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Madhya Pradesh High Court · body

2010 DIGILAW 185 (MP)

S. B. Mirza v. Narottam Khare

2010-02-14

M.A.SIDDIQUI

body2010
ORDER : M.A. Siddiqui, J. 1. Invoking the extra-ordinary powers of this Court under Section 482, Code of Criminal Procedure Petitioner has preferred this petition for quashing the entire proceedings pending before the Courts below i.e. against the order of Sessions Judge, Chhatarpur dated 16.12.2008 unregistered revision arising out of order dated 14.5.2007 in Cri. Case No. 378/07 of the Court of J.MF.C. Nawgaon, district Chhatarpur by which the learned Magistrate has issued process in respect of offence under Section 294 and 342 of IPC against him. 2. The undisputed facts of the case are that: (i) The Petitioner is a Inspector of Police had been in charge of P.S. Nawgaon, district Chhatarpur on the relevant date i.e. 16.4.05 and 17.4.05. (ii) A case of Gambling through Crime No. 104/05 for the offence Under Section 13 of the Gambling Act registered by the applicant against ten persons including Arvind Khare the son of complainant/ Respondent No. 1 Narrotattam Khare. (iii) Respondent No. 1 Narrotattam Khare is also a retired Inspector of Police. 3. The short facts of the case are that since the Petitioner registered a case under Section 13 of Gambling Act and arrested 10 persons including Arvind Khare the son of complainant/ Respondent No. 1 Narrotattam Khare. Respondent No. 1 came at P.S. Nawgaon, district Chhatarpur and interfered in the working of Police and he threatened the Petitioner saying that he will see and he will involve him in some fake and false rape case etc. As there was need so Petitioner taken cognizance against some of the persons including Arvind Khare son of Respondent No. 1 for the offence Under Section 151, 107 and 116 of Code of Criminal Procedure and arrested them in custody, afterward on the same day, they have been granted bail from the Executive Magistrate. Respondent No. 1 felt annoyed and in order to take revenge, lodged a complaint Criminal case on 26.4.2007 against the Petitioner and other persons police personel before the J.M.F.C. Nawgaon, district Chhatarpur. Learned J.M.F.C. Nawgaon, district Chhatarpur on 14.5.2007 registered the criminal complaint case as Cri. Case No. 378/07 for the offence Under Section 294 and 342 of IPC after recording evidence of complainant Under Section 200 and his witnesses Under Section 202 Code of Criminal Procedure against the Petitioner and 3 other police personnel. 4. Learned J.M.F.C. Nawgaon, district Chhatarpur on 14.5.2007 registered the criminal complaint case as Cri. Case No. 378/07 for the offence Under Section 294 and 342 of IPC after recording evidence of complainant Under Section 200 and his witnesses Under Section 202 Code of Criminal Procedure against the Petitioner and 3 other police personnel. 4. Against registration of the criminal complaint case, a revision was preferred by the Petitioner before the Court of Additional Sessions Judge, Nawgaon, district Chhatarpur which was dismissed by learned Sessions Judge Chhatarpur without registration of the criminal revision, hence the Petitioner preferred this petition before this Court invoking inherent powers of High Court Under Section 482 Code of Criminal Procedure for quashment of the aforesaid two orders. 5. Learned Counsel for the Petitioner submits that according to Section 197 of Code of Criminal Procedure the Petitioner who is an Inspector incharge of PS Nawgaon, district Chhatarpur, no cognizance can be taken without obtaining sanction from the competent authority, as he is a Public Servant appointed by State Government and was discharging his official duties. In support of the aforesaid contention learned Counsel for the Petitioner places reliance on the case of Apex Court Sankaran Moittra v. Sadhna Das and Anr. (2006) 4 SCC 584 , and Rakesh Kumar Mishra v. State of Bihar (2006) 1 SCC 557 wherein it has been held that if the act is done in discharging of the official duty then without sanction no cognizance can be taken. 6. Even the Respondent No. 1 did not dare to examine his son Arvind Khare including the persons to whom against Section 342 IPC was registered. 7. Learned Counsel for the applicant submits that Respondent No. 1 approached to the Court and threatening to police personnel in the case got mentioned in Rojnamcha No. 853 at 23.30 hrs. on 16.4.2005 which is a public document by S.I. Virendra Singh in which it was specifically threatening that police party will be involved and some case including complaint case . This is a public document and can not be fabricated . A copy has been attached . 8. Learned Counsel for the Petitioner further submits that registration of criminal case Under Section 342 IPC for making wrongful confinement are allegations against the police officers/personnel. This is a public document and can not be fabricated . A copy has been attached . 8. Learned Counsel for the Petitioner further submits that registration of criminal case Under Section 342 IPC for making wrongful confinement are allegations against the police officers/personnel. It is said that he kept in wrongful custody the accused persons, he kept them in the capacity of Police Officer and not as a private capacity. As far as Section 342 of IPC is concerned, the act of the applicant is fully covered under ambit of Section 197 of Code of Criminal Procedure 9. As far as Section 294 I.P.C. is concerned, learned Counsel for the State submits that using specific filthy language can never be come under the colour of official language, public servant is not authorized to use filthy language and so it can not be done in the official capacity. I fully agree with this submission. Specific filthy language is not made out in the complaint as well as in the statement of complainant and his witnesses. 10. Learned Counsel for the applicant submits that from the perusal of statement recorded for the purpose of registration of complaint Respondent No. 1 examined himself on 26.4.2005. Though he says that the Petitioner used filthy language (Galiyan) but even this witness including Witness No. 2 Safik Ansari and Pushpendra Pathak witness No. 3 said about the filthy language but no uttered any specific language (Galiyan). More over listed witnesses which were shown at the spot namely Adarsh Saxena, Chattu Lodhi, Brajesh Kumar Saxena and Ramdas @ Munna Yadav were not examined though they were shown as eye witnesses of the incident. For the purpose of Section 294 IPC it is necessary that specific filthy language must be proved and it must be proved that it annoyed the public but no person said that annoyance is there. 11. Learned Counsel for the applicant submits that Respondent No. 1 who was Inspector has filed the complaint and the evidence is read as it is than also no conviction can be done or made out so such type of proceedings are quashed which amounting to abuse of process of law for which learned Counsel places reliance on Suneet Gupta v. Anil Triloknath Sharma and Ors. (2008)11 SCC 670 ; wherein it has been held that criminal proceedings are initiated on complaint amounting to abuse of process of law the said proceeding should be quashed. In the Case of Baijnath Jha v. Sita Ram and Anr. (2008)8 SCC 77 wherein it has been held that where proceedings have been started by complainant in order to raise vengeances then the proceedings should be quashed the same verdict is in case of Priyavrat Singh and Ors. v. Shyam ji Sahai (2008) 8 SCC 232 and Mahindra and Mahindra Financeial Services Limited and Anr. v. Rajiv Dubey (2009)1 SCC 706 . 12. Learned Counsel for the Petitioner submits that there are so many contradictions in the statements of complainant Under Section 200 and his witnesses Safik Ansari and Pushpendra Pathak Under Section 202 Cr.P.C., for instance, the evidence shows that demand of Rs. 40,000/-was made and by both other witnesses say demand of Rs. 5,000/-each is there. According to Pushpendra Pathak Witness No. 3, no specific word any specific filthy language is there. Safik Ansari witness No. 2 said about the omnibus statement of Gali-Galauch. These both Witnesses i.e. Safik Ansari and Pushpendra Pathak were the accused in the case of gambling and no independent witness was produced. So these two witnesses are the annoyed persons against them a case of gambling is registered. 13. Looking to the facts and circumstances of the case on the complaint after recording evidence of complainant and his witnesses the Magistrate has issued process in respect of offence under Section 294 and 342 of IPC and the revisional court has dismissed the revision of the Petitioner without registering it though for prosecution of a public servant sanction from State Government is necessary, hence the factual position clearly shows that the complaint is nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 Code of Criminal Procedure should have been exercised. 14. I perused the entire evidence of complainant as well as of his witnesses. The evidence as it is taken then no conviction Under Section 294 can be based of made out. As far as offence Under Section 342 IPC is concerned, rider of Section 197 Cr.P.C is there. 14. I perused the entire evidence of complainant as well as of his witnesses. The evidence as it is taken then no conviction Under Section 294 can be based of made out. As far as offence Under Section 342 IPC is concerned, rider of Section 197 Cr.P.C is there. Moreover it is pertinent to note that it was not registered against complainant but it was registered against his son for wrongful confinement and he was not examined in the complaint case and no primary evidence was produced so the evidence taken no conviction is held so such type of proceedings can not be allowed. As far as Authority Madhavrao Jiwajirao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. (1988) 1 SCC 692 , Vir Prakash Sharma v. Anil Kumar Agarwal and Anr. (2007)7 SCC 373 the complaint ( Cri. Case No. 378/07 ) is liable to be quashed hence by empowering the power Under Section 482 Code of Criminal Procedure the proceedings of trial Court against the Petitioner S.B. Mirza are hereby quashed and he is discharged from the alleged offence Under Section 342 and of IPC. 15. The petition is allowed.