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Madhya Pradesh High Court · body

2020 DIGILAW 50 (MP)

Jagdish Singh Meena v. Sagar Mogia

2020-01-09

RAJENDRA KUMAR SRIVASTAVA

body2020
ORDER 1. Petitioner-accused has filed this miscellaneous criminal case under section 482 of CrPC to set aside the impugned order dated 9.3.2018 passed by learned JMFC, Satna in Complaint Case No. RCT/166/2018, whereby the learned Judicial Magistrate took the cognizable against the petitioners/accused under sections 323, 324, 325, 294 and 506/34 of IPC. 2. Complainant/respondent No. 1 filed a complaint before Judicial Magistrate First Class, it is alleged in the complaint that on 14.4.2015 at about 1:45 pm, complainant was walking near his house at that time police officials and present petitioners reached there and stopped him and without any interrogate they abused filthy language to him, he opposed them then they inflicted injuries with stick and took him by motor cycle to police station, Kotwali, Satna. Complainant/respondent No. 1 admitted at hospital. 3. Learned Judicial Magistrate inquired the matter and took cognizance against the petitioners/accused as aforesaid. 4. Learned counsel for the petitioners/accused submits that petitioners/accused are police officials at the time of incident, they were on official duty, fixed by the Higher Authorities and Ravangi was mentioned in the Ravangi-Sanha. During their duties, respondent No. 1 met on the way they inquired from the respondent No. 1 but he did not properly answer about moving on the road at mid night on account of which, some dispute was taken place between them and he has obstructed to them for performing their official duties, due to which they have immediately made a written report at City Kotwali, Satna. Thereafter, a Criminal case under sections 355, 332, 186, 506/34 of the IPC has been registered against the respondent No. 1 along with watchman. Therefore, it is clear that at the time of incident, petitioners/accused were on duty and they were performing their official duties and acted in duty fixed to them, therefore, for their prosecution, it is mandatory to obtain previous permission as section 197 of the CrPC. Respondent No. 1/complainant did not obtain any previous permission for their prosecution, therefore, order passed by the learned trial Court on 9.3.2018 deserves to be set aside. Previously, learned Judicial Magistrate held that section 197 of CrPC is necessary for prosecution against the petitioners/accused, therefore, criminal complaint case was dismissed on 19.7.2016. Thereafter, respondent No. 1/complainant filed a revision No. 3400127/2016 against that order. Previously, learned Judicial Magistrate held that section 197 of CrPC is necessary for prosecution against the petitioners/accused, therefore, criminal complaint case was dismissed on 19.7.2016. Thereafter, respondent No. 1/complainant filed a revision No. 3400127/2016 against that order. Revision was allowed by the learned Additional Sessions Judge and case was remanded back for reconsideration, then learned Judicial Magistrate found prima facie that this case was against the petitioners/accused and he took the cognizance against the petitioners. Therefore, order of Judicial Magistrate against established principle of law. Therefore, he prays for quashing the charges as well as its consequential proceeding. 5. Learned counsel for the respondent/complainant submits that petitioners/accused are police officials, they are not gazetted officers, Therefore, they are not entitled to get the benefit under section 197 of CrPC. Prima facie case is made out against the petitioners. Therefore, no interference is warranted in the impugned order. Therefore, he prays for dismissal of this petition. 6. Heard both the parties and perused the record. 7. It is admitted fact that petitioners/accused No. 1 is Constable and petitioner/accused No. 2 is Head Constable, at the time of incident they were posted at Police Station, Kotwali, Satna, it is evident from the record that petitioners/accused were on official duty at the time of incident. It is admitted fact that on 13.4.2015 at about 2:00 pm, respondent was walking in the street, petitioners/accused have stopped and interrogated him then some dispute was occurred. Respondent No.1 was caught by the petitioners/accused, they took him along with watchman to the police station Kotwali, Satna. Petitioner No. 2 lodged a report against the respondent No. 1 and a criminal case under sections 355, 332, 186 and 506/34 of IPC was registered against the respondent No. 1/complainant. Respondent No. 1 and petitioners/accused were examined by the doctor by which some injuries was found on their bodies. 8. Before further proceeding, it is necessary to read first the provision of section 197 of the CrPC which is mentioned as under: "197. Prosecution of Judges and public servants. Respondent No. 1 and petitioners/accused were examined by the doctor by which some injuries was found on their bodies. 8. Before further proceeding, it is necessary to read first the provision of section 197 of the CrPC which is mentioned as under: "197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted. (3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 9. By the Notification No. 166 Notification No. 1799-II-B (III) dated the 14th May 1981 the State Governmet has stated that the provision of sub-section (2) of section 197 of CrPC shall apply to the members of class III and class IV of M.P. Police Force. The notifications reproduced herein under: "Notification No. 1799-II-B (III) dated the 14th May 1981 :- In exercise of the powers conferred by sub-section (3) of section 197 of the Code of Criminal Procedure, 1973 (No. 2 of 1974), the State Government hereby directs that the provisions of sub-section (2) of the said section shall apply to the members of class III and class IV of the Madhya Pradesh Police Force and the Madhya Pradesh Special Armed Force." 10. In view of the above said notification, it is clear that petitioners/accused are police officials so they are entitled to be protected under section 197 of CrPC 11. It is clear from the principle laid down by the apex Court that act of public servant is inter related of his official duty then section 197 of CrPC will be applicable. In this case, respondent No. 1 was walking at about 2:00 p.m. Petitioners/accused are police officials they are performing their official duties at the time of incident. Therefore, it is natural for the petitioners/accused to interrogate the respondent No. 1 because respondent was walking at mid night. Respondent No. 1 was examined by doctor and he found that he was intoxicated condition. Therefore, it is natural conduct of the petitioners/accused to stop him and interrogated him but respondent No. 1 assaulted the police officials then police officials have power to use reasonable force so the act of petitioners/accused comes under section 197 of CrPC. The Hon'ble apex Court in the case of Amal Kumar Jha v. State of Chhattisgarh and another reported in AIR 2016 SC 2082 "-7. 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 of 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 of 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. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of section 197 does not get immediately attracted on institution of the complaint case." 9. This aspect makes it clear that the concept of section 197 does not get immediately attracted on institution of the complaint case." 9. In K. Kalimuthu v. State by DSP (2005) 4 SCC 512 this Court has observed that official duty implies that an act or omission must have been done by the public servant within the scope and range of his official duty for protection. This Court has laid down thus : "12. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of section 197 of the Code cannot be disputed. x x x x x 15. The question relating to the need of sanction under section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of section 197, dealing with the question of prejudice has also to be noted." In Manorama Tiwari and ors. v. Surendra Nath Rai (2016) 1 SCC 594 , it was held that the appellants were discharging public duties while performing surgery in a Government hospital, hence prosecution was not maintainable without sanction from the State Government. 10. In State of Madhya Pradesh v. Sheetla Sahai and ors. (2009) 8 SCC 617 , this Court has laid down thus : "59. For the purpose of attracting the provisions of section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where public servants purport to act in their official capacity, the same would attract the provisions of section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das (2006) 4 SCC 584 . The question came up for consideration before this Court in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 wherein it was held: (AIR pp. 48-49, para 17) "17. It was so held by this Court in Sankaran Moitra v. Sadhna Das (2006) 4 SCC 584 . The question came up for consideration before this Court in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 wherein it was held: (AIR pp. 48-49, para 17) "17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code; 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Ram Singh v. Crown 1939 FCR 159 Sulaiman, J. observes: 'The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction." 12. Therefore, it is evident the act of petitioners/accused are protected under section 197 of CrPC Learned Courts below ignored the provision of section 197 of CrPC Therefore, this is an appropriate case in which the inherent jurisdiction can be invoked to set aside the impugned order. 13. Therefore, it is evident the act of petitioners/accused are protected under section 197 of CrPC Learned Courts below ignored the provision of section 197 of CrPC Therefore, this is an appropriate case in which the inherent jurisdiction can be invoked to set aside the impugned order. 13. Accordingly this petition is hereby allowed and order dated 9.3.2018 is set aside passed by the learned JMFC, Satna. Although, respondent No.1 is free to take permission from the competent authority to file a complaint against the petitioners. .....................