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Rajasthan High Court · body

2013 DIGILAW 2254 (RAJ)

Vishal Bansal v. State of Rajasthan

2013-12-12

NISHA GUPTA

body2013
JUDGMENT 1. - This Misc. Petition under Section 482 Criminal Procedure Code has been filed against the order dated 1.9.2006 passed by Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur in complaint No. 1592/2006 whereby cognizance has been taken against the present petitioners for the offence under Section 2 of the Prevention of Insults to National Honour Act, 1971 (in short the Act of 1971) and Section 107, 114, 341, 323 and 504 IPC. 2. The relevant facts of the case narrated in the petition are that a complaint has been filed against the present petitioners for the above offence wherein it has been stated that the present petitioners and others have obstructed the complainant to hoist the flag at SMS Stadium whereas on 11.8.2006, the complainant represented before the Governor and Chief Minister for hoisting the flag at SMS Stadium, Jaipur whereas petitioner No. 3 has accorded oral sanction for hoisting the flag and on 14.8.2006, the social workers have inspected the Stadium and official permission has been granted to them. On 15.8.2006 at 10.00 AM when they were going to hoist the flag peacefully, present petitioners and other police party obstructed them, companion of petitioner No. 1 and petitioner No. 2 himself had caught hold of the complainant by neck and they gave beating to the present petitioners and also allowed the national flag to touch the ground and even one police personnel has put his left shoe on the flag thus, they have dishonoured the national flag. The complainant has also stated the incident to present petitioner No. 1 who was present there but he also used filthy language. On this after recording the statement of complainant, cognizance against the present petitioners has been taken which has been challenged by way of this petition. 3. The contention of the present petitioners is that no offence has been committed by the present petitioners. The bare reading of the complaint and the statements recorded in pursuance of the complaint under Section 200 Criminal Procedure Code, there is no allegation which can attract the ingredient of Section 2 of the Act of 1971, there was no mens rea or intention on the part of the accused petitioners to commit the offence. The bare reading of the complaint and the statements recorded in pursuance of the complaint under Section 200 Criminal Procedure Code, there is no allegation which can attract the ingredient of Section 2 of the Act of 1971, there was no mens rea or intention on the part of the accused petitioners to commit the offence. Admittedly, order under Section 144 Criminal Procedure Code was in operation and complainant and huge crowd entered forcibly in the Government premises and present petitioners were there to restrain them and their duty as police officer was that nobody should take the law in their hands and they were only stopping the complainant and other persons from entering in the premises, they were violating the law and to put pressure, this false complaint has been filed against the present petitioners. His further contention is that admittedly, present petitioners are public servants and they were discharging their official duties at the relevant time but no sanction under Section 197 Cr.RC. has been obtained against the present petitioners. There is no averment in the complaint or in the statement of the complainant that the present petitioners have in any way showed disrespect to the national flag or they have misbehaved with the complainant and the allegations are against the executive and police authorities who were deputed there for keeping law and order hence the cognizance be quashed against the present petitioners. Per contra, the contention of the counsel for the complainant is that the impugned order is revisable and when alternative remedy is available petition under Section 482 Cr.RC., is not maintainable, defence of the present petitioners could not be looked into at the time of taking cognizance and provisions of Section 197 Cr.RC. could not be attracted as showing disrespect to the flag cannot be termed as an official duty of the present petitioners and they cannot be protected under the garb of provisions of Section 197 Cr.RC., specific allegations have been lodged against the present petitioners, hence cognizance has rightly been taken against the present petitioners and there is no infirmity in the impugned order. 4. Heard the learned counsel for the petitioners and learned Public Prosecutor as also counsel for the complainant and perused the impugned order as well as the documents produced by the petitioners. 5. 4. Heard the learned counsel for the petitioners and learned Public Prosecutor as also counsel for the complainant and perused the impugned order as well as the documents produced by the petitioners. 5. The first contention of the respondent is that order of cognizance is revisable one and hence petition under Section 482 Criminal Procedure Code is not maintainable and reliance has been placed on Om Kr. Dhankar v. State of Haryana & Anr., 2012 (1) WLC (SC) Cr. 667 and Fariyad v. State, 2012 WLC (Raj.) UC 504 wherein it has been held that against order of cognizance revision is maintainable. There is no dispute about this legal position. 6. On the other hand, the contention of counsel for the petitioners is that availability of alternative remedy is not a bar for entertaining petition under Section 482 Cr.RC. and reliance has been placed on Dhariwal Tobacco Products Limited & ors. v. State of Maharashtra & Anr., (2009) 2 SCC 370 ; and Punjab State Warehousing Corporation, Faridkot v. M/s. Sh. Durga Ji Traders & Ors., AIR 2012 SC 700 where it has been held that in appropriate cases inspite of alternate remedy, extraordinary powers of the court should be exercised because the extraordinary powers of the court are for advancement of justice and in fit cases, the power should be used to promote justice and if allowing the proceedings to continue is abuse of process, there is no limitation on the powers under Section 482 Criminal Procedure Code to quash the proceedings if the facts and circumstances of the case so justified. In the light of the above, the petition is maintainable subject to the fact that if any case is made out for quashing of the proceedings. 7. The other contention of the respondent is that defence documents cannot be looked into at the stage of cognizance and reliance has been placed on State of Orissa v. Debendra Nath Padhia, (2005) 1 SCC 568 wherein in reference to Section 227, 228 and 239 of Cr.RC., it has been held that at the stage of framing charges, the trial court cannot consider the material filed by the accused. But here in the present case, the documents have been filed before this Court and petitioner has relied upon Rajiv Thapar & ors. But here in the present case, the documents have been filed before this Court and petitioner has relied upon Rajiv Thapar & ors. v. Madan Lal Kapoor, (2013) 3 SCC 330 wherein it has been held: "To invoke its inherent jurisdiction under Section 482 of the Cr.RC. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.RC. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice." 8. In view of the above, it can safely be concluded that the material produced by the defence should be looked into if the defence is sound and reasonable and documents are genuine ones and uncontroverted. 9. The contention of the present petitioners is that the State Government has imposed order Section 144 Cr.RC. on the impugned area in which SMS Stadium is situated and admittedly, complainant and other persons were in a mob and it was the duty of the present petitioners to stop them in entering the premises, order of Section 144 Cr.RC., dated 5.8.2006 which was operative till 6th October, 2006 has been placed on record, genuineness of which is not in dispute. The contention of the complainant is that they were entering into the premises peacefully and hence they cannot be obstructed but the order dated 5.8.2006 passed under Section 144 Criminal Procedure Code, clearly prohibits persons 5 or more to assemble or to demonstrate etc. and the paper cutting which has been placed by the complainant himself clearly suggests that complainant and others who were more than 5 in number were trying to enter into SMS Stadium and their intention was to hoist the flag at the premises and as per order of Section 144 Cr.RC. it was duty of the present petitioners to stop them and admittedly, complainant and others were not following the law which was enforceable as per the order of Section 144 Cr.RC. The reference has also been made by the counsel for the petitioners as regards Section 79 IPC wherein act done by a person justified by law, in doing it is no offence. Present petitioners who are (were) admittedly, Superintendent of Police and Additional District Collector and S.D.M. of the area are (were) duty bound to implement the order passed under Section 144 Cr.RC. 10. The other contention of the present petitioners is that vide order passed in Dr. Anil Sharma v. State of Raj. & ors., 2001 (4) WLC (Raj.) 4 in a public interest litigation, the Division Bench of this Court has held that SMS Stadium could be used exclusively for the purpose of sports and only national functions were allowed to be celebrated on that land and for any other purpose, permission is needed and admittedly the complainant was not having the requisite permission. It has been contended that they were having oral permission but no sanctity could be attached to an oral permission whereas in Dr. Anil Sharma (supra), the Court held that no other activity could be undertaken in SMS Stadium except sports activities. The contention of the respondent is that under Article 19 of the Constitution of India, they have right to fly the flag and their right cannot be restricted by way of an administrative order passed under Section 144 Cr.RC. and reliance has been placed on Union of India v. Naveen Jindal & Anr., (2004) 2 SCC 510 . The contention of the respondent is that under Article 19 of the Constitution of India, they have right to fly the flag and their right cannot be restricted by way of an administrative order passed under Section 144 Cr.RC. and reliance has been placed on Union of India v. Naveen Jindal & Anr., (2004) 2 SCC 510 . The law laid down in Naveen Jindal (supra) clearly states that every citizen has a fundamental right to fly the national flag but at the same time, it has been held that it is not an absolute right and it can be subjected to reasonable restrictions and here in the present case, order under Section 144 Criminal Procedure Code was operative, complainant was not having any permission for hoisting the flag and in violation of order under Section 144 Criminal Procedure Code, they entered into the SMS Stadium and it was duty of the present petitioners to stop them. 11. The other contention of the respondent is that as per Flag Code of India, every person can fly the flag. There is no dispute about this right of the complainant but it is subject to reasonable restrictions and complainant was not entitled to fly the flag at SMS Stadium without a proper permission and that too in violation of order under Section 144 Cr.RC. 12. The other contention of the present petitioners is that taking the complaint and statement of complainant and other witnesses on its face value, no case to proceed against the present petitioners is made out' in the complaint and even in the statement of Kamlesh Sharma and other witnesses, nothing has been stated against the present petitioners, only their presence has been shown and allegations as regards to lowering down the flag are alleged against the police force not specifically against the present petitioners and in the backdrop of this factual scenario that in spite of order of 144 Cr.RC. in operation, complainant and other persons were entering into the SMS Stadium to fly the flag for which they were not entitled and the present petitioners were there to stop them and it was duty of the present petitioners to maintain law and order and manner of the incident which has been stated in the complaint and during enquiry reveals that the intention of the present petitioners was to stop the complainant and the mob and by no stretch of imagination, it can be said that they were there with intention to show disrespect to the flag. The complaint and statements of witnesses clearly speak that the complainant and other party were trying to enter into SMS Stadium to fly the flag in spite of restrictions under Section 144 Cr.RC. and present petitioners and others have stopped them in pursuance of their duty and the court below has not considered the facts of the case in right perspective. AW/2 Mukesh Kumar stated that flag was in the hand of Kamlesh but it has touched on the ground, it was the act of complainant and no other was responsible for the same, hence the facts narrated in the complaint and statement recorded under enquiry taken on its face value could not make out a case against the present petitioners to proceed. 13. The other contention of the present petitioners is that present petitioners were admittedly there on their official duty to maintain law and order and anything that had been done while discharging their official duties cannot be termed as offence. Section 79 IPC protects them and also a protection has been give under Section 197 Cr.RC. The contention of the respondent is that this controversy cannot be raised at this stage. That defence is available during trial and reliance has been placed on R.K. Pradhan v. State of Sikkim, (2001) 6 SCC 704 wherein it has been held: "It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. 14. But here in the present case, the court has clearly held chat question of sanction under Section 197 of the Code can be-raised at any time and it is for the court to see whether alleged act has been done in discharge of official duty or not. Hence the contention of the respondent that protection of Section 197 Cr.RC. could not be claimed at the stage of cognizance is unsustainable. 15. The contention of the respondent is that to show disrespect to the flag or to give beating to the complainant are not the acts which can be termed as committed in discharge of official duty and reliance has been placed on Ramjas & ors. v. State of Raj., RLR 1999 (1) 599 where police officers were not charged for the duty of maintenance of public order, in spite of this they had arrested, the complainant, taken him to the police station and gave beating. Here in the present case, the present petitioners were duty bound to maintain law and order at the particular place and Roznamcha of that day has also been placed on record which speaks that in spite of order in operation under Section 144 Cr.RC.,complainant and other persons came there in a mob and they started giving beating and had fight with the police personnel. It is also stated in the Roznamcha that they were having national flag and they have been instructed that national flag should be carried away from the mob. It is also stated in the Roznamcha that they were having national flag and they have been instructed that national flag should be carried away from the mob. It is has also been stated that at 7.30 AM on the same day, flag has been hoisted on the same premises and again orr the same day, flag cannot be hoisted on the same place, this also shows background of the incident. The respondent has submitted that whether Section 197 Cr.RC is applicable or not would depend upon the test that the alleged act or omission has been committed while acting in official duty or not, if the answer is in affirmative, then only protection of Section 197 Cr.RC. can be granted and reliance has been placed on State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 . There is no dispute about this legal proposition. 16. Here in the present case, the act of the present petitioners had a direct and reasonable connection with discharge of their official duty. They were there to maintain law and order and to get complied with the order of 144 Cr.RC., which was to be followed by the complainant hence there is direct nexus between the act of the present petitioners and their official duty. Reliance has been placed by the petitioners on Rakesh Kumar Mishra v. State of Bihar, AIR 2006 SC 820 ; and Anil Kumar & Anr. v. M.K. Aiyappa & Anr., 2013 X AD (SC) 386 wherein it has been held that at pre-cognizance stage, the Magistrate has to consider the issue whether previous sanction is necessary. Here in the present case, admittedly present petitioners were working as public servants who were liable and responsible to maintain law and order situation and complainant were violating the law and court below has not considered the complaint and allegations in the light of these facts which show that the complaint has been filed just to pressurise the petitioners and to have personal vendetta with them. The overall facts and circumstances of the case clearly suggest that continuation of proceedings would be abuse of process of the court and if such orders are being remained operative, the police officers working will be adversely affected. The overall facts and circumstances of the case clearly suggest that continuation of proceedings would be abuse of process of the court and if such orders are being remained operative, the police officers working will be adversely affected. The court below has taken cognizance without applying the mind on the relevant facts of the present case that they were there in their official capacity to maintain law and order and proceedings are motivated with malice and intention behind initiating the proceedings is to prevent public servants from discharging their duty. The averments and the facts stated in the complaint are not disclosing commission of any offence by the petitioners and the complainant himself has stated that after the incident, he went to narrate the incident to petitioner No. 1 which itself shows that petitioner No. 1 was not a party in any of the incidents and he has been informed by the complainant himself. This is also an added advantage in favour of petitioner No. 1. Reliance has been place on M.N. Ojha & ors. v. Alok Kumar Srivastava & Anr., (2009) 9 SCC 682 wherein it has been held as under: "This is one case where the averments and allegations made in the complaint do not disclose the commission of any offence by the appellants or any one of them. They were merely discharging their duties to realise and recover the amounts due to the bank from the borrower as well as. the guarantors. The complaint obviously has been filed as counter blast to the proceedings already initiated by the bank including the first information report lodged by the first appellant against the complainant and the borrower for the offences of cheating and misappropriation.' 17. In view of the above, the manner of events undoubtedly suggest that the criminal proceedings have been malafidely instituted with an ulterior motive and taking personal vendetta with the petitioners and with clear intent to prevent public servants from discharging their official duty. The order of the court below is perverse and liable to be quashed.In view of the above, the petition succeeds and is allowed. The impugned order dated 1.9.2006 passed by Additional Chief Judicial Magistrate No. 4, Jaipur City, Jaipur in complaint No. 1592/2006 is quashed.Petition Allowed. *******