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2013 DIGILAW 415 (JK)

Shafaqat Ali Watali v. Gh. Ali

2013-07-23

ALI MOHAMMAD MAGREY

body2013
1. This petition under Section 561-A Cr. P. C. has been filed by the petitioner seeking quashing of the proceedings pending in the court of learned Chief Judicial Magistrate, Jammu, in private Complaint titled Ghulam Ali v. Shafaqat Ali Watali, and the order of cognizance dated 30.05.2007 passed by the trial court, as also the order dated 08.07.2011 passed in file no.31/Rev by the learned Principal Sessions Judge, Jammu, whereby the learned Principal Sessions Judge, while dismissing for non-prosecution the revision petition, filed by the petitioner against the aforesaid cognizance order, has proceeded to record that "otherwise the impugned order summoning the petitioner after taking cognizance of an offence can't (be) challenged and is not maintainable. The remedy at the most is u/s 561-A Cr. P. C". 2. I have heard learned counsel for the parties, perused the record and considered the matter. 3. Genesis of the matter needs a brief narration. The respondent herein on 17.02.2006 filed a private complaint against two accused, namely, Mr. Shafaqat Watali, SSP, Traffic, Jammu, and Mr. Ashok Sharma, SDPO, City, Jammu, for offences punishable under Sections 323, 341, 500, 504, 506 and 380 RPC before the learned Chief Judicial Magistrate, Jammu, on the allegations that on 10.02.2006, while he reached at Shahidi Chowk, Jammu in Gypsy no.5838/DL2-CA, the accused pounced upon him, caught hold of his neck and pushed him out of the vehicle. His shirt was torn and he was beaten by fists and blows. He was harassed, humiliated, tortured and abused. The accused persons fully knew that the complaint was Secretary of JKNPP. The accused persons demonstrated such a high handed drama in front of Congress main office, Shahidi Chowk, Jammu, with calculated and mala fide intention just to please their political congress activists and bosses. The complainant was highly defamed by such brutal acts of the accused persons. In the aforesaid complaint, the complainant also stated that he immediately rushed to the Police Station, Peer Mitha, Jammu, where he filed an FIR against the accused persons. Besides, it was also stated by him that he had also filed an application against the said incident to the Director General of Police, J&K dated 11.02.2006. Photocopies of the FIR and the said application were appended with the complaint by the complainant. 4. Besides, it was also stated by him that he had also filed an application against the said incident to the Director General of Police, J&K dated 11.02.2006. Photocopies of the FIR and the said application were appended with the complaint by the complainant. 4. On presentation of the complaint, the learned Chief Judicial Magistrate, after recording the statement of the complainant and one of his witnesses, namely, Bansi Lal Sharma, Advocate, ordered the SHO P/S Peer Mitha to inform the Court whether a case had been registered with regard to the occurrence in question and, if so, whether the same was under investigation. The matter was fixed for 27.02.2006. In response, the Police reported that the complaint of the complainant was found to be false. However, two FIRs, viz. FIR no.7/2007 for offences punishable under Sections 253/506 RPOC and FIR no.8/2006 for the offence punishable under Section 341 RPC stood registered with the Police Station against the complainant. 5. On receipt of the police report the learned Magistrate recorded that in view of the contradictory versions put forth by the complainant and the police regarding the occurrence in question, he was of the opinion that before proceeding further in the matter an enquiry should be made in respect of the allegations made in the complaint for the purpose of ascertaining the truth or falsehood about the said allegations. The learned Chief Judicial Magistrate, accordingly, vide order dated 27.02.2006, referred the matter for enquiry under Section 202 Cr. P. C. to the IGP, Traffic, Jammu. The IGP, in view of his preoccupation with his duty, expressed his inability to do so. Consequently, the enquiry was entrusted to Special Municipal Magistrate, Jammu. The learned Special Municipal Magistrate, Jammu, vide his order dated 21.04.2007 reported that prima facie the allegations leveled against opposite party no. 1 fulfill the ingredients of offence under Section 504 RPC. Obviously, the other allegations made by the complainant were found to be false. 6. On receipt of the report from the Special Municipal Magistrate, Jammu, the learned Chief Judicial Magistrate, Jammu, on 30.05.2007 took cognizance of the complaint ordering as under: "From the careful perusal of the enquiry report submitted by Ld. Enquiry Magistrate, I am of the opinion that there are sufficient grounds for proceeding against the accused No. 1 for the commission of offence u/s 504 RPC. Let a bailable warrant to the tune of Rs. Enquiry Magistrate, I am of the opinion that there are sufficient grounds for proceeding against the accused No. 1 for the commission of offence u/s 504 RPC. Let a bailable warrant to the tune of Rs. 10,000 be issued against the accused no.1 to secure his presence in the court on the next date of hearing. 7. Against the aforesaid order dated 30.05.2007, the petitioner filed a criminal revision before the learned Principal Sessions Judge, Jammu, which was dismissed by the learned Principal Sessions Judge, Jammu, vide order dated 8.7.2011 in the manner as mentioned above. 8. In this petition filed under Section 561-A Cr. P. C., the petitioner has raised numerous grounds to challenge the order dated 30.05.2007 passed by the learned Chief Judicial Magistrate, Jammu, as well as the order dated 8.7.2011 passed by the learned Principal Sessions Judge, Jammu. It is stated that the following facts are clearly discernable from the record of the learned Chief Judicial Magistrate as also of the enquiry Officer: i) That the incident related to the discharge of duties by traffic police officer at Shahidi Chowk; ii) That it was within the competence and authority of the traffic police authorities, including the petitioner herein to have laid a Naka at Shahidi Chowk to regulate the traffic; iii) That petitioner was at the relevant point of time Sr. SSP, Traffic, Jammu, and it was within his nature of duties to, not only supervise, but also ensure orderly traffic and stop violations of offences committed under the Motor Vehicles Act; iv) That respondent was signaled to stop by the competent police traffic officer so that the vehicle for its documents etc. could be checked. One of the grounds, rather the vital ground, raised is that the learned Chief Judicial Magistrate was not competent to take cognizance of the offence against the petitioner, who, admittedly, is a public servant, since the offence is alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. Reference in this connection was made to Section 197 of the Code of Criminal Procedure. For facility of reference, the aforesaid provision of law is extracted below: "197. Reference in this connection was made to Section 197 of the Code of Criminal Procedure. For facility of reference, the aforesaid provision of law is extracted below: "197. Prosecution of Judges and public servants: (1) When any person who is Judge within the meaning of section 19 of the Ranbir Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the State Government or the Government of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no court shall take cognizance of such offence except with the previous sanction -- (a) in the case of persons employed in connection with the affairs of the Union, of the Government of India; and (b) in the case of persons employed in connection with the affairs of the State, of the Government." A bare perusal of the aforesaid provision of law makes it manifest that it clearly bars taking cognizance of any offence, except with the previous sanction of the Government. There is no dispute that the petitioner is a public servant employed in connection with the affairs of the State Government. Admittedly, also the cognizance in the instant case has been taken without there being any previous sanction of the Government of Jammu and Kashmir. 9. Learned counsel for the respondent, however, argued that the criminal acts attributed to the petitioner in the complaint were not covered in the official duty of the petitioner. Therefore, according to the learned counsel, the aforesaid provision would not be attracted in the instant case. It was also submitted that, even if so, such a plea could be taken by the petitioner only before the trial court Reliance in this connection was placed by him on the decision of the Allahabad High Court in D.N. Pandey v. State of UP, 2007 (1) Crimes 99; Madhya Pradesh High Court in Amolak Singh Chhabra v. State of Madhya Pradesh, 2007(2) Crimes 222 ; Orissa High Court (DB) in Narasingh Bhoi v. State of Orissa, 2005(2) Judicial Reports (Criminal). 10. 10. On the contrary, the learned counsel for the petitioner has cited and relied upon the decisions of the Supreme Court in Rizwan Ahmed Javed Shaikh v. Jammal Patel, 2001(4) Supreme 236 ; State of Bihar v. P. P. Sharma, (1991) 1 Scale 539 and Gauri Shankar Prasad v. State of Bihar, 2000 (3) Supreme 358 , which declare the law that if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected. In this connection, it would be apt to reproduce herein the conclusion drawn by the Supreme Court in paragraph 14 and 15 of the judgment in Rizwan Ahmed Javed Shaikh v. Jammal Patel (supra) is reproduced herein for ready reference. It reads thus: "In sum, the sine quo non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. While the question whether an offence was committed in the course (of) official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose first deducted by Varadachariar J. of the Federal Court in Hori Ram v. Emperor, 1939 FCR 159, is generally applied with advantage. After referring with approval to those observations of Varadachariar J., Lord Simonds in H.B. Gill v. The King, AIR 1948 PC 128 , tersely reiterated that the `test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office'. Speaking for the Constitution Bench of this Court, Chandrasekhar Aiyer J., restated the same principle thus: `in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do or must be related in some manner, with the discharge of official duty. Speaking for the Constitution Bench of this Court, Chandrasekhar Aiyer J., restated the same principle thus: `in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do or must be related in some manner, with the discharge of official duty. There must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty'. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did not neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected." 11. The question that arises for determination is whether the alleged act of the petitioner of which cognizance has been taken by the learned trial court under Section 504 RPC could be said to be an act done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed. To ascertain it, it would be appropriate to refer to the materials those were brought before the learned Magistrate by the complainant. The relevant portions of the complaint have already been narrated above. 12. Besides what was stated in the complaint, the complainant appended photocopy of the first information report stated to have been made by him immediately after the occurrence at the Police Station, Peer Mitha. The relevant portions of the complaint have already been narrated above. 12. Besides what was stated in the complaint, the complainant appended photocopy of the first information report stated to have been made by him immediately after the occurrence at the Police Station, Peer Mitha. It, inter alia, states as under: "When I reached Shaheedi Chowk, SSP Traffic and Dy.SP Ashok Kumar Sharma, without any cause, signaled to put my vehicle sideways, and at once holding me by throat, brought me out of the vehicle and went away seizing my vehicle, and started beating me. (the words used are `aur ghadi zabt karkey legayey aur mujay marpeet karma shuru kardiya'. " In the complaint, apart from what has been mentioned above, the complainant also stated that the accused persons have made a wrong and baseless statement in the news papers stating therein that he was driving the said Gypsy without license. 13. It is, thus, rather the admitted case of the respondent-complainant that the accused-petitioner was SSP Traffic. It is not the case of the complainant that it was not the official duty of the SSP to stop his vehicle to check his papers. The specific allegation is that the accused `signaled to put the vehicle sideways, and at once holding me by throat'. That being the (alleged) factual version of the complainant, the alleged act of the petitioner cannot be said to be in isolation of the official duty. The act complained of, in the facts and circumstances, is admitted to have been done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed. Since the act complained of in the facts and circumstances, is admitted to have been done while acting as Public Officer and in the course of the same transaction in which the official duty was performed, therefore, petitioner is entitled to protection u/s 197 Cr.P.C. The cognizance taken of the alleged commission of offence being without sanction of the Government as such is held is held as abuse of the process of law. 14. In the above background, this petition is allowed. 14. In the above background, this petition is allowed. Proceedings pending in the court of learned C.J.M, Jammu, in private complaint titled Ghulam Ali v. Shafaqat Ali Watali, and the order of cognizance dated 30.5.2007 passed by the trial court as also the order dated 08.07.2011 passed in file no. 31/Rev by the learned Principal Sessions Judge, Jammu are set aside. The trial court shall close the proceedings forthwith.