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Madhya Pradesh High Court · body

2015 DIGILAW 733 (MP)

Vipul Pandey v. State of M. P.

2015-07-16

S.K.PALO

body2015
ORDER 1. This petition under section 482 of the Code of Criminal Procedure has been filed to invoke the inherent jurisdiction of this Court and to set aside order dated 18.3.2006 passed by Chief Judicial Magistrate, Bhind in Criminal Complaint Case No. 550/2006, by which cognizance has been taken against the petitioner under sections 294, 323 of IPC. 2. The respondent No. 2/complainant filed a complaint case in the Court of Chief Judicial Magistrate, Bhind under sections 323, 294, 380, 457, 427 and 500 read with section 34 of IPC against the petitioner and one Brajesh Singh, Home Guard Sainik alleging that in the intervening night of 13th - 14th July, 2005, the accused persons along with other police staff came to the house of the petitioner through the entry of his tenant at about 12:30 a.m. The petitioner allegedly uttered obscene words. They broken open his almirah. The petitioner took away his Rs.80,500/-, one N.P. bore gun. Because of this, the complainant suffered a loss of Rs.7,000/-. This action of the petitioner does not fall under section 197 of the CrPC. 3. On this complaint, after recording statements under sections 200 and 202 of CrPC, the learned Chief Judicial Magistrate, Bhind took cognizance under sections 323 and 294 of IPC against the petitioner by the impugned order dated 18.3.2006 stating that prima facie offence under sections 323 and 294 of IPC is made out against the petitioner. 4. The petitioner has challenged the impugned order and requested to set aside the same on the ground that Crime No.108/2005 was registered on 14.7.2005 for offences under sections 327, 294/34 of IPC read with section 24/27 of Indian Arms Act against Manmohan Singh, Vedri Singh, Rajjan Singh and Manoj Singh. 5. During the investigation, from the custody of Vedri Singh, a 315 bore rifle, 10 live cartridges, Rs.80,500/-, one Farsa, one axe and one Ballam (a weapon of shape of Trishul) were recovered from the house of the complainant/respondent No.2 Rakesh Tomar. This was seized in the intervening night of 13th and 14th July, 2005 at 01:40 a.m. Subsequently, the accused persons including Vedri Singh were arrested. After due investigation, charge-sheet was filed in the Court of JMFC, Bhind on 27.9.2005. The petitioner being a Police Officer acted bonafidely and seized the weapons and other materials pursuant to the necessity of Crime No.08/2005 of Police Station Phoop. After due investigation, charge-sheet was filed in the Court of JMFC, Bhind on 27.9.2005. The petitioner being a Police Officer acted bonafidely and seized the weapons and other materials pursuant to the necessity of Crime No.08/2005 of Police Station Phoop. Thus, the action of the petitioner is protected under section 197 of CrPC. It is also claimed that just to influence and pressurize the petitioner, the complainant/respondent No.2 with intent to blackmail the petitioner filed the criminal complaint case which is liable to be set aside. Cognizance taken by learned Chief Judicial Magistrate on 18.3.2006 is not good in the eyes of law and the same suffers from illegality and irregularity. 6. Learned Public Prosecutor for the State opposed the same and submitted that the impugned order has been passed by the learned Chief Judicial Magistrate on the basis of the prima facie evidence recorded in the complaint case. Therefore, it does not call for any interference. 7. Counsel for the respondent No.2 vehemently opposed the application and it is submitted that the actions of the petitioner is illegal and does not call for any protection under section 197 of the CrPC. He also placed reliance on Sakiri Vasu v. State of Uttar Pradesh and others, reported in (2008)1 SCC (Cri) 440, in which Hon’ble the Supreme Court has held that : “Criminal Procedure Code, 1973 -- Ss. 154(3) and 36, 156(3), 200 and 482 – Interference by High Court or Supreme Court in matters of non-registration of FIR/improper investigation -- Scope of -- Caution and approach of High Court laid down -- High Court to discourage writ petitions or petitions under S.482 CrPC where alternative remedies under S.154(3) r/w S.36 or S.156(3) or S.200 CrPC have not been exhausted, emphasised -- Constitution of India -- Art.226 -- Maintainablity -- Alternative remedy -- Exhaustion of.” 8. The petitioner was Sub-Divisional Police Officer, Jaura at the time of incident. In the seizure memo dated 14.7.2005, the presence of the petitioner has been mentioned by the Officer, who drawn the seizure memo. 9. It is a general tendency to pressurize and humiliate the Police Officers to avoid legal action or to influence the investigation, such complaints are filed. Complaint of this nature are very common in these days. In the seizure memo dated 14.7.2005, the presence of the petitioner has been mentioned by the Officer, who drawn the seizure memo. 9. It is a general tendency to pressurize and humiliate the Police Officers to avoid legal action or to influence the investigation, such complaints are filed. Complaint of this nature are very common in these days. A Police Officer while investigation if arrests a person or takes any action against him, the person arrested generally makes such defence and to humiliate or to exert influence for pressurizing the Police Officers to dissuade him taking any action, such complaints are being made. 10. Reverting to the facts of the present case, in the allegations of the complaint, it is also stated that the Police Officer has taken Rs.80,500/- and a rifle from the almirah of the complainant/respondent No.2. But, these items along with weapons like Farsa, Axe and Ballam were seized at 1:40 a.m. on 14.7.2005. Therefore, cognizance was not taken in the complaint for offence under sections 457, 427, 380 read with section 34 of IPC. Accused Vedri Singh was also arrested in Crime No.108/2005 and charge-sheet has been filed on 27.9.2005. 11. It would be pertinent to mention here that, the learned Chief Judicial Magistrate, Bhind did not mention anything on the question of “sanction for prosecution” in the impugned order, whereas in the complaint, it has been specifically mentioned that section 197 of CrPC is not attracted for the acts of the petitioner. Therefore, the impugned order is not a reasoned order and why sanction is not necessary has not been explained in the complaint. Nor the complainant nor the learned Chief Judicial Magistrate, Bhind madeany effort to reason this in his order. In its very nature, the action of the petitioners falls under the category of “discharge of his officialduty” or “purporting to discharge his official duties”. 12. Surprisingly, the complainant/respondent No.2 has not intended any action against Jayendra Singh, Head Constable, who has drawn the seizure memo on 14.7.2005 which indicates his intention to take revenge against the petitioner only. 13. In the opinion of this Court, protection is available to the petitioner for the alleged act done by him as a Public Servant. Because, his action is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. 13. In the opinion of this Court, protection is available to the petitioner for the alleged act done by him as a Public Servant. Because, his action is reasonably connected with the discharge of his official duty and is not merely a clock for doing the objectionable act. For this, reference can be made to Rakesh Kumar Mishra v. State of Bihar and others, reported in (2006)1 SCC (Cri) 432. 14. It would be pertinent to mention here that, the powers under section 482 of CrPC for quashing of proceedings can be exercised, if (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. Therefore, this power can be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the Court exists. It is also to be kept in mind that while exercising the power, the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused-petitioner. The present petitioner being a Police Officer conducted the enquiry in his presence. The respondent No.2 cleverly did not allege anything against the Investigating Officer or the Head Constable, who has drawn the seizure memo. It is apparent that the complainant has alleged harassment against the petitioner to seek his private vendetta. 15. In the opinion of this Court, it has to be checked and such tendency should not be allowed to be encourage. This view is fortified by the decision rendered by Hon’ble the Supreme Court in Inder Mohan Goswami and another v. State of Uttaranchal and others, reported in (2008)1 SCC (Cri) 259. 16. It is also to be reckoned that issuance of summons to the petitioner by the impugned order is not an interlocutory order within the meaning of section 397 of CrPC. In this regard, reference can be made to R.P. Kapoor v. State of Punjab, reported in AIR 1960 SC 866 ; Som Mittal v. Government of Karnataka, reported in (2008)3 SCC 574 ; and Dharimal Tobacco v. State of Maharashtra, reported in (2009)1 SCC (Cri) 806. 17. In this regard, reference can be made to R.P. Kapoor v. State of Punjab, reported in AIR 1960 SC 866 ; Som Mittal v. Government of Karnataka, reported in (2008)3 SCC 574 ; and Dharimal Tobacco v. State of Maharashtra, reported in (2009)1 SCC (Cri) 806. 17. Hon’ble the Supreme Court has observed that “only because a revision petition is maintainable, the same by itself, in our considered opinion could not constitute a bar for entertaining an application under section 482 of CrPC.” 18. The Magistrate passing an order prima facie in a mechanical fashion without applying his mind, as in the present case, undoubtedly a matter of moment and a valuable right of the petitioner has been taken away. This Court, therefore, is satisfied that the order impugned was one which was a matter of moment and involves the rights of the petitioner. Therefore, this Court is within its right to exercise the powers under section 482 of CrPC but also in terms of section 483 of the CrPC. 19. For the reasons aforementioned the impugned order dated 18.3.2006 cannot be sustained and is set aside accordingly. ...............