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2022 DIGILAW 39 (JK)

Pardeep Kumar Sharma v. Dutt Kumar

2022-02-11

RAJNESH OSWAL

body2022
JUDGMENT : Rajnesh Oswal, J.-In the present petition, petitioner has prayed for the quashing of the order dated 12.05.2016 passed by the Court of District Judicial Mobile Magistrate (Traffic), Kathua (hereinafter referred to as the trial court) whereby the cognizance was taken by the learned Trial Court and also for quashing the order dated 20.04.2017 passed by the learned Trial Court, whereby the process has been issued against the petitioner and further for quashing of the proceedings in the criminal complaint, titled, ‘Dutt Kumar Vs. Pardeep Khajuria & Ors.’, on the following grounds: (a) That the learned Trial Court was pleased to pass order dated 12.05.2016, whereby cognizance was taken by the learned Magistrate and vide order dated 20.04.2017, the learned trial court came to the conclusion that the offence under section 323 IPC was made out against the petitioner. As per the provisions contained in section 538-B Cr.P.C, no court can take cognizance of an offence of the category specified in sub-section 2 after the expiry of the period of limitation and period of taking the cognizance is one year, if the offence is punishable with imprisonment for a term not exceeding one year, therefore, the learned Magistrate in the instant case was competent to take cognizance within a period of one year from the date of alleged occurrence i.e. 07.03.2015, but has taken the cognizance on 12.05.2016 i.e. after the expiry of one year from the date of occurrence, as such, the order impugned is per se illegal. (b) That as per the contents of the complainant, the offence is alleged to have been committed when the petitioner was discharging his official duties being a police officer at the time of commission of alleged offence, thus, the Magistrate was under a statutory duty to comply with the Rules 16 and 17 of chapter XIII of the Rules framed for the guidance of Criminal Courts subordinate to the Hon’ble High Court, read with Police Rule 349, but the trial court while passing the order impugned has not complied with the aforesaid Rules, thus, it is established that the orders impugned neither were passed with the application of mind nor the same were passed in consonance with the law. (c) That it is apparent from the order dated 20.04.2017 that the learned Chief Judicial Magistrate without taking cognizance of the offence was pleased to refer the complaint to Additional Superintendent of Police for enquiry at pre-cognizance stage and the Additional Superintendent of Police had submitted a report to the learned Chief Judicial Magistrate indicating therein that the allegations made in the complaint were false and not based on facts. The learned Magistrate has not considered the report of the Senior Police Officer and passed the order dated 12.05.2016 taking the cognizance of the offence contrary to the provisions of law. (d) That the bare perusal of the allegations made in the complaint even if they are taken at their face value and accepted in their entirety, do not even constitute an offence or make out a case against the petitioner. Further that the respondent has tried to implicate the petitioner in a false complaint so that he may succeed in pressurising the petitioner for getting the Police case registered against the respondent and his associate, compounded/compromised from the complainant of the said case, thus the impugned criminal proceedings have been instituted with an ulterior motive for wrecking vengeance upon the petitioner. 2. Mr. Rakesh Chargotra, learned counsel appearing for the petitioner submitted that the order of taking cognizance is hopelessly barred by limitation as provided by section 538-B Cr.P.C. and further that Police Rule 349 specifically provides for the procedure with regard to the commission of offences by the Police Officers while discharging their official duties and further that the complaint was filed by the respondent in order to wreck vengeance upon the petitioner. 3. Mr. Sachin Sharma, learned counsel appearing for the respondent vehemently argued that the respondent was assaulted by the petitioner while he was in the custody of the respondent and the injury suffered by the respondent is duly substantiated by the medical record. He further submitted that date material for the purposes of section 538 - B Cr.P.C. is the date of filing of complaint. 4. Heard and perused the record. 5. The respondent had filed a complaint against the petitioner and other persons, namely, Sushil Kumar and Mohinder Pal stating therein that on 07.03.2015 at about 1:00 p.m. on National Highway at the end point of old Ternah Bridge, accident took place and a youth was badly injured. Many people gathered there. 4. Heard and perused the record. 5. The respondent had filed a complaint against the petitioner and other persons, namely, Sushil Kumar and Mohinder Pal stating therein that on 07.03.2015 at about 1:00 p.m. on National Highway at the end point of old Ternah Bridge, accident took place and a youth was badly injured. Many people gathered there. The respondent along with one Congress activist and elected Panch, Shashipal Raina also went on the spot. The people gathered on the spot became furious to see the casual approach of the State as well as Central Government including NHAI, as the said accident took place due to the pits on the above-mentioned Bridge. The people started protesting against the State and Central Government. Within few minutes, the Deputy Chief Minister along with the Security staff and some local leaders of Hiranagar including accused No. 2 and 3 therein were also on the opposite side of the bridge, when he saw the people protesting on the other side of the bridge/road, he decided to stop there but moved away in a few minutes when he heard slogans. The respondent as well as his associate tried to pacify the crowd that they must submit a memorandum for early repair of road/bridge to Dy. Chief Minister, but people continued to raise slogans till Dy. Chief Minister moved away from there. Thereafter, the petitioner, who was the SHO, at once ordered his subordinate Police Officers to arrest the complainant and his associate. Both were taken in the Police vehicle to a Police Station, Hiranagar at about 1:30 p.m. At the Police Station, the petitioner gave merciless beatings to the respondent and abused the respondent in the filthy language. The respondent was not allowed to talk to his lawyer and the relatives and at around 5 PM, the petitioner again started beating the respondent No.1 and his associate and asked them to confess their guilt that they had blocked the way of the accused No. 2 therein and as the respondent did not confess, the petitioner ordered his subordinate to open the pant of the respondent and paraded him semi nude and beat him again with his leather belt and slapped on his face. At around 8 PM, the respondent and his associate were released from the Police custody after obtaining signatures on the papers including their fingerprints and that too without assigning any reason for keeping them in custody for more than 6 hours. The respondent and his associate reached District Hospital Kathua for their respective treatment on 08.03.2015 and a case as MLC bearing No. 28872 was registered on account of problem in smooth hearing due to injury of ears. Due to non-availability of specialist Doctor of ENT, he was referred to SMGS Hospital, Jammu. On 11.03.2015 the petitioner was surprised to know that the Police had filed a charge sheet under section 341 RPC against the respondent and his associate. The respondent was bailed out by the court of JMIC, Hiranagar. Upon filing of the said complaint, the learned Chief Judicial Magistrate, Kathua directed Additional Superintendent of Police for investigation and report within a period of 10 days vide order dated 24.03.2015. The Additional Superintendent of Police submitted the report and stated therein that allegations made by the respondent against the petitioner and other persons were not found to be based on facts. The respondent filed objections to the said report and the learned Chief Judicial Magistrate Kathua transferred the said complaint to the District Judicial Magistrate, Kathua. The learned District Judicial Mobile Magistrate (T) Kathua while recording the submissions of the respondent that enquiry officer had not conducted the enquiry in an impartial manner and further that the evidence and witnesses produced by him were not brought on record, directed the respondent to produce the witnesses on the next date of hearing. The respondent examined himself as well as Shashi Pal Raina and Sham Lal in support of his complaint. The learned trial court after considering the statements came to the conclusion that there are sufficient grounds on record for proceeding against the petitioner for commission of offence under section 323 RPC and vide order dated 20.04.2017, the learned trial Court issued the process against the petitioner and the proceedings against the other two accused were dropped. 6. The first ground urged by the petitioner is that the learned trial Court could not have taken the cognizance of offence after one year of the alleged occurrence. 6. The first ground urged by the petitioner is that the learned trial Court could not have taken the cognizance of offence after one year of the alleged occurrence. Needless to say, section 323 RPC is punishable with imprisonment of either description for a period up to one year or fine of rupees one thousand or both. As per the mandate of sub section 2 of section 538-B Cr.P.C., the period of limitation for taking the cognizance for an offence punishable with imprisonment for a term not exceeding one year, is one year. It requires to be noted that the complaint was filed by the respondent before Chief Judicial Magistrate, Kathua on 24.03.2015, but the learned Chief Judicial Magistrate, Kathua directed for investigation and for report vide order dated 24.03.2015 and it was only after the report was filed by the Additional Superintendent of Police and taking into consideration the objections filed by the respondent that the learned trial court directed the complainant/respondent to produce the witnesses in support of the complainant. The contention of the petitioner that the cognizance has been taken by the learned Magistrate after the expiry of a period of limitation of one year, is misconceived as Hon’ble Apex Court in Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 has held as under: “51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law, if that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalised because of the omission, default or inaction on the part of the court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. Now, if he is sought to be penalised because of the omission, default or inaction on the part of the court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a court of law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the court may make it unsustainable and ultra vires Article 14 of the Constitution. 52. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/court and not of filing of complaint or initiation of criminal proceedings.” 7. The instant complaint was filed by the respondent within the period of limitation, as such, this contention of the petitioner is rejected. 8. The second ground raised by the petitioner is with regard to the non-compliance of the Rule 349 of Police Rules and Rules 16 and 17 of Chapter XIII of the rules framed for the guidance of criminal courts subordinate to this Court by the learned Magistrate. The perusal of the Rule 349 reveals that the same is applicable when a Superintendent of Police receives a complaint against the Police Officer that under colour of his duties, he has committed an offence as defined in the Ranbir Penal Code. The obligation under the rules is cast upon the Police Officers and not upon the Magistrates. Even no such rider has been imposed upon the Magistrates by the Police Rules. The obligation under the rules is cast upon the Police Officers and not upon the Magistrates. Even no such rider has been imposed upon the Magistrates by the Police Rules. Rule 16 of the Rules framed for guidance of the Criminal Courts subordinate to this Court, provides that when there is allegation against the servant of the State then the Magistrate should cause preliminary enquiry either by or in consultation with officer superior of the accused person. At the same time, this rule provides that Magistrate shall not be bound by the findings of the enquiry and if he is not satisfied, he shall proceed in accordance with law. In the instant case, enquiry was got conducted by the learned Magistrate through the Additional Superintendent of Police and there after recording the statement of the complainant and witnesses came to the conclusion that there is sufficient ground for proceeding against the petitioner. Rule 17 of Rules (supra) read as under: “Whenever a complaint is filed against a police officer that under the colour of his duties, he has committed an offence a defined in the Ranbir Penal Code, the Magistrate, unless he is himself as First Class Magistrate, shall record the statement of the complainant and report the case at once to the District Magistrate to whom he may be subordinate. He will direct the complainant to appear before him on a date to be fixed with due regard to the time by which he may hear from the District Magistrate on the appearance of the complainant the Magistrate shall inform the complaint of the order passed by the District Magistrate. The District Magistrate on the receipt of such a report as to a complaint will either hear the case himself or transfer it to a Magistrate with first class powers who will proceed according to law. If the Magistrate be himself a Magistrate of the first Class, he will report the substance of the complaint against the Police Officer to the District Magistrate and will proceed with the case in accordance with law. The Magistrate hearing the complaint shall send a copy of it to the Senior Superintendent of Police for his information. No case against a Police Officer shall be tried summarily.” 9. In the instant case, the learned Magistrate is First Class Judicial Magistrate, as such, the Rule 17 was not applicable in the instant case. 10. The Magistrate hearing the complaint shall send a copy of it to the Senior Superintendent of Police for his information. No case against a Police Officer shall be tried summarily.” 9. In the instant case, the learned Magistrate is First Class Judicial Magistrate, as such, the Rule 17 was not applicable in the instant case. 10. The third and fourth contentions raised by the petitioner are interrelated and, as such, they are taken up together for consideration. It is contended that the learned Magistrate has not considered the report of Additional Superintendent of Police Kathua. A perusal of the order dated 20.04.2017 reveals that the learned Magistrate has passed the detailed order and has even taken note of the report of the Additional Superintendent of Police. It requires to be noted that the Magistrate is not bound by the report submitted by the Police and once from the statement of the complainant as well as his witnesses and documentary evidence produced in support of the complaint, the Magistrate was of the opinion that there were sufficient grounds to proceed against the petitioner, then the learned trial court was well within its jurisdiction to proceed further and issue process against the petitioner. 11. It was also contended that the complaint was filed in order to pressurise the petitioner to force the complainant in the challan filed against the respondent for compromise and further that the complaint has been filed in order to wreck vengeance upon the petitioner. This is admitted fact that the respondent and his associate were arrested by the Police and further that the charge sheet against them was also filed. There is medical record demonstrating the injury suffered by the respondent and at this stage, this Court cannot express any opinion upon the merits of the case. The petitioner is well within his right to plead and prove his defence during the course of the trial. The fact remains that at this stage, it cannot be said that the allegations levelled by the respondent are baseless and have been actuated with malice. 12. Viewed thus, there is no merit in the present petition and as such, the same is dismissed. 13. Record summoned in original be sent back forthwith.