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2014 DIGILAW 1654 (RAJ)

Devi Dan v. State of Rajasthan

2014-10-10

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner accused against the order dated 25.10.2012 passed by the learned Chief Judicial Magistrate, Sirohi in Cr. Original Case No. 355/2012 (State v. Devi Dan) whereby the learned Judicial Magistrate took cognizance against the petitioner for the offences under Sections 166, 176, 186 and 187 I.P.C. 2. Facts in brief are that the petitioner was posted as the S.H.O., Swaroopganj at the relevant time. It appears that the Judicial Magistrate, Pindwara forwarded certain complaints to the Police Station, Swaroopganj under Section 156(3) Cr.P.C. Despite the lapse of fairly long duration, the complaints were not registered as F.I.Rs. Accordingly, the C.J.M. Sirohi issued a notice dated 12.7.2012 to the present petitioner being the S.H.O. of the concerned police station to show cause as to why the F.I.Rs. were not registered on the basis of seven complaints forwarded by the Court to the Police Station under Section 156(3) Cr.P.C. between the period 4.1.2012 to 25.4.2012. The petitioner, S.H.O. submitted an official reply mentioning that the complaints forwarded to the Police Station by the Judicial Magistrate, Pindwara were registered as F.I.Rs. and a list of the F.I.Rs. was included in the reply. Learned C.J.M. by order dated 25.10.2012 rejected the explanation forwarded by the petitioner holding that the petitioner committed dereliction of duties by failing to timely register the F.I.Rs. on the basis of the complaints forwarded to the police station by the Court under Section 156(3) Cr.P.C. By the same order dated 25.10.2012, the learned C.J.M. proceeded to take cognizance against the petitioner for the offences under Sections 166, 176, 186 and 187 I.P.C. The petitioner has approached this Court by way of the instant misc. petition seeking quashing of the order dated 25.10.2012 passed by the C.J.M. Sirohi by invoking inherent powers of this Court under Section 482 Cr.P.C. 3. Mr. Narpat Singh Charan, learned counsel for the petitioner submitted that the impugned order, apart from being grossly illegal also amounts to a patent abuse of the process of the Court and thus deserves to be set aside. Mr. Narpat Singh Charan, learned counsel for the petitioner submitted that the impugned order, apart from being grossly illegal also amounts to a patent abuse of the process of the Court and thus deserves to be set aside. He submitted that the order impugned suffers from the following two apparent shortcomings, which bring it within the purview of being a gross abuse of process of court:- A. Firstly, he submitted that the alleged offences relate to acts/omissions committed by the petitioner in the bona fide discharge of his official duties and as such, before prosecuting him for the offences allegedly committed during such process, it was mandatorily required to have procured prosecution sanction as per Section 197 Cr.P.C.r. B. Secondly, it is submitted that as per the provisions of Section 195 Cr.P.C., cognizance of the offences for which the petitioner is being sought to be prosecuted could not have been taken without a complaint in writing by the public servant/court concerned. 4. Mr. Charan submitted that admittedly, learned C.J.M. proceeded to take cognizance without following both the aforementioned mandatory requirements of law and accordingly, the impugned order is liable to be set aside as amounting to a gross abuse of the process of the Court. In support of his arguments, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors. reported in 2001 Cr.L.R.(SC)-542 and the decision rendered by this Court in the case of Ram Swaroop Sharma v. State of Rajasthan reported in 2007(5) W.L.C.(Raj.)-796 5. Per contra learned Public Prosecutor submitted that the petitioner being the S.H.O. of the Police Station, Swaroopganj was under an obligation to forthwith register the F.I.Rs. on the basis of the complaints received from the Court. Rather than registering the F.I.Rs. in time, the petitioner kept sleeping over the same and it is only after receiving a notice from the Court that the F.I.Rs. were registered in six out of seven cases forwarded by the Court to the Police Station, Swaroopganj under Section 156(3) Cr.P.C. He argued that it is clearly a case of dereliction of duties by the public servant and thus, the court below was justified in taking cognizance against him. were registered in six out of seven cases forwarded by the Court to the Police Station, Swaroopganj under Section 156(3) Cr.P.C. He argued that it is clearly a case of dereliction of duties by the public servant and thus, the court below was justified in taking cognizance against him. He, therefore, prayed that the impugned order does not call for any interference by this Court in the exercise of the inherent powers of this Court. 6. Heard and considered the arguments advanced at the bar and perused the impugned order as well as the provisions of law referred to by the learned counsel for the petitioner and the case law cited at the bar. 7. The first argument advanced by the learned counsel for the petitioner is that the petitioner was discharging official duty as a public servant being posted as S.H.O. Swaroopganj. Thus, before prosecuting him, for any act or omission done by him during the bonafide discharge of his official duties, it was essential that prosecution sanction should have been sought. According to the learned counsel admittedly, no prosecution sanction was procured before initiating the petitioner's prosecution and thus the impugned order amounts to a gross abuse of the process of the Court and deserves to be set aside. The next argument advanced is that as per Section 195 Cr.P.C. before cognizance could be taken against a person for the offences mentioned in the provision, it is essential that a complaint be filed by the public servant or the Court concerned in writing and thereafter only criminal proceedings are permissible against the accused. 8. So far as the second limb of the argument is concerned, suffice it to say, the Court has taken cognizance against the petitioner for numerous offences including the offence under Section 166 I.P.C. Section 166 I.P.C. is not covered by the list of offences enumerated in Section 195 of the Cr.P.C. As one of the offences for which cognizance was taken is not covered in the list of officers contained in Section 195 Cr.P.C., the prosecution can very well be launched without resorting to the procedure laid down in the said provision. Thus, the argument advanced by the learned counsel for the petitioner that the proceedings are vitiated due to violation of the procedure laid down in Section 195 Cr.P.C. does not appeal to this Court. 9. Thus, the argument advanced by the learned counsel for the petitioner that the proceedings are vitiated due to violation of the procedure laid down in Section 195 Cr.P.C. does not appeal to this Court. 9. The next argument advanced by the learned counsel for the petitioner was that the petitioner's prosecution in absence of a valid prosecution sanction for acts or omissions done by him during bona fide discharge of official duty as S.H.O. of the Police Station Swaroopganj is not permissible. At the outset, it may be noted that the protective umbrella of Section 197 Cr.P.C. is available only to such public servants who are not removeable save by or with the sanction of the State Government. As per the Rajasthan Police Subordinate Service Rules, 1989 the appointing authority of the officers upto the rank of Inspectors/Company Commanders is Director General cum Inspector General of Police. For the post of Sub Inspectors/Platoon Commanders, the appointing authority is Dy. I.G. of Police (Hqrs.) or an officer of the equivalent rank. It is admitted in para no. 1 of the misc. petition that the petitioner was working as a sub inspector at the relevant time and was posted as S.H.O. Swaroopganj. Thus, as the petitioner was an officer in the rank of sub inspector, ipso facto, the protective umbrella of Section 197 would not be applicable to him straight off. The State Government by a notification dated July 31, 1974 has extended the benefit of the Section 197(3) Cr.P.C. to the police officials of all ranks charged with the maintenance of public order, where-ever they may be serving. Undoubtedly, an officer posted as Station House Officer of a Police Station would be a police official charged with maintenance of public order within the area of the police station concerned. The Hon'ble Apex Court in the case of Rizwan Ahmed Javed Shaikh & Ors. v. Jammal Patel & Ors. reported in 2001 Cr.L.R.(SC)- 542 while dealing with a similar notification issued by the State of Maharashtra held that the police officers do discharge duties relating to maintenance of public order in the wider sense and thus extended the benefit of Section 197 Cr.P.C. to the police officers concerned. v. Jammal Patel & Ors. reported in 2001 Cr.L.R.(SC)- 542 while dealing with a similar notification issued by the State of Maharashtra held that the police officers do discharge duties relating to maintenance of public order in the wider sense and thus extended the benefit of Section 197 Cr.P.C. to the police officers concerned. In the case of Ram Swaroop Sharma v. State of Rajasthan reported in 2007(5) W.L.C. (Raj.)-796 the concerned police officer while working in the capacity of S.H.O. of the concerned Police Station sent a report to the Court under Section 202 Cr.P.C. purportedly using derogatory language. The trial court took cognizance against the concerned officer for the offence under Section 500 IPC. The order taking cognizance was challenged on the ground of lack of sanction. This Court held that the report was sent by the police officer in discharge of his official functions. It was also held that the S.H.O. of the Police Station is definitely an officer charged with the maintenance of public order and accordingly, the benefit of notification dated 31.7.1974 was extended to the police officer and his prosecution was quashed in absence of the requisite sanction under Section 197 Cr.P.C. The case at hand also involves similar facts and circumstances. The S.H.O. of a police station discharges his official duties while registering or failing to register a first information report. Non registration of the F.I.Rs. after receiving the complaint under Section 156(3) Cr.P.C. from the Court was definitely an act/omission done by the S.H.O. concerned while discharging his official duties. Thus, the petitioner having been posted as the S.H.O. of P.S. Swaroopganj at the relevant time would be entitled to the protective umbrella of Section 197 Cr.P.C. Cognizance could not have been taken against him for offences under Sections 166, 176, 186 & 188 IPC committed by him during the discharge of official duties, without obtaining prosecution sanction. Admittedly, in the case at hand, no prior prosecution sanction was taken before taking cognizance against the petitioner for the above offences vide order dated 25.10.2012. 10. Resultantly, the misc. petition deserves to be and is hereby allowed. The impugned order dated 25.10.2012 whereby the learned C.J.M., Sirohi took cognizance against the petitioner for the offences under Sections 166, 176, 186 and 187 I.P.C. is quashed.Petition allowed. *******