count of his caste. It was alleged that while he was posted at Police Station Devdhar on 20.12.2003 he was deputed at the Bus-stand, Nathdwara in connection with maintaining law and order. At that time, the accused respondent gave him caste based abuses and defamed him. It was contended that the said incident was also witnessed by other constables. The said complaint was sent for investigation under Section 156(3) Cr.P.C. to SHO, Nathdwara. It reveals that final negative police report was given and on that complaint made protest. The learned Judicial Magistrate, after considering the police report, did not accept the final report and found that the allegations related to SC/ST (Prevention of Atrocities) Act and he took cognizance on 16.9.2004. also reveals that before the Judicial Magistrate,contentions were raised by the respondent with regard to provision of Section 197 Cr.P.C. but he did not pass any order and committed the case to the Court of learned Sessions Judge, Nathdwara. Before the learned Sessions Judge, again the respondent made the contention that at the time of alleged act, he was performing official duties, therefore, protection of Section 197 Cr.P.C. be extended to him and, no proceeding should have been continued against him. Before the learned Sessions Judge, again the respondent made the contention that at the time of alleged act, he was performing official duties, therefore, protection of Section 197 Cr.P.C. be extended to him and, no proceeding should have been continued against him. The learned Sessions Judge, after hearing both the sides, accepted the contentions of the respondent, and vide the impugned order, dropped the proceedings in Sessions Case No. 6/2005. Being felt aggrieved by the said order the complainant petitioner as well as State have filed the revision petitions before this Court. Notices of revision petitions were given, record of the case was called and the arguments were heard.4. During the course of arguments, learned counsel for the petitioner as well as the learned Public Prosecutor, assailed the correctness and legality of the impugned order and submitted that the learned Sessions Judge, without properly considering the provisions of Section 197 Cr.P.C. in right perspective, erroneously dropped the sessions proceedings, thus that is liable to be quashed and set aside. It was further submitted by the learned counsel for the petitioner that the respondent gave him caste based abuses, harassed and defamed him. Such type of alleged acts could never be said to have been done in performing his official duty nor, it covers maintenance of law and order, therefore, prima facie, the respondent was not entitled to get protection under Section 197 Cr.P.C.5. Learned counsel for the petitioner further submitted that the alleged allegations were to be thrashed during trial but before commencing trial that was not the stage where such impugned order of dropping the proceeding could have been passed. It was also submitted that though respondent was at that time Sub-Inspector of Police, being public servant but he was not holding such post that he was not removable from his office exclusively with sanction of the State Government. Looking to the alleged allegations, he was not having any protection under Section 197 Cr.P.C. Learned counsel further submitted that likewise, the alleged act of abusing never came in maintenance of law and order. Therefore, he was also not having any protection of any State Notification. Learned counsel for the petitioner, in support of his contention, also placed reliance on the judgment given in Pukhraj v. State of Rajasthan, AIR 1973 SC 2591 and Jethmal v. Khusal Singh, RLW 1984 545. Therefore, he was also not having any protection of any State Notification. Learned counsel for the petitioner, in support of his contention, also placed reliance on the judgment given in Pukhraj v. State of Rajasthan, AIR 1973 SC 2591 and Jethmal v. Khusal Singh, RLW 1984 545. On the basis of aforesaid submission, further prayer was made to allow the revision and quash and set aside the impugned order. It was further submitted that concerned Sessions Judge may be directed to restore the case and proceed as per law in Sessions Case No. 6/2005.6. Learned Public Prosecutor also reiterated the the contention placed by the learned counsel for the petitioner and submitted that the learned Sessions Judge, without appreciating the provision of 197 Cr.P.C. in the right perspective, has passed the impugned order, that is not sustainable. The respondent was not having the protection under Section 197 Cr.P.C. or of any State Notification. The learned Sessions Judge has wrongly dropped the proceedings. Request was made to set aside the same and allow the revision petition.7. On the other hand, learned counsel for the respondent submitted that there was complaint with regard to discharge of duties in proper manner against the complainant. Being a Superior Officer, he instructed but the complainant has made false allegation against him. Further it was submitted that the respondent was a public servant and was discharging his official duty with regard to law and order. Therefore, his action was protected under Section 197 Cr.P.C. and the learned Sessions Judge has rightly dropped the proceedings. The contentions raised by the learned counsel for the petitioner as well as by the learned Public Prosecutor are not sustainable and prayed that the revision may be disallowed and order may be maintained.8. I have considered the rival submissions and perused the material available on record.9. There are allegations against the respondent of giving caste based abuses. Against that prima facie the learned Judicial Magistrate looking to the facts, found that case is triable by the Court of Sessions and for that he committed the case to the concerned Sessions Judge, where the matter was to be adjudicated. The learned Sessions Judge, on the contentions raised by the complainant under Section 197 Cr.P.C. vide impugned order has dropped the proceedings of the case.10. The learned Sessions Judge, on the contentions raised by the complainant under Section 197 Cr.P.C. vide impugned order has dropped the proceedings of the case.10. Looking to the allegation, without commenting anything on the merit of the case, they are not covered in discharge of official duty. In that case Sessions proceeding against the respondent under Section 3 (1) (x) of the Act read with Section 504 I.P.C. could not have been dropped at that stage. Further, looking to the provisions of law laid down under Section 197 Cr.P.C. as the respondent was Sub-Inspector of Police at that time but he was not exclusively removable from his office, save by or with the sanction of the Government, therefore, for the alleged acts he was not protected by the provision of Section 197 Cr.P.C. or any Notification issued by the Government in this respect. The conclusion also finds support from the judgment given by the Apex Court in the case of Pukhraj (supra). It has been observed in that case that abusing a person does not come within the discharge of official duty. The relevant portion is as under:- "Applying this test it is difficult to say that the acts complained of i.e. of kicking the complainant and of abusing him, could be said to have been done in the course of performance of the 2nd respondent's duty." 11. Likewise, in the case of Jethmal (supra), it was observed that Sub-Inspector of Police is not protected by Section 197 Cr.P.C. I have also considered the State Government Notification dated 31.7.1974 (S.O.No. 89) but that is related to maintenance of public order. That is not relevant and respondent is also not protected by said Notification, looking to the facts of case.12. On the basis of aforesaid submissions, both the revision petitions deserve to be allowed and the impugned order dated 22.7.2006 passed by the learned Sessions Judge, dropping of the proceedings in Case No. 6 of 2005, State v. Shyam Singh Charan , is liable to be quashed and it is hereby quashed. Further, direction is given to the concerned Sessions Judge to continue the Sessions proceedings in Sessions Case No. 6 of 2005, State v. Shyam Singh in accordance with law. The learned lower Court will not be influenced by any observation made in this order and the accused respondent will be free to submit his submission before the lower Court. Further, direction is given to the concerned Sessions Judge to continue the Sessions proceedings in Sessions Case No. 6 of 2005, State v. Shyam Singh in accordance with law. The learned lower Court will not be influenced by any observation made in this order and the accused respondent will be free to submit his submission before the lower Court. The revisions petitions are disposed of accordingly. Revision petitions allowed. *******