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2019 DIGILAW 1040 (ALL)

Ramjeet Yadav v. State of U. P.

2019-04-23

DINESH KUMAR SINGH

body2019
JUDGMENT : DINESH KUMAR SINGH, J. 1. The present petition under Section 482 Cr.P.C. has been filed challenging the order dated 8.9.2008 passed by the Chief Judicial Magistrate, Lucknow in Complaint Case No.6729 of 2007, whereby the petitioners have been summoned under Sections 452, 323, 504, 506 IPC and 3(1)(X) SC/ST Act. 2. The petitioners are the police officials, who were posted at the relevant time at Police Station Chowk. The police persons were informed that some persons are stealing Suitcases/Briefcases of the passengers from the train. During raid, they recovered Suitcases of international brand along with some clothes and other belongings of the passengers. The accused along with one Pratap Pasi were arrested and they were sent to prison. Pratap Pasi died in the prison within a month due to natural cause as he was suffering from Cancer, which spread upto Liver. At the time of post-mortem, it was opined that the cause of death was due to anemia and Liver Cancer. After the death of Pratap Pasi, his wife Smt. Shiv Devi filed a criminal complaint alleging that the petitioners on 12.10.2006 at 12'O Clock in the night came to their house and severely assaulted her husband Pratap Pasi and they demanded Rs.25,000/- from her husband and said if the amount was not given, they would kill her husband in an encounter. After recording the statements under Sections 200 and 202 Cr.P.C., the petitioners had been summoned vide impugned order for the offences mentioned above. However, the Magistrate did not summon the petitioners under Sections 302 or 304 IPC. 3. Heard Sri Salil Kumar Srivastava, learned counsel representing the petitioners and Sri L.J. Maurya, learned AGA representing the State. 4. Learned counsel for the petitioners submits that petitioners are the police officials and were performing the public duty on the date of alleged incident. While they were investigating the offence, they raided the house of the deceased Pratap Pasi and others and they had recovered the stolen articles from their possession. 4. Learned counsel for the petitioners submits that petitioners are the police officials and were performing the public duty on the date of alleged incident. While they were investigating the offence, they raided the house of the deceased Pratap Pasi and others and they had recovered the stolen articles from their possession. Section 197 Cr.P.C. has been incorporated under the Cr.P.C. to provide protection from harassment and false prosecution of the public servants and, therefore, it provides that if an alleged offence has been committed during the discharge or purported discharge of public duty/function, the trial court can take cognizance only after the sanction has been accorded by the competent authority under Section 197 Cr.P.C. He further submits that since there was no sanction accorded by the competent authority in the present case to prosecute the petitioners, the summoning order dated 8.9.2008 is liable to be quashed. 5. To buttress his submission, learned counsel for the petitioners has placed reliance upon an order of the Hon'ble Supreme Court in the case of Ashok Mehta and another v. Ram Ashray Singh and others, (2004) 13 SCC 705 . Paragraph three of the aforesaid order reads as under :- "3. It appears that in Special Case No. 1 of 2001, the learned Special Judge, Central Bureau of Investigation, Dhanbad, directed that matter for taking cognizance upon the complaint filed for prosecution of the appellants under Sections 467, 468, 471, 477-A read with Section 120-B of the Indian Penal Code and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988, shall be considered only after sanction is obtained. Against the said order, matter was taken to the High Court by the complainant giving rise to Criminal Miscellaneous Petition No. 5142 of 2001, wherein by the impugned order, the High Court directed the trial court to take cognizance and proceed with the trial observing that cognizance can be taken even without obtaining sanction and the same can be obtained later on. The reasoning of the High Court was not only fallacious, but wholly unknown to law and it was not at all justified in interfering with the order passed by the trial court." 6. Learned counsel for the petitioners has also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Sankaran Moitra v. Sadhna Das and another, (2006) 4 SCC 584 . Learned counsel for the petitioners has also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Sankaran Moitra v. Sadhna Das and another, (2006) 4 SCC 584 . Paragraphs 22 and 23 of the aforesaid judgment read as under :- "22. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question. 23. Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly, that the appellant was in uniform; that the appellant travelled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197(1) of the Code. But, as can be seen from the facts disclosed in the counter-affidavit filed on behalf of the State based on the entries in the general diary of Phoolbagan police station, it emerges that on the election day information was received in the police station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties were imminent. It was then that the appellant reached the site of the incident in his official vehicle. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the officer-in-charge who was stationed at the spot and thereafter a lathi-charge took place or there was an attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for ill-treatment and he was beaten up by a police constable at the instance of the appellant and the officer in charge of Phoolbagan police station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the general diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code. Going by the principle, stated by the Constitution Bench in Matajog Dobey [ (1955) 2 SCR 925 : AIR 1956 SC 44 : 1956 Cri LJ 140] it has to be held that a sanction under Section 197(1) of the Code of Criminal Procedure is necessary in this case." 7. On the other hand, Mr. Going by the principle, stated by the Constitution Bench in Matajog Dobey [ (1955) 2 SCR 925 : AIR 1956 SC 44 : 1956 Cri LJ 140] it has to be held that a sanction under Section 197(1) of the Code of Criminal Procedure is necessary in this case." 7. On the other hand, Mr. L.J. Maurya, learned AGA submits that it has to be found out as to what extent and how far the public servant working in discharge of his official duties or whether a public servant has exceeded his limit. He further submits that if the public servant has exceeded his limits in discharge of the public duties and has committed an offence, which was not part of the public duty, then the protection under Section 197 Cr.P.C. would not be available. He, therefore, submits that at the threshold, this Court should not quash the summoning order, whereby the petitioners have been summoned to face the prosecution. He further submits that the question of sanction an be considered at the later stage of the trial. 8. To buttress his submission, Mr. L.J. Maurya, learned AGA has placed reliance on judgment of the Hon'ble Supreme Court rendered in the case of Bakhshish Singh Brar v. Gurmej Kaur and another, (1987) 4 SCC 663 . Paragraphs 6 to 8 of the aforesaid judgment read as under :- "6. In the instant case, it is alleged that grievous injuries were inflicted upon the complainant and as a result of injuries one of the alleged accused had died. The question is while investigating and performing his duties as a police officer was it necessary for the petitioner to conduct himself in such a manner which would result in such consequences. It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Section 196 and Section 197 of the CrPC. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind Section 196 and Section 197 of the CrPC. But it is equally important to emphasise that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstance of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence. 7. In that view of the matter we are of the opinion that the order passed by the learned Additional Sessions Judge, Kapurthala, in the facts of this case, was proper and the High Court was right in not interfering with the same. We, therefore, dismiss this petition. 8. We, however, direct that the trial should proceed as expeditiously as possible. We further record that if necessary the question of sanction under Section 197 of the CrPC may be agitated after some evidence have been noted by the learned Additional Sessions Judge." 9. I have considered the rival submissions of the parties carefully. 10. The petitioners had gone to raid the premises of the deceased in discharge of their official duties. The offence alleged to have been committed by them, was during discharge of their public duties. Provisions of Section 197 Cr.P.C. is incorporated to protect the public servants in discharge of their official duties as they must be immuned from being harassed by criminal proceedings and prosecution. 11. The offence alleged to have been committed by them, was during discharge of their public duties. Provisions of Section 197 Cr.P.C. is incorporated to protect the public servants in discharge of their official duties as they must be immuned from being harassed by criminal proceedings and prosecution. 11. Considering the fact that the petitioners had gone to raid the premises of the deceased in discharge of their public duty, I am of the view that the provisions of Section 197 Cr.P.C. are attracted in the present case and since the cognizance has been taken and the petitioners have been summoned without there being sanction under Section 197 Cr.P.C., the impugned order is liable to be quashed. 12. Thus, the petition is allowed and the impugned summoning order dated 8.9.2008 passed by the Chief Judicial Magistrate, Lucknow in Complaint Case No.6729 of 2007 under Sections 452, 323, 504 and 506 IPC read with Section 39(1)(X) SC/ST Act, pending in the Court of Chief Judicial magistrate, Lucknow and the consequent proceedings are hereby quashed.