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2013 DIGILAW 423 (DEL)

Raj Kumar v. State of NCT of Delhi & Ors

2013-02-25

P.K.BHASIN

body2013
JUDGMENT : P.K.Bhasin, J. This petition is filed by the petitioner-complainant under Section 482 of the Code of Criminal Procedure,1973(in short ‘Cr.P.C.’) challenging the order dated 11th May, 2010 passed by the learned Metropolitan Magistrate whereby his criminal complaint filed against respondents no. 2-5 herein was dismissed as well as the order dated 3rd August, 2010 passed by the learned Additional Sessions Judge whereby the revision petition filed by the petitioner against the said order of the Magistrate was also dismissed. 2. The relevant portions from the complaint of the petitioner-complainant filed in the Magistrate’s Court are re-reproduced below:- “2. That on 30.04.2008 all the aforesaid accused persons came at the Dhaba of the complainant. Accused no.1 stated to be posted as Licensing Inspector in MCD working in Civil Line Zone and other accused mentioned at Sl. No. 2 to 4 stated that they are employed in Delhi Police and at that time their posting was at police station Subzi Mandi. The aforesaid four persons in collusion with each other with intention to extort money from the complainant, came at the shop where they acted absolutely against the law of land and committed serious offence for which they are liable to be prosecuted because accused persons came at the shop/Dhaba at 3.25 p.m. on 30/04/2008 and they started to lifting the articles of the Dhaba. They forcefully and without any written order from any office or court removed a counter lying inside the shop, three gas cylinders, one big gas hot plate, one small gas hot plat, four big “Patilas” and whole cash which was Rs.2000/- to Rs. 2500/-. Son of the complainant i.e. Sonu tried to protest the aforesaid act of the aforesaid accused persons but he was bitterly beaten and the aforesaid items were kept in a tempo and son of the complainant was also forcibly dragged and was sitted in the tempo and tempo was taken without giving any acknowledgement of the items removed from the shop. Complainant immediately rushed at the spot and found that his son was already removed. It is pertinent to mention here that one day prior to this incident the accused persons had come at the complainant’s Dhaba and they demanded Rs.1000/- cash and stressed that they will fetch Rs.1000/- per month. But complainant refused. Complainant immediately rushed at the spot and found that his son was already removed. It is pertinent to mention here that one day prior to this incident the accused persons had come at the complainant’s Dhaba and they demanded Rs.1000/- cash and stressed that they will fetch Rs.1000/- per month. But complainant refused. Thereafter the aforesaid persons rendered threat that they will remove all items of the complainant from his Dhaba. 3. That persons present at the spot disclosed to the Complainant that the Accused persons have taken to Sonu, son of Complainant by giving beatings him even in the vehicle. Complainant know that from Barfkhana to Ghantaghar the aforesaid accused persons used to fetch around Rs.10 lac per month from each and every person who used to sit road side for sale of any item and from other shopkeepers. 4. That at police station Subzi Mandi where he was badly beaten by Accused no. 2 to 4 and thereafter he was directed by Accused no. 2 to 4 to remove all the clothes from his person and he was made naked. Sonu protested for this act. Thereafter Accused no. 2 asked the age of Sonu who disclosed his age as 17 years. But thereafter Accused No. 2 to 4 abused him in very filthy language and directed to Sonu for removal of pant but Sonu refused for the same. Thereafter his pant was forcibly removed and even underwear was also removed and he was made complete naked and Accused persons stated to Sonu by using unparliamentary language that his age is not below 20 years and they hardly allowed to Sonu for wearing the cloths and thereafter he was detained in the lock up and warned him that in case he made any complaint, they will teach a lesson to him and his father............................................................... 5. That complainant also went at the police station where the Accused persons misbehaved with him and abused him by using unparliamentary words. 6. That thereafter Accused no. 2 to 4 cooked up a story of and produced to Complainant’s son before SEM Sarai Rohilla by booking him U/s 107/151 Cr.P.C. though son of the Complainant was supposed to produce before the Juvenile Justice Court and keep him only in Reformatory Home. But all the facts were concealed and kept in illegal detention to Sonu upto 2.00 p.m. next day. But all the facts were concealed and kept in illegal detention to Sonu upto 2.00 p.m. next day. The accused persons 2 to 4 recorded false DD No. 28A....................................... 7. That son of the Complainant was immediately released on bail by SEM on 01.05.2008 and later on the allegations were found false and Complainant’s son was discharged. 8. That Complainant repeatedly requested to Accused persons for return of the articles removed from his shop but neither any receipt was given nor any challan was done by the police and till date all the aforesaid items are not returned. The aforesaid act on the part of the Accused persons is punishable U/s 394/395 of Indian Penal Code. They illegally detained Sonu, son of the Complainant, whereby they committed offence of 342 IPC. They also cooked up a false story levelling false allegations against the son of the Complainant. But Trial Court of Ld. SEM not only released him on bail but also later on discharged from the allegations. Hence that false story written in Kalandara vide DD No. 28A dated 30.04.3008 is offence punishable U/s 193 to 196 IPC.” 3. The learned Metropolitan Magistrate on receipt of the complaint fixed the case for recording of pre-summoning evidence of the petitioner-complainant and after fixing many dates for that purpose but before any pre-summoning evidence could be recorded he suddenly took up the matter for considering the applicability of Section 140 of the Delhi Police Act in the facts and circumstances of the case and after hearing the counsel for the petitioner-complainant the impugned order dated 11th May,2010 was passed dismissing the petitioner’s complaint. The relevant parts of that order of the Magistrate are as under:- “4. Complainant claims that the accused persons having removed his articles from shop without any written order of superior official/court have committed offence u/s 394/395 IPC and having wrongfully detained his son Sonu have also committed offence u/s 342 IPC. He also claims that accused persons have levelled false allegations against his son in the kalandara vide DD no. 28A dated 30.04.08 as the Special Executive Magistrate not only released his son on bail but later on also discharged him from the allegations. 7. He also claims that accused persons have levelled false allegations against his son in the kalandara vide DD no. 28A dated 30.04.08 as the Special Executive Magistrate not only released his son on bail but later on also discharged him from the allegations. 7. Coming to the facts and circumstances of this case, complainant himself has alleged that on 30.04.08 the accused persons had come to his shop and had moved/lifted his articles from Dhaba forcefully without any written order from superior official or court. He has also alleged that his son Sonu was forcibly taken to PS where he was kept in confinement on 30.04.08 was produced before the Special Executive Magistrate on the next date i.e. 01.05.08 at 2 pm. 8. Considering that in the present case at hand as per the complainant’s own case the accused persons had come to his shop on 30.04.08 at about 3.25 pm and his son who was apprehended by the police/accused persons was produced before Special Executive Magistrate on the next date i.e. 01.05.08 at 2 pm upon Kalandara/DD no. 28A, so, as far as allegations of illegal confinement u/s 342 IPC is concerned, the same is not made out against accused persons as they had apprehended his son upon kalanadara in discharge of their duty as police official and had reduced same within 24 hours before Special Executive Magistrate. 9. As far as the offence u/s394/396 IPC are concerned accused no. 1 as per the memo of parties is working as Licencing Inspector5 and accused no. 2 to 4 are employees under Delhi Police and they had acted in discharge of their official duty while removing the articles belonging to the complainant kept at Dhaba in Shop no. 315, Main Market, Subzi Mandi. Since, the act of removing the articles kept at Dhaba in shop no. 315, Main Market, Subzi Mandi was done by the accused persons in discharge of their official duty, so the contention of the complainant that bar of section 140 D.P. Act does not apply to this case and does not convince the court as from the allegations against the accused persons made in the complaint, it is clear that act had been done under colour of their duty, the cases cited by the complainant are not applicable in the facts and circumstances of the case................................... 10. 10. As per section 140 D.P. Act, prosecution shall not be entertained/instituted more than three months after the date of the act complained of and in the proviso to the section it has been mentioned that the court may entertain prosecution against police officer if instituted with previous sanction of the administrator within one year from the date of offence. In the present case at hand no sanction has been granted by the administrator to proceed against accused persons and as revealed from the complainant’s case itself, the alleged offence had been committed on 30.04.08 whereas, the complaint has been filed on 30.02.09 i.e. after delay of more than 3 months after the date of commission of alleged offence. 11. Considering the facts and circumstances of the case and keeping in view the aforesaid discussion, I am of the considered opinion that complaint’s case is hit by section 140 D.P. Act as the offences/act alleged against accused persons has been committed under the colour of duty. Since, no sanction has been accorded to prosecute the accused and complaint has not been instituted within three months from the date of alleged act, so, complaint against accused persons is not maintainable and accordingly, I decline to take cognizance of the offence against accused persons, in view of the bar against prosecution of police officials for act done under the colour of duty or authority. Complaint stands dismissed and file be consigned to Record Room.” 4. The said order was challenged by the petitioner-complainant by filing a revision petition before the Sessions Court but hat revision petition was also dismissed by the learned Additional Sessions Judge vide order dated 03-08-2010. Hence, the present petition before this Court came to be filed. 5. Notice of this petition was directed to be given to respondents no.2-5 for whose prosecution the petitioner-complainant had filed the criminal complaint but they did not enter appearance despite service of notices upon them nor they filed any reply opposing this petition. 6. I have heard the learned counsel for the petitioner-complainant. 7. The complaint of the petitioner-complainant was taken up for the first time by the learned Metropolitan Magistrate on 10th February,2009 when the petitioner-complainant was called upon to adduce pre-summoning evidence on 6th March,2009. 6. I have heard the learned counsel for the petitioner-complainant. 7. The complaint of the petitioner-complainant was taken up for the first time by the learned Metropolitan Magistrate on 10th February,2009 when the petitioner-complainant was called upon to adduce pre-summoning evidence on 6th March,2009. Thus, it becomes clear that on 10th February,2009 the learned Magistrate had found the complaint to be disclosing a cognizable offence justifying taking cognizance in the matter and requiring the complainant to adduce his pre-summoning evidence. Though not specifically mentioned in that order that cognizance was being taken but that is implicit in the order requiring the complainant to adduce pre-summoning evidence since without taking cognizance the Magistrate could not have asked the complainant to adduce pre-summoning evidence. On that date the Magistrate could either direct the police to investigate the allegations, which could be ordered without taking of cognizance by the Magistrate, or to proceed further to examine the complainant and his witnesses after taking cognizance. The Magistrate in the present case on receipt of the complaint decided to proceed straightaway for recording the complainant’s pre-summoning evidence instead of ordering police investigation. Taking cognizance also shows that the Magistrate at the initial stage was satisfied that on the basis of allegations made in the complaint, which have already been reproduced in extenso, there was no bar under Section 140 of the Delhi Police Act. 8. It was rightly submitted by the learned counsel for the petitioner-complainant that having taken cognizance on the first date itself and having called upon the complainant to adduce pre-summoning evidence the learned Magistrate thereafter could not say subsequently, as had been done by him in the impugned order, that he was not taking cognizance. The cognizance already stood taken. The Magistrate could refuse to summon the respondents 2-5 herein only after recording pre-summoning evidence in case no case was considered to be made out for issuing process against them and not without giving opportunity to the complainant to substantiate his allegations against respondents no.2-5 herein by adducing necessary evidence. 9. Thus, it is clear that the procedure adopted by the learned Magistrate in the present case for the dismissal of the complaint was opposed to the provisions of law and the learned revisional Court also committed a grave legal error in upholding the order of the Magistrate. 9. Thus, it is clear that the procedure adopted by the learned Magistrate in the present case for the dismissal of the complaint was opposed to the provisions of law and the learned revisional Court also committed a grave legal error in upholding the order of the Magistrate. Therefore, the orders of the both the Courts below are liable to be set aside. 10. This petition, therefore, succeeds. Impugned orders of the trial Magistrate as well as of the revisional Court are set aside. The matter is sent back to the trial Court to proceed with the recording of pre-summoning evidence of the petitioner-complainant and then to take a fresh decision in accordance with law after considering that evidence whether to issue process against respondents no.2-5 herein or not. The case shall now be taken up by the Magistrate on 4th April, 2013 at 2 p.m.