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2012 DIGILAW 1370 (RAJ)

Suryaveer Singh v. State of Rajasthan

2012-05-23

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—The instant miscellaneous petition has been preferred by the petitioner against the order dated 14.10.2009 passed by the learned Additional Sessions Judge No. 2, Chittorgarh in Criminal Revision No. 82/2009 (96/2008), affirming the order dated 12.9.2006 passed by the Judicial Magistrate, First Class, Kapasan rejecting the petitioner's application under Section 197 Cr.P.C. 2. Succinctly stated the facts of the case are that the respondent No. 2 Mangi Lal filed a complaint on 30.4.2002 in the Court of the learned Judicial Magistrate, First Class, Kapasan for the offences under Sections 323, 504 and 506 IPC. It was alleged in the complaint that on 13.4.2002, a quarrel took place between Ganga Ram and Bhanwar Lal in the village. The complainant tried to intervene and stop the quarrel. The police officers of Police Station, Kapasan came on the spot and detained the complainant, Ganga Ram, Bhanwar Lal and few others, who were thereafter taken to the Police Station. It is stated that the petitioner was the Station House Officer at the relevant time and when the complainant was brought to the police station, the amount of Rs. 3000/- which was lying in his pocket, was removed by the policemen. It is further the case of the complainant that he as well as the other persons were illegally detained in the police lockup and were assaulted and abused by the police officers. 3. The learned Magistrate recorded the statements of the complainant and his witnesses under Sections 200 and 202 Cr.P.C. and thereafter proceeded to issue process against the petitioner for the offences under Sections 323 and 504 IPC 4. The petitioner moved an application under Section 197 Cr.P.C. before the learned Magistrate on 8.7.2004 claiming that his prosecution was not permissible without procuring sanction from the competent authority and, therefore, the proceedings of the complaint were assailed on the ground of lack of sanction to prosecute. The application filed by the petitioner was rejected on 12.9.2006. The rejection order was challenged by the petitioner by filing a revision petition before this Court and this Court, holding that the learned Magistrate's order was challengeable in revisional jurisdiction, rejected the revision petition filed by the petitioner giving him liberty to agitate the issue by filing a revision before the Sessions Court. Accordingly, the petitioner preferred the revision petition before the learned Sessions Judge, Chittorgarh, who also rejected the same on 14.10.2009. Accordingly, the petitioner preferred the revision petition before the learned Sessions Judge, Chittorgarh, who also rejected the same on 14.10.2009. Resultantly, the instant miscellaneous petition has been preferred by the petitioner seeking quashing of the proceedings of the complaint and all subsequent proceedings sought to be taken thereupon against the petitioner. 5. Dr. Sachin Acharya, learned counsel for the petitioner, submits that in this case the petitioner, in his official capacity as a public servant being the Station House Officer, Police Station, Kapasan, was discharging his official duties for the maintenance of public order. The complainant and his other companions were found committing the offence of breach of peace and public tranquility and accordingly they were arrested under Sections 107 and 151 (1) Cr.P.C. on 13.4.2002 and produced before the concerned Executive Magistrate on 14.4.2002. On being produced before the learned Executive Magistrate, the complainant and his companions admitted their guilt and were directed to be released on furnishing bail and bonds under Sections 107 and 151 Cr.P.C. Before being produced before the Executive Magistrate, the concerned persons, i.e. the complainant and his companions were subjected to medical examination and apart from Bhanwar Lal, none was found having any injury on his person. 6. A certified copy of the complaint filed by the petitioner against the respondent No. 2 and his companions in the Court of the Sub Divisional Magistrate, Kapasan on 14.4.2002, has been placed on record. It is significant to state here that none of these persons made a complaint to the Executive Magistrate on being produced before him that they had been assaulted by the police officials after being taken to the police station. 7. Learned counsel for the petitioner has placed reliance on a decision of the Hon'ble Apex Court in the case of Rizwan Ahmed Javed Shaikh & Ors. vs. Jammal Patel & Ors., (2001) 5 SCC 7 and submitted that by virtue of the Notification No. F.20(7) Home (Gr. VI)/74 dated July 31, 1974 issued by the State Government, the police officers, who are clothed with the duties of maintaining public order, are entitled to the protection of Section 197 Cr.P.C. Learned counsel also submits that in this case the complaint is highly belated. The alleged incident of assault is said to have taken place on 13.4.2002. VI)/74 dated July 31, 1974 issued by the State Government, the police officers, who are clothed with the duties of maintaining public order, are entitled to the protection of Section 197 Cr.P.C. Learned counsel also submits that in this case the complaint is highly belated. The alleged incident of assault is said to have taken place on 13.4.2002. The complainant and his companions were produced before the concerned Sub Divisional Magistrate on 14.4.2002 and was released on bail. At that time he did not raise any grievance regarding any maltreatment in police custody, but then after a delay of nearly 17 days of the alleged incident, the complaint was filed. He submits that the complainant's allegations are also patently false for the reason that the same are not supported by medical evidence. He, therefore, submits that the miscellaneous petition deserves to be accepted and proceedings pursuant to the complaint filed by the respondent No. 2 deserve to be quashed. 8. Per contra, learned counsel for the complainant-respondent No. 2 has opposed the arguments advanced on behalf of the petitioner and submitted that the act of assaulting and abusing cannot be said to be an act committed during discharge of the official duty/functions. Thus, it is submitted that the petitioner is not entitled to the benefit of Sec. 197 Cr.P.C. and the proceedings of the complaint are not liable to be quashed by the Court while exercising the inherent powers available to this Court under Section 482, Cr.P.C. 9. Having considered the arguments advanced at the bar and after going through the material on record, it is evident that firstly the allegations of the complainant appear to be highly unnatural and unconvincing on the face of the record. If the alleged acts of assault and abuse had taken place on 13.4.2002 then there was no reason as to why the complainant or his companions would keep silent about the same when they were produced before the Executive Magistrate on 14.4.2002. 10. Secondly, the complainant was admittedly released on 14.4.2002 by the Executive Magistrate on furnishing bail and bonds in the complaint filed by the petitioner under Sections 107 and 151 Cr.P.C. Thereafter also, the complainant waited for a period of nearly 17 days before filing the complaint against the petitioner. 10. Secondly, the complainant was admittedly released on 14.4.2002 by the Executive Magistrate on furnishing bail and bonds in the complaint filed by the petitioner under Sections 107 and 151 Cr.P.C. Thereafter also, the complainant waited for a period of nearly 17 days before filing the complaint against the petitioner. It is apparent that the complaint in this case appears to be highly motivated and, as a matter of fact, it appears to be filed as a counter-blast to the proceedings initiated by the petitioner against the complainant and his companions under Sections 107 and 151 Cr.P.C. 11. Thirdly, the petitioner admittedly arrested the complainant and his companions while discharging the duties assigned to him for maintaining public order and public tranquility. Such police officers have been extended the protection of the cloak of sanction by a Notification No. F. 20(7) Home (Gr. VI/74 dated July 31, 1974 issued by the Home (Gr. VI) Department of the Rajasthan State Government, which reads as under:- "S.O. 89.- In exercise of the powers conferred upon it under sub-sec. (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, where-ever they may be serving." 12. The Hon'ble Apex Court, in the case of Rizwan Ahmed Javed Shaikh & Ors. vs. Jammal Patel & Ors. (supra), while considering almost a similar situation and while considering the effect of a similar Notification issued under the Bombay Police Act, proceeded to uphold the quashing of the proceedings of the complaint filed against the police officers and upheld the orders of the learned Sessions Judge as well as the High Court rejecting the complaint on the ground of the protection of sanction being available to the police officials by the effect of the Notification issued under the Bombay Police Act. The Notification issued under the Bombay Police Act is analogous to the Notification issued by the Government of Rajasthan referred hereinabove. The Hon'ble Apex Court held that the protection of Section 197(2) Cr.P.C. was available to the police officials and their prosecution could not be permitted in absence of sanction to prosecute. 13. The Notification issued under the Bombay Police Act is analogous to the Notification issued by the Government of Rajasthan referred hereinabove. The Hon'ble Apex Court held that the protection of Section 197(2) Cr.P.C. was available to the police officials and their prosecution could not be permitted in absence of sanction to prosecute. 13. From the undisputed facts, as stated above, since the petitioner, being a police officer, was discharging his duties of maintenance of public order when he arrested the complainant and his companions and it is only during the course of discharge of such duties that the incident (in relation whereto the complaint was filed) is said to have taken place. 14. Resultantly, this Court is of the opinion that the prosecution of the petitioner on the basis of the impugned complaint is absolutely illegal and amounts to an abuse of process of the court because even if the allegations of the complainant are admitted to be correct, then too the prosecution against the petitioner has been launched without procuring the sanction, which was mandatorily required in view of the Notification issued by the State Govt. 15. Resultantly, the miscellaneous petition succeeds. The impugned order dated 12.9.2006 passed by the learned Judicial Magistrate, First Class, Kapasan in Criminal Regular Case No. 227/2002 rejecting the petitioner's application under Section 197 Cr.P.C., as affirmed by the learned Additional Sessions Judge No. 2, Chittorgarh vide impugned order dated 14.10.2009 passed in Criminal Revision No. 82/2009, as also all the proceedings of the complaint, are hereby quashed. The stay petition is disposed of.