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2013 DIGILAW 2008 (BOM)

Sheshrao v. Rahul

2013-09-27

ABHAY M.THIPSAY

body2013
ORDER 1. Heard Mr. B.N. Patil, the learned counsel for the petitioners. 2. The petitioners are policemen. The respondent no.1 herein lodged a complaint against them alleging commission of offences punishable under Section 294 of Indian Penal Code (IPC), Section 342 of IPC, Section 323 of IPC, Section 504 of IPC read with Section 34 of IPC, by them. The Judicial Magistrate, First Class, Hadgaon, ordered investigation, as contemplated under Section 156(3) of the Criminal Procedure Code (Hereinafter referred to as “the Code”) in the matter. Pursuant to this order of investigation, the matter was investigated into and the police filed a “B” Summary report. The opinion of the Investigating Agency was that the complaint was false. The learned Magistrate, however heard the respondent no.1 i.e. the original complainant, and did not accept the “B” Summary report. According to the Magistrate, there were sufficient grounds for proceeding against the petitioners. He, therefore, rejected the prayer for acceptance of “B” Summary and directed process to be issued against the petitioners with respect to the aforesaid offences. Being aggrieved by the said order, the petitioners approached the Court of Sessions in Revision, but the learned Additional Sessions Judge, who heard the same, dismissed it. The petitioners have now approached this Court invoking its constitutional jurisdiction. 3. Mr. B.N. Patil, the learned counsel for the petitioners contended that the complaint is false, and that it was apparent from the fact that there had been delay in levelling the accusations against the petitioners. He emphasized another aspect of the matter viz:-that the alleged offences had been committed by the petitioners while acting in discharge of their duties, and as such, cognizance thereof could not have been taken without a sanction, as contemplated under Section 197 of the Code. 4. I have examined the matter in the light of the contentions advanced by the learned counsel for the petitioners. 5. A bare reading of the complaint shows that it makes out a case against the accused persons i.e. the petitioners. While rejecting the “B” Summary report, the learned Magistrate has taken the facts of the case into consideration. It appears that on the protest Petition filed by the respondent No.1, the learned Magistrate had issued notices to the petitioners. It is extremely doubtful, to say the least – as to whether it was necessary to hear the petitioners, at that stage. It appears that on the protest Petition filed by the respondent No.1, the learned Magistrate had issued notices to the petitioners. It is extremely doubtful, to say the least – as to whether it was necessary to hear the petitioners, at that stage. The accused persons cannot have any say on whether a “B” Summary report should be accepted or not. Simply because the original complainant is to be heard, the accused persons need not be heard in the matter. The original complainant is required to be heard because the conclusion arrived at by the Investigating Agency is adverse to him. It is not the same with accused persons, in as much as, the Investigating Agency has come to a conclusion favourable to the accused persons. Therefore, in the light of the general principle that the accused cannot have any say in the matter before process is ordered to be issued against him would come in play, and in my opinion, it was not necessary at all on the part of the Magistrate to hear the petitioners on whether the “B” Summary report, should be accepted or not. 6. Any way, the petitioners were heard by the Magistrate, and their contentions were taken into consideration. The learned Magistrate considered the contentions taken on behalf of the accused persons that there had been a delay in making the complaint, as a ground to disbelieve the averments made therein, but did not accept such contentions. The learned Magistrate came to the conclusion that there was sufficient ground for proceeding against the accused persons. It is thereafter that he issued process against the petitioners. 7. As regards to the question of sanction under Section 197 of the Code, the Magistrate was of the opinion that the acts attributed to the petitioners could not be said to have been done in the course of discharge of their duties. He therefore, held that sanction under Section 197 of the Code was not necessary for taking cognizance of the alleged offences. 8. The Revisional Court agreed with the findings of the learned Magistrate. The Revisional Court also came to the conclusion that there was a prima facie case for proceeding against the petitioners. 9. I do not find any error on the part of the Magistrate in arriving at a conclusion that there was a prima facie case for proceeding against the petitioners. The Revisional Court also came to the conclusion that there was a prima facie case for proceeding against the petitioners. 9. I do not find any error on the part of the Magistrate in arriving at a conclusion that there was a prima facie case for proceeding against the petitioners. It is not in dispute that the Magistrate would not be bound by the conclusion arrived at by the Investigating Agency and that he would be entitled to take cognizance of the alleged offences, if, in his opinion, the police report disclosed the commission of offences in question. Since this legal position is not disputed, I do not wish to elaborate further on this. 10. The only question is whether, prima facie, the alleged offences appear to have been committed in discharge of the duties of the petitioners. Any opinion about this, at this stage necessarily needs to be formed on the basis of the original complaint and the material collected during the investigation. It does not appear, prima facie, that the acts attributed to the petitioners are such as could be said to have been committed by them in discharge of their duties. 11. In any case, Their Lordships of the Supreme Court of India observed in the case of P.K. Pradhan V/s State of Sikkim { (2001) 6 S.C.C. 704 } that it is possible that the complainant in a given case would suppress facts which if brought before the Court, would justify an inference that the sanction under Section 197 of the Code was necessary. Their Lordship observed that in such a case, it would be open for the accused persons to raise the plea of want of sanction after sufficient facts showing the necessity of sanction, are brought on record. In my opinion, such a course would be open to the petitioners, and in case they succeed in bringing on record facts which would indicate that the cognizance of the alleged offences could not have been taken without a sanction under Section 197 of the Code, they may well seek termination of the proceedings instituted against them. This can, however, happen only after evidence is adduced during the trial. At this stage, it does not appear that the alleged offences have been committed by the petitioners in discharge of their official duties, or in purported discharge thereof. 12. This can, however, happen only after evidence is adduced during the trial. At this stage, it does not appear that the alleged offences have been committed by the petitioners in discharge of their official duties, or in purported discharge thereof. 12. Moreover, the writ jurisdiction vested in this Court is of extra-ordinary nature. It is basically to be exercised to ensure that the subordinate Courts or Public Authorities act within the bounds of their authority. In this case, it does not appear that either the Magistrate or the Additional Sessions judge exceeded the scope of his jurisdiction or authority while passing the impugned orders. It also does not appear that any patent and/or grave error or illegality was committed by any of them in arriving at a conclusion that there were sufficient grounds for proceeding against the petitioners. As such, interference with the impugned orders, in the extraordinary jurisdiction conferred on this Court, is uncalled for. 13. The Petition is rejected.