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Madhya Pradesh High Court · body

2017 DIGILAW 254 (MP)

Aashish Dhurve v. State Of M. P.

2017-02-15

N.K.GUPTA

body2017
ORDER : The applicant has preferred the present petition under section 482 of the Code of Criminal Procedure to quash the proceedings of Complaint Case No. 646/2012 registered against him by the Judicial Magistrate First Class, Ashok Nagar (M.P.), vide order dated 23-5-2012. 2. The facts of the case, in short, are that complainant/respondent No. 2 was preparing for his competitive examinations at his house situated at Ashok Nagar. He was an advocate by profession. Accused No. 1, 2 and 3, namely, Jayesh Josh, Jehran Josh and Manoj Khare @ Kale were the teachers who had objection that complainant was teaching various girls. The accused persons abused him on several occasions and therefore the complainant lodged a complaint to the police against them. On 27-2-2010, the applicant and the aforesaid accused persons visited the house of the complainant and asked about him. Thereafter, the applicant abused and assaulted Smt. Lata and Ms. Chhaya i.e. mother and sister of the complainant respectively. The applicant instructed the family members of the complainant to send him to the police station. At about 10:15 am when the complainant reached his house he went to the police station along with his father. Then the applicant called the other accused persons on phone and all the accused persons assaulted the complainant and he was detained in the lock up. When father of the complainant tried to save him then he was also beaten by the accused persons. Mobile phone of the complainant was also taken. When the complainant prayed to file the complaint, then an FIR under section 155 of Criminal Procedure Code was only registered. Ultimately, after getting bail, the complainant lodged a criminal complaint against all of the accused persons including the applicant. The complainant in his favour examined himself i.e. Satyendra Jain and his family members or friends, namely, Kailash Chand Jain, Hemant Kumar Jain, Smt. Lata Jain, Nitesh Jain, Sudheer Gupta and Arun Sharma under sections 200 and 202 of Criminal Procedure Code. He also filed a copy of the complaint sent to the various officers of police. Thereafter, vide order dated 23-5-2012, the Magistrate registered a criminal complaint against various accused persons including the present applicant for offence under sections 452, 504 and 323 of Indian Penal Code. 3. He also filed a copy of the complaint sent to the various officers of police. Thereafter, vide order dated 23-5-2012, the Magistrate registered a criminal complaint against various accused persons including the present applicant for offence under sections 452, 504 and 323 of Indian Penal Code. 3. In the present matter, notices were issued to respondent No. 2 and he was represented but when the case was repeatedly listed for final hearing, respondent No. 2 did not appear before the Court either in person or with the help of any advocate to argue the matter. 4. I have heard the learned counsel for the parties. 5. First of all, the learned counsel for the applicant has submitted that he has filed the copy of the charge-sheet to show that on the FIR lodged by Jayesh Josh a case was registered for offence under sections 294, 506-B and 327 of Indian Penal Code and the complainant was arrested and at the time of arrest his mobile phone was seized. Seizure was shown in the seizure memo filed in that case. Jayesh Josh had lodged the FIR that complainant was giving threat on phone demanding a sum of Rs. 10,000/- per month from him. He gave the mobile phone number by which he had received 50-60 calls about that threat and therefore, during investigation that mobile phone was seized. Thereafter, the complainant cooked a story with the help of his relatives and friends and lodged a false complaint. 6. After considering the submissions made by the learned counsel for the applicant, it is apparent that alleged incident took place on 27-2-2010 and according to the complainant he was released on bail within 2-3 days. It is pleaded by the complainant that he was produced before the Magistrate initially, however, being an advocate he was aware of the proceedings of law and therefore he could have told that he was beaten by the applicant in the police station and other accused persons were also permitted to beat him but there is no copy of the order or proceeding of the Magistrate filed by the complainant to show that he made such a grievance before the concerned Magistrate. Similarly, he could have requested the Magistrate for his medico-legal examination and his medico-legal examination could have been performed on the directions given by the Magistrate. Similarly, he could have requested the Magistrate for his medico-legal examination and his medico-legal examination could have been performed on the directions given by the Magistrate. Also, when he was released on bail, injuries could have been shown by him to the doctor and thereafter such medical report prepared by the doctor could have been produced by him. It is surprising that the complainant did not take any step in time and he lodged the FIR only on the ground that he made some complaints to the SHO, Police Station Ashok Nagar and many superior police officers that he was given threat by the other accused persons. 7. However, according to the provision contained under section 154 of Criminal Procedure Code if the police refuses to take any action on the complaint made by the complainant then the complainant has to send a written complaint to the Superintendent of Police concerned within reasonable time and if no action is taken by the police then the complaint can be filed. In the present matter, the complainant who was himself an advocate and knowing the provisions of law could not show any reason as to why he did not send a complaint to the Superintendent of Police within time. A copy of the complaint was filed before the Magistrate which was sent to the Superintendent of Police, Ashok Nagar (M.P.) on 4-3-2010 whereas the incident had taken place on 27-2-2010. In these circumstances where the complainant did not request the concerned Magistrate about the assault done by the applicant and other accused persons and he did not get his medico legal examination done with the help of the concerned Magistrate, a doubt is created that the complainant cooked a story after getting bail etc and he could not file any medical evidence in his favour. The relatives and friends of the complaint should have told in his favour due to their interestedness. 8. Initially, the complainant had tried to make a case that the applicant held the hands of his mother with bad intention but there is a lot of contradiction between the evidence given by so many witnesses to that fact. Smt. Lata (PW-6) has stated about the incident. 8. Initially, the complainant had tried to make a case that the applicant held the hands of his mother with bad intention but there is a lot of contradiction between the evidence given by so many witnesses to that fact. Smt. Lata (PW-6) has stated about the incident. She told that the applicant had beaten her daughter and gave slaps but she did not state that the applicant had held her hands and therefore no case of section 354 of Indian Penal Code was registered by the Magistrate against the applicant. If allegations are examined that applicant slapped the witness Chhaya then no other witness had supported that fact. Even the neighbour boy Arun Sharma (PW-7) did not state that the applicant had given any slap to Ms. Chhaya. Hence, the story as mentioned in the complaint against the applicant which took place at the house of the complainant appears to be baseless. It appears that the applicant had gone to the house of the complainant for his arrest and he was not found. Hence, prima facie, no offence under section 452 of Indian Penal Code is made out against the applicant. Similarly, no words spoken by the applicant were reproduced by the witnesses so that it can be said that offence under section 504 of Indian Penal Code was made out. 9. Kailash Chand Jain (PW-2), father of the complainant, was a government officer. If he had been beaten by the applicant then certainly he would have informed the Superintendent of Police, Ashok Nagar (M.P.) immediately and his own higher officers that he was beaten by the police. But no steps were taken by Mr. Kailash Chand Jain (PW-2) in the reasonable period. If complainant Satyendra Jain (PW-1) was beaten with such brutality then he would have turned unconscious and he must have sustained so many injuries. If Kailash Chand Jain (PW-2) was beaten by the applicant then he could get his medical examination done on the same day because he was released in the evening. A claim was made by Kailash Chand Jain, Smt. Lata and others that due to the assault done by the applicant, the complainant is suffering from hard of hearing from year but still no medical certificate is produced in support of such allegations. A claim was made by Kailash Chand Jain, Smt. Lata and others that due to the assault done by the applicant, the complainant is suffering from hard of hearing from year but still no medical certificate is produced in support of such allegations. Under these circumstances where the complainant was an advocate and his father was a government servant, it was not possible for the applicant to behave in such a manner against them. Mainly that MLC report was not produced before the Magistrate to support the prosecution evidence. Hence, prima facie, it appears that after release on bail, the complainant cooked a case with the help of his relatives and friends. 10. Learned counsel for the applicant has also submitted that it was the duty of the Magistrate to seek a sanction under section 197 of Criminal Procedure Code before registration of complaint case. In this connection, he has placed his reliance upon the judgment passed by the Apex Court in the case of Rizwan Ahmed Javed Shaikh and ors. vs. Jammal Patel and ors, AIR 2001 SC 2198 , however, that case was dependent upon the provisions of Bombay Police Act and therefore applicant did not get much help from that judgment. Learned counsel for the applicant has also referred the judgment passed by the Apex Court in the case of D. T. Virupakshappa vs. C. Subash, 2015 MPLJ Online (Cri.) (S.C.) 6 = (2015) 12 SCC 231 in which it is held that protection under section 197 of Criminal Procedure Code is available to the public servant at every stage. It was the duty of the Magistrate to get the sanction order under section 197 of Criminal Procedure Code before registration of the complaint. If the police officer assaults any accused in the custody then it cannot be said that there is no nexus between his overt act and the public duty. If police excesses in connection with the investigation of a minor case, still the sanction under section 197 of Criminal Procedure Code is required. In the present case, it is also apparent that the applicant had visited the house of the complainant in his search. In cognizable offence, he could visit the house of the accused for his arrest without getting any arrest warrant or search warrant and therefore, the applicant did not commit any offence at the house of complainant. In the present case, it is also apparent that the applicant had visited the house of the complainant in his search. In cognizable offence, he could visit the house of the accused for his arrest without getting any arrest warrant or search warrant and therefore, the applicant did not commit any offence at the house of complainant. If it is presumed that he assaulted the complainant at police station then that was the act in excess to his public duties and hence in the light of the aforesaid judgment rendered by the Apex Court in the case of D. T. Virupakshappa (supra), he had a shelter under section 197 of Criminal Procedure Code and no complaint could be registered against him without getting such sanction given by the employer of the applicant. Hence, the trial court has committed an error in registration of the complaint case without getting any sanction under section 197 of Criminal Procedure Code. 11. On the basis of the aforesaid discussion, it is required to give an opportunity to the complainant to get the sanction order against the applicant so that he could prosecute the complaint but since it is apparent that in the absence of any medical report and looking to the delay in making complaint to the concerned Superintendent of Police concerned case of the complainant is doubtful and hence a public servant cannot be harassed by such prosecution. It is a good case in which the inherent powers of this Court may be exercised in favour of the applicant. 12. Consequently, the present petition under section 482 of Criminal Procedure Code filed by applicant, namely, Aashish Dhurve is hereby allowed. The proceedings of complaint case No. 646/2012 pending before the Judicial Magistrate First Class, Ashok Nagar (M.P.) against the applicant are hereby quashed. The JMFC, Ashok Nagar (M.P.) is directed to drop the proceedings immediately against the applicant. 13. A copy of this order be sent to the court below for information and compliance.