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Madhya Pradesh High Court · body

2017 DIGILAW 1195 (MP)

Dhruv Singh v. Shyamlal

2017-11-22

J.P.GUPTA

body2017
ORDER 1. The applicants have preferred this criminal revision under section 397/401 of the Code of Criminal Procedure seeking quashment of the order dated 10.8.2010 passed by Ist Additional Sessions Judge, Sehore in Sessions Trial No.104/2009 whereby charges for the offences under sections 323, 436, 447 and 392 r/w section 34 of the IPC have been framed against them. 2. Facts giving rise to this petition are that respondent No.1 filed a complaint against the applicants before the Court of JMFC, Sehore for taking cognizance under sections 447, 435, 323 and 325 of the IPC alleging therein that the applicants are the employees of the Forest Department and respondent No.1 by caste ‘Korkua’ is a member of Scheduled Caste community and he is a poor person. Hence, he occupied three acres of open land and made it useful for agricultural purposes and under the law he became owner of the said land. The applicants without any authority abused his son Pramod and his wife Saraswati and also beaten them and set ablaze their hut (Taparia) and compelled his son Pramod to drink urine of them and demanded Rs.5,000/- for not registering criminal case against him and they also taken away his two cocks worth Rs.800/- with them. With regard to this incident, a report was made to the Police Station AJAK, Sehore on 14.7.2008 and his son Pramod was medically examined but thereafter, no action was taken against the applicants. Hence, on 5.8.2008 a complaint was filed before the concerned Court below and after taking statements of the complainant/respondent No.1, son Pramod and daughter-in-law Saraswati and Rahul, another son of the complainant, cognizance has been taken against the applicants and the case has been committed to the Court of Additional Sessions Judge, Sehore who after hearing the parties, has framed charges for the offence punishable under sections 323/34, 436/34, 447/34 and 392/34 of the IPC against the applicants by order dated 10.8.2010 which is under challenge. 3. On behalf of the applicants it is submitted that on 28.6.2008, Sarpanch of Gram Panchayat, Imlikheda informed the Forest Officers, Forest Range, Sehore regarding encroachment on the forest land by respondent No.1 and his family and also for creating nuisance. 3. On behalf of the applicants it is submitted that on 28.6.2008, Sarpanch of Gram Panchayat, Imlikheda informed the Forest Officers, Forest Range, Sehore regarding encroachment on the forest land by respondent No.1 and his family and also for creating nuisance. Thereafter, applicants No.1 and 3 initiated eviction proceeding against respondent No.1 who was found encroacher on the forest land and on 12.7.2008 encroachment was removed and a criminal case was registered against them and in accordance with law, charge sheet has been filed. On behalf of respondent no.1 and his family a complaint was made against the applicants to the DSP, AJAK, Sehore, upon which, an enquiry was made and the complaint was found to be false one. During the enquiry, number of independent witnesses were examined. They had not supported the version of the complainant and it was a counter blast of the proceeding initiated against the complainant party. The aforesaid facts were brought to the notice of the trial Court but the trial Court has mechanically ignored the same and also rejected objection of the applicants with regard to applicability of section 197 of CrPC as the complaint/application has been filed without taking sanction from the State Government against the applicants as the allegations are squarely covered in purview of discharging their official duty. Hence, the order of learned trial Court is not sustained. Hence, the revision be allowed and the applicants be discharged. 4. None appeared on behalf of respondent No.1/complainant. 5. Learned Public Prosecutor appearing for the State has argued in support of the impugned order passed by the trial Court and prayed for rejection of the revision. 6. Having considered the contentions of learned counsel for the parties and on perusal of the record it is found that against respondent No.1 for making encroachment on the forest land forest offence bearing RT No.1060/2017 was registered on 11.7.2008 and on 12.7.2008 proceeding for dispossession was taken place and the respondent No.1’s son Pramod was arrested and charge sheet was filed against him. On the complaint made on 14.7.2008 after inquiry, DSP, AJAK, Sehore submitted his report on 18.7.2008 to the Superintendent of Police, AJAK Sehore. On perusal of the material inquiry submitted by the applicants and the report shows that the allegations prima facie are false and counter blast of the proceedings initiated against the respondent No.1. 7. On the complaint made on 14.7.2008 after inquiry, DSP, AJAK, Sehore submitted his report on 18.7.2008 to the Superintendent of Police, AJAK Sehore. On perusal of the material inquiry submitted by the applicants and the report shows that the allegations prima facie are false and counter blast of the proceedings initiated against the respondent No.1. 7. The complaint filed against respondent No.1 and his son and wife on behalf of the forest department was enquired by the Police AJAK Sehore shows that the allegations of the complainant are related to the incident which was taken place during removal of their illegal encroachment on the forest land. Hence, it is clear that the applicants were discharging their official duty as public servant. If during discharging their duty they have exceeded to some extent they cannot be deprived of the protection given under section 197 of CrPC. In this regard, Hon’ble the apex Court in the case of State of Orissa Through Kumar Raghvendra Singh and others v. Ganesh Chandra [ (2004)8 SCC 40 ], in paragraph 7 has held as follows :- The protection given under section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. 8. Similarly Hon’ble the apex Court in the case of Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi and another [ (2012)12 SCC 72 ], after referring to various decisions pertaining to the police excess, summedup the guidelines in paragraph 32 which is as follows:- The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it. (K. Satwant Singh). The protection given under section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. (K. Satwant Singh). The protection given under section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood. 9. In the present case, the aforesaid conduct of the applicants is reasonably connected with the performance of the official duty of the applicants. Therefore, the learned Magistrate should not have taken the cognizance of the offence without the previous sanction of the State Government and the learned trial Court has also ignored this aspect at the time of framing of the charges. 10. In view of the facts and circumstances of the case, the alleged act of the applicants is relating to discharge of their official duty and it cannot be said that it is merely a cloak doing objectionable act. Hence, they are entitled to get protection given under section 197 of CrPC. 11. Hence, the revision petition is allowed. Impugned order dated 10.8.2010 being not sustainable is hereby quashed and the proceedings, if any pending against them, in consequent thereto, are also hereby quashed. A copy of this order be sent to the concerned Court below for information and its compliance.