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2019 DIGILAW 718 (RAJ)

Udai Singh Jat v. State of Rajasthan

2019-03-05

KANWALJIT SINGH AHLUWALIA

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JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. The present petition has been filed under Section 482 Cr.P.C. praying that the order dated 15.12.2015 passed by Additional Session Judge, Sawai Madhopur in Cr. Revision No. 265/2012 whereby the court accepted the Criminal Revision filed by the respondent No. 2, be set aside. 2. It is submitted that the revisional court below committed a grave error to set aside the order dated 27.8.2012 passed by the Judicial Magistrate, First Class, Bonli, Sawai Madhopur, whereby the said court in Complaint No. 24/2010 had refused to take cognizance of offences against the petitioner for offences u/Secs. 166, 167, 193, 195, 196 IPC for want of prosecution sanction. 3. It is further prayed that the subsequent order dated 2.4.2016 passed by the court of Judicial Magistrate, Bonli, Sawai Madhopur, whereby the said court had taken cognizance of offences u/Secs. 166, 167, 193, 195 and 196 IPC, be set aside, as the said court had committed a grave error to take cognizance of offences under Sees. 193, 195 and 196 IPC in view of Sec. 195 Cr.P.C., which prescribes bar to prosecute the accused for offences under Sections 193, 195 and 196 IPC except upon complaint in writing by the said court. 4. Learned counsel for the petitioner has submitted that the petitioner being posted as SHO at Police Station Bonli, Sawai Madhopur had investigated FIR No. 102/2007 registered at Police Station Bonli for various offences. Learned counsel for the petitioner has contended that in the said FIR, respondent No. 2 was tried as an accused. It is submitted that all the witnesses turned hostile and the respondent No. 2 was acquitted by the trial court. Learned counsel for the petitioner has contended that after the respondent was acquitted, he filed a complaint bearing No. 24/2010 in the court of Judicial Magistrate, Bonli, Sawai Madhopur. Learned counsel for the petitioner has contended that upon the said complaint, the court of Judicial Magistrate, Bonli, Sawai Madhopur refused to take cognizance of offences against the petitioner for want of prosecution sanction. It is contended that the said order was assailed by the complainant and the court of Additional Sessions Judge, Sawai Madhopur vide order dated 15.12.2015 had set aside the order dated 27.12.2012 by holding that the prosecution sanction is required. 5. It is contended that the said order was assailed by the complainant and the court of Additional Sessions Judge, Sawai Madhopur vide order dated 15.12.2015 had set aside the order dated 27.12.2012 by holding that the prosecution sanction is required. 5. Learned counsel for the petitioner has relied upon Section 195 Cr.P.C. to contend that qua offences falling under Chapter XI of Indian Penal Code, containing offences under Sections 193, 195 and 196 IPC, the court cannot proceed against the accused except upon complaint in writing by the court in relation to which abovesaid offences were committed. Learned counsel for the petitioner has contended that in the present case for prosecution of the petitioner for offences under Sections 193, 195 and 196 IPC, no complaint was filed in writing by the court who had acquitted the complainant/respondent No. 2. Learned counsel for the petitioner has contended that even the petitioner had not filed an application under Section 340 Cr.P.C. before the concerned court praying that an inquiry be held for prosecution of the petitioner for offences under Sections 193, 195 and 196 IPC. 6. Inter alia, learned counsel for the petitioner has further contended that no offence under Section 166 IPC is made out as there is no evidence that the petitioner had disobeyed any law with intend to cause injury to respondent. It is further contended that if witnesses have turned hostile or have rescaled from statement made by them under Sec. 161 Cr.P.C. by stating that no such statement of their was recorded by the investigating officer, still the petitioner being investigating officer cannot be prosecuted for offences under Secs. 166 and 167 IPC, as the said act of petitioner were purportedly in discharge of the official duty and sanction under Section 197 Cr.P.C. was necessary. 7. After hearing the learned counsel for the petitioner, I find merit in the arguments advanced by the learned counsel for the petitioner. 8. For prosecution of the petitioner for offences under Section 193, 195 and 196 IPC, compliant in writing could only be filed by the court in relation to which offences were committed. In the present case, only the court which had acquitted the complainant/respondent No. 2 could file the complaint for prosecution of the petitioner for offences under Sections 193, 195 and 196 IPC. 9. In the present case, only the court which had acquitted the complainant/respondent No. 2 could file the complaint for prosecution of the petitioner for offences under Sections 193, 195 and 196 IPC. 9. So far prosecution of the petitioner for offences under Sections 166 and 167 IPC is concerned, even if it is assumed that the petitioner wrongly recorded the statement of the witnesses under Section 161 Cr.P.C., still the prosecution sanction under Section 197 Cr.P.C. from the public servant who is competent to remove the petitioner is necessary as the act of the petitioner was purportedly in discharge of the official duty. 10. Consequently, the present petition is accepted and the impugned order passed by the court below is set aside alongwith all subsequent proceedings. 11. As prayed, liberty is granted to the respondent No. 2 to file an application under Section 340 Cr.P.C. before the court of competent jurisdiction in accordance with the provisions of law.