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2013 DIGILAW 807 (RAJ)

Gulab Singh v. State of Rajasthan

2013-04-27

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been filed on behalf of the petitioner challenging the order dated 8.3.2010 passed by the learned Addl. Sessions Judge (Fast Track), Anoopgarh, Head Quarter Suratgarh in revision, whereby, the order dated 22.7.2008 passed by the learned Addl. Chief Judicial Magistrate, Suratgarh, Distt. Sri Ganganagar in Criminal Case No. 395/2008 taking cognizance against the petitioner for the offences under Sections 458, 427, 323 and 504 IPC has been affirmed. 2. Briefly stated the facts necessary for the disposal of this misc. petition are that the respondent No. 2 Shri Ved Prakash filed a complaint in the court of the learned Addl. Chief Judicial Magistrate, Suratgarh, Distt. Sri Ganganagar. The allegation in the complaint was that the complainant was a resident of Suratgarh and was practicing as an Advocate in the civil court at Suratgarh. The complainant further alleged that he had filed a complaint against the petitioner Gulab Singh, the SHO, Police Station Suratgarh on behalf of Tonimar and Vinod Patni. The complaint was forwarded to the police under Section 156(3) Cr.P.C. for investigation. The complainant's father Bal Ram gave evidence against the police officers and, therefore, the police officers of the Police Station, Suratgarh were having enmity with the complainant and his family members. The complainant further alleged that repeated messages were being given to the complainant and his father for compromising the aforesaid case and the complainant was being threatened with dire consequences, if the compromise was not agreed to. The complainant further alleged that on 20.6.2007, at about 4 am, he was sleeping nearby his mother and two sisters. His father Bal Ram had gone out of the house for walking, at that time, the petitioner Gulab Singh, S.I., Police Station Suratgarh in a drunken condition accompanied with 30 to 35 other police personnel forcibly entered into the complainant's house. While forcing entry into the house, the door of the house was kicked, due to which, it was cracked and damaged. A ventilator of the house was also damaged. It was further alleged that Gulab Singh entered into the house of the complainant and kicked him awake. When the complainant asked the SHO the reason for barging into his house and as to whether any search warrant was available with him, the SHO abused the complainant and told him that he had no authority to ask for a search warrant. When the complainant asked the SHO the reason for barging into his house and as to whether any search warrant was available with him, the SHO abused the complainant and told him that he had no authority to ask for a search warrant. It was further alleged that Gulab Singh allegedly forcibly pushed the complainant down on the ground and started abusing him. The complainant pleaded that he was a lawyer by profession and the ill behavior should be stopped. On this, Gulab Singh told him that his name would be entered in the 'roznamcha' and that he would be taught advocacy and his father would be taught a lesson that he should not give evidence in future. At that time, the complainant, his mother and sisters started raising pleas for help, on which, the neighbors arrived and on seeing them, the accused went away. 3. The learned Addl. Chief Judicial Magistrate, Suratgarh proceeded to hold an enquiry on the complaint filed by Ved Prakash. The complainant examined himself under Section 200 Cr.P.C. Witnesses Lal Chand, Banwari Lal, Prabhu Dayal and Fakir Chand were examined under Section 202 Cr.P.C. The learned Magistrate at the conclusion of the enquiry, by order dated 22.7.2008 proceeded to take cognizance and issued process against the petitioner herein for the offences under Sections 458, 427, 323 and 504 IPC. 4. The petitioner feeling aggrieved of the order taking cognizance against him proceeded to challenge the same by filing a revision in the Sessions Court concerned. 5. The plea which was taken in the revision petition by the petitioner was that an employee of the Municipality namely Dula Ram had filed an FIR being FIR No. 289/2007 against Bal Ram Verma, the complainant's father for the offences under Sections 332 and 353 IPC. It was pleaded that the Sub Inspector had gone to the complainant's house in relation to the investigation of the said FIR and, thus, the act if any committed by the Sub Inspector was in the discharge of his official duty and, therefore, he was entitled to be given the protection under Section 197 Cr.P.C. 6. It was pleaded that the Sub Inspector had gone to the complainant's house in relation to the investigation of the said FIR and, thus, the act if any committed by the Sub Inspector was in the discharge of his official duty and, therefore, he was entitled to be given the protection under Section 197 Cr.P.C. 6. The revisional Court by order dated 8.3.2010 rejected the revision filed by the petitioner holding that no proof or evidence was filed on the record to demonstrate that the petitioner was assigned the duty to investigate the aforesaid FIR and, thus, the revisional court came to a conclusion that there was no justification on the record for quashing the proceedings against the petitioner by advancing the benefit of Section 197 Cr.P.C. to him. 7. Now, the petitioner has approached this Court by way of instant misc. petition seeking quashing of the order taking cognizance against him for the offences under Sections 458, 427, 323 and 504 IPC passed by the learned Magistrate as well as the order passed by the learned revisional court and all other subsequent proceedings pending against the petitioner in the trial court. 8. Learned counsel Shri H.S. Sandhu appearing on behalf of the petitioner vehemently contended that the petitioner whilst working as a Sub Inspector of the Police Station, Suratgarh had gone to the house of the complainant for investigation of the FIR No. 289/2007, registered against the complainant's father and, thus, he was entitled to claim protection under Section 197 Cr.P.C. for the acts done in the discharge of his official duties. He has placed reliance on the decision rendered by the Hon'ble Apex Court in the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors., reported in AIR 1998 SC 1524 and the judgment rendered by the Hon'ble Jaipur Bench of this Court in the case of Rameshwar Dayal v. the State of Rajasthan & Anr., reported in 1991 Cr.L.R. (Raj.) 563 . Learned counsel for the petitioner whilst relying upon the observations made in the judgment of Rameshwar Dayal (supra) submits that when any police officer is being prosecuted in relation to the acts done by him in the discharge of his official duties, he is entitled to claim protection under Section 197(3) Cr.P.C. on the strength of the Circular G.O. No. 89 dated 31.7.1974 issued by the State Government. Learned counsel for the petitioner thus prays that the instant misc. petition deserves to be accepted and the orders passed by the learned courts below deserve to be quashed. 9. Per contra, learned Public Prosecutor and learned counsel for the respondent No. 2 have vehemently opposed the submissions advanced by learned counsel for the petitioner. Learned counsel for the respondent No. 2 submits that in this case, the petitioner is not entitled to claim protection under Section 197 Cr.P.C. He submits that even if the view expressed by this court in the case of Rameshwar Dayal (supra), that the protective umbrella of Section 197 Cr.P.C. is accepted and followed so as to extend the benefit of the Circular of 1974 to all the employees of the police department, then too, the petitioner has first to establish that the act complained of was done by him in the discharge of his official duty and, thereafter only, he would be entitled to claim the benefit of Section 197 Cr.P.C. 10. Heard learned counsel for the parties, perused the order passed by the learned courts below as well as the record of the case. 11. The question which this court has to consider is as to whether the petitioner being a Sub Inspector of the Police would be entitled to claim and receive the benefit of Section 197 Cr.P.C. Before such a benefit could be granted to the petitioner, it has to be demonstrated that the act in relation whereto the cognizance has been taken against the petitioner was done by him in the course of discharge of his official duty. Whether or not the petitioner had gone to the complainant's house for investigating the FIR No. 289/2007 has to be proved by leading evidence to this effect before the trial court so that the court can reasonably arrive at a conclusion that the petitioner went to the complainant's house for investigating the said FIR. For the present, there are allegations of the complainant that the petitioner along with other employees of the Police Station, Suratgarh unauthorizedly used force and broke into the house of the complainant. The incident is said to have taken place in the early morning, much before the sunrise. For the present, there are allegations of the complainant that the petitioner along with other employees of the Police Station, Suratgarh unauthorizedly used force and broke into the house of the complainant. The incident is said to have taken place in the early morning, much before the sunrise. The petitioner therefore has to demonstrate before the trial court as to whether he was entitled or authorised to enter into the house of the complainant for the purpose of investigating the FIR No. 289/2007 and then only, he would be in a position to claim the benefit of Section 197 Cr.P.C. 12. Whilst giving due regard to the view expressed by the learned Single Bench of this Court in the case of Rameshwar Dayal (supra), even if, it is assumed that all the police officers of the State are entitled to protection under Section 197 Cr.P.C. on the strength of the Circular of 1974, such protection would only be available to the concerned public officers if the court is satisfied that the act complained of was done in the discharge of official duty. 13. Learned counsel for the petitioner has of course placed on record certain photo stat copies of the 'roznamcha' of the Police Station, Suratgarh for the purpose of demonstrating that the petitioner had been authorised to arrest the complainant's father and had gone to the house of the complainant for that purpose. No such document was filed by the petitioner before the revisional court and are obviously not available on the record of the trial court. Therefore, at this stage, this court is not satisfied with the contention of the learned counsel for the petitioner that the petitioner went to the house of the complainant in the bonafide discharge of his official duty. The petitioner will have to demonstrate these facts before the trial court by way of filing an appropriate application under Section 197 Cr.P.C. and leading evidence and, thereafter, the learned trial court would be in position to appreciate these facts in the light of the judgments cited by the learned counsel for the petitioner. 14. Resultantly, the misc. petition as well as the stay petition being bereft of any force are hereby dismissed. 15. 14. Resultantly, the misc. petition as well as the stay petition being bereft of any force are hereby dismissed. 15. However, the petitioner is given liberty to file an application under Section 197 Cr.P.C. before the learned trial court and if by producing undisputed and unimpeachable documents/facts, the petitioner is able to demonstrate before the learned trial court that he was acting in the discharge of his official duty at the time of the incident, the learned trial court shall be at liberty to consider the prayer of the petitioner for being granted benefit of protection of sanction under Section 197 Cr.P.C. in accordance with law.Petition dismissed. *******