S.H.O.Anil Pratap Singh vs State Of U.P. And Another
2013 Latest Caselaw 297 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No.44.
 
Judgment Reserved on 27.02.2013
 
Judgment Delivered on 04.04.2013
 

 
Crl. Misc. 482 Cr.P.C. Application No. 10006 of 2012.
 
S.H.O. Anil Pratap Singh                             .... Applicant.
 
Versus
 
State of U.P. & another                                 .... Opposite Parties.
 
Hon'ble Ramesh Sinha, J.

1. Heard Sri J.S. Pandey, learned counsel for the applicant, Sri Ajay Vikram Yadav, learned counsel for the opposite party no.2 and learned A.G.A. for the State.

2. By means of this 482 Cr.P.C. application, the applicant has prayed for quashing the entire proceedings of Complaint Case No. 1298 of 2011 under Sections 452, 323, 504, 506 I.P.C., police station Malpura, District Agra pending in the Court of Additional Chief Judicial Magistrate, Court No.13, Agra.

3. The prosecution story as stated in the complaint is that on 9.10.2010 at about 10:30 a.m. Constable Dilip Puniya and Constable Sanjeev Kumar had gone to arrest a wanted accused, namely, Raghuveer S/o-Atar Singh R/o-Sagunapur, police station Malpura, District Agra, at village Sagunapur, who is wanted in Case Crime No. 62 of 2009 under Sections 307, 504, 506 I.P.C. in civil dress and when they arrested him and bringing him to the police station, the villagers thought they are miscreants, hence they caught hold of them and brought them at the house of the complainant. The complainant after enquiring about them came to know that they are the police personnels, hence he offered them some refreshments at his house. Meanwhile, two other constables, namely, Ajay Pal and Umesh Kumar also came there in police uniform and upon knowing the said incident, they informed the then Station Officer of police station Malpura, namely, Anil Pratap Singh (hereinafter referred to as 'the applicant') upon which the applicant went there along with the force on vehicles and entered into the house of the complainant and started abusing him and when the complainant asked them not to abuse, the applicant exhorted to kill him and stated that how the complainant dared to make the police personnels hostage and started assaulting him with butts of gun. When his mother, namely, Janakshri along with other villagers came there in order to save the complainant, they too were assaulted by the police. Thereafter the applicant arrested the complainant along with several other villagers, who came to save him, namely, Devendra Singh, Jaipal Singh, Harendra Pal Singh, Mahendra Singh, Balveer Singh, Jaiveer Singh, Kishor, Banwari, Mulayam and Pratap Singh and falsely implicated them in a false case. The complainant and his companions were medically examined at District Hospital Agra in police custody. The police personnels also threatened them that if any action was taken against them then no one would be saved and they would be falsely implicated in other cases due to which the complainant as well as other villagers were frightened. When, the report of the complainant was also not lodged by the police, the brother-in-law of the complainant, namely, Ajay Kumar Singh had informed about the incident to the higher authorities and Chairman of the U.P. Human Rights Commission, Lucknow that the complainant had gone to the police station on 11.10.2011 for lodging an F.I.R. but his report was not lodged. Thereafter on 12.10.2011, he sent an application to the S.S.P. and D.I.G., Agra but then too the F.I.R. was not lodged, hence the present complaint was filed by opposite party no.2 in the Court of Magistrate.

4. On the complaint filed under Section 200 Cr.P.C. before the Court of Additional Chief Judicial Magistrate, Agra, the case was registered as Complaint Case No. 681 of 2011 against the applicant and 7 other police personnels. The statement of the complainant/opposite party no.2 Sujan (hereinafter referred to as the complainant) was recorded by the Magistrate under Section 200 Cr.P.C. and the statements of his witnesses and injured persons recorded under Section 202 Cr.P.C., namely, Devendra Singh, Kishor Singh, Banwari, Jaipal, Harendra Pal, Mulayam Singh, Balveer Singh, Pratap Singh and Satyaveer Singh. The learned Magistrate on the statement of the complainant and its witnesses recorded under Sections 200 and 202 Cr.P.C. respectively, summoned the applicant along with co-accused persons vide order dated 16.2.2012, hence the present 482 Cr.P.C. application challenging the summoning order as well as the proceedings of the complaint praying for quashing of the same.

5. Learned counsel for the applicant submits that the applicant being the then Station Officer of police station Malpura, District Agra on receiving the information that one Raghuveer, who is wanted in Case Crime No. 62 of 2009 under Sections 307, 504, 506 I.P.C. is present in the village, had directed Constables Ajay Pal Singh, Umesh Kumar, Dileep Puniya and Sanjeev Kumar to arrest the said accused. Two constables were send in civil dress and two were send in uniform. The police personnels, who were in civil dress, had arrested accused Raghuveer at about 10:30 a.m. While they were bringing accused Raghuveer after arresting him to the police station, they were intercepted by the complainant Sujan Singh, who was the proposed candidate of Gram Pradhan of the village, who came there on his Scorpio Car along with 20 other person, who came in other jeeps. The complainant with his associates fired with their country made pistols on the said police personnels and forcibly got the said accused released from the clutches of said police personnels. Thereafter the two constables, who were in civil dress were taken by them at the house of the complainant and they were illegally confined. When the applicant came to know about the wrongful confinement of the two constables by the complainant through the other two constables, who gone to arrest the said accused in uniform then the applicant went there along with police force to get the two wrongfully confined constables released. On seeing the applicant coming along with force, the complainant and other accused persons started pelting stones and brick upon them. Hence, the applicant in order to get the two constables released had to use some force against the complainant and arrested ten persons along with the complainant and other persons, who were involved in the said incident, managed to escape away from the place of occurrence. The applicant thereafter lodged an F.I.R. against the aforesaid ten persons which was registered as Case Crime No. 384 of 2010 under Sections 147, 148, 149, 307, 332, 353, 353, 323, 224, 342, 336, 504, 506 I.P.C. and 7 Criminal Law Amendment Act on 9.10.2010.

6. After the investigation of the said case by the Circle Officer, Achera, a charge-sheet was submitted on 28.12.2010 against the aforesaid ten persons, namely, Sujan Singh, Devendra Singh, Kishor, Banwari, Jaipal, Harendra Pal, Mulayam Singh, Balveer, Pratap Singh, Jaiveer for the offence under Sections 147, 148, 149, 307, 332, 353, 353, 323, 224, 342, 336, 504, 506 I.P.C. and 7 Criminal Law Amendment Act and the suspected accused Raghuveer is absconding. A supplementary charge-sheet was also submitted on 21.3.2011 against Raghuveer Singh also in the present case, who was released by the complainant and other accused persons from the clutches of constables, who was got arrested by them.

7. It was further submitted that the applicant in discharging his official duties had lodged an F.I.R. against the complainant and other persons, who had illegally got released Raghuveer, who was wanted in a criminal case and was arrested by two constables, who were sent by the applicant for arresting him in which the complainant and other accused persons are facing criminal prosecution. Hence, after a lapse of one year lodged the present complaint on 21.10.2011 against the applicant for his malicious prosecution with a malafide intention. He submits that as the applicant had taken action against the complainant and other accused persons in discharging his official duties, the complainant has lodged the present complaint. He further submits that no previous sanction was taken from the competent authority before taking cognizance of the offence by the learned Magistrate, who has passed the summoning order against the applicant, hence the same is liable to be set aside on this ground along. He further submits that the injured persons, who have received injuries in the present incident from the side of the complainant are also named in the criminal case which was lodged by the applicant and charge-sheet has been submitted against them

8 Learned counsel for the applicant in support of his submission has placed reliance on the judgments of the Apex Court in the case of Rakesh Kumar Mishra vs. State of Bihar reported in LAWS (SC)-2006-1-15, Goondla Venkateswarlu vs. State of Andhara Pradesh reported in LAWS (SC)-2008-8-120 and Om Prakash vs. State of Jharkhad reported in LAWS (SC)-2012-9-55.

9. Learned counsel for the applicant further submits that in view of the said judgments of the Apex Court, the proceedings against the applicant is liable to be quashed as no prior sanction has been obtained by the competent authority under Section 197 Cr.P.C. for prosecution of the applicant.

10. On the other hand, Sri Ajay Vikram Yadav, learned counsel for the opposite party no.2 has vehemently opposed the said prayed and has submitted that opposite party no.2 was assaulted by the applicant and other police personnels though he had tried to help them from the villagers, who had arrested the two constables, who thought them to be miscreants, hence the applicant and other police personnels have committed an offence for which they are liable for criminal prosecution, hence no interference should be called for in the present application.

11. Considering the submissions advanced by learned counsel for the parties and from a perusal of the record, it is apparent that the accused Raghuveer was wanted in a criminal case and the applicant in order to arrest him had sent aforesaid constables and when they arrested him, the complainant, who was a candidate of Pradhan of the village, along with other villagers had intercepted the said police constables and got the accused Raghuveer released from their custody forcibly and wrongfully confined two constables, who were in civil dress and when the applicant came to know about the fact that the two constables had been made hostage by the complainant and other villagers, he went there along with the police force. The applicant had to use some force upon the villagers in order to get the hostages released from the custody of complainant and other villagers. The applicant has lodged an F.I.R. against the complainant and other villagers, who were arrested by him in discharge of his official duty. The investigation of the case lodged by the applicant was conducted by the senior officer, who was at the rank of Circle Officer and charge-sheet was submitted against the complainant and 11 other accused persons. The learned Magistrate on the basis of the said charge-sheet had taken cognizance of the offence against the complainant and other accused persons and they are facing criminal prosecution.

12. It appears that the complainant as a pressure tactics lodged the present complaint after one year of the incident, i.e., 21.10.2011 against the applicant in order to drag him to the court of law. Some of the injured persons on the side of the complainant are accused in the case which was lodged by the applicant and charge-sheet has been submitted against them. So far as injuries of the inmates of the house of the complainant are concerned, the same are superficial and simple in nature. The contention of learned counsel for the applicant that the applicant is a government employee, hence under Section 197 Cr.P.C. prior sanction from the competent authority is required before taking cognizance of the offence against him as he had discharged his official duties to get the police personnels released, who were wrongfully confined by the complainant and other persons of the village. It is apparent from the record that the learned Magistrate, who has taken cognizance of the offence no prior sanction under Section 197 Cr.P.C. has been taken from the competent authority to prosecute the applicant. Hence the order of the learned Magistrate is not sustainable in the eyes of law. In this regard, paras-22, 24, 25 and 26 of the judgment of the Apex Court in the case of Om Prakash (Supra) are relevant to be taken into consideration. The same are quoted hereinbelow:-

"22. In Raj Kishor Roy, the appellant had filed a complaint against respondent 1 therein, who was a police officer that he had assaulted him and leveled false charges against him. The Judicial Magistrate, Bhagalpur, issued summons. Respondent 1 filed a petition for quashing the order issuing summons on the ground that sanction under Section 197 of the Code has not been obtained. The High Court quashed the said order on the ground that there was no sanction to prosecute respondent 1. In the facts before it, this court observed that the question whether respondent 1 acted in discharge of his duty, could not have been decided in a summary fashion. This court observed that it was the appellant 's case that respondent 1 had brought an illegal weapon and cartridges and falsely shown them to have been recovered from the appellant. This court observed that this is the type of case where the prosecution must be given an opportunity to establish its case by evidence and an opportunity be given to the defence to establish that he had been acting in the official course of his duty. There is thus a clear indication that this court had restricted its observations to the facts before it. It is pertinent to note that this court referred to the Constitution Bench Judgment in Matajog Dobey and observed that in that case, the Constitution Bench has held that need for 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 and the question may arise at any stage of the proceedings.

In Pukhraj, the appellant, who was a clerk in the Head Post Office, Jodhpur had filed a complaint against respondent 2, who was the Post Master General, Rajasthan, alleging offences under Sections 323 and 502 of the IPC. Respondent 2 filed an application praying that the court should not take cognizance of the offence without the sanction of the Government as the acts alleged, if at all done by him, were done while discharging his duties as a public servant. The Rajasthan High Court held that respondent 2 could not be prosecuted unless prior sanction of the Central Government has been obtained. The order taking cognizance was quashed. This court referred to Hori Ram Singh as well as Matajog Dobey. This court reiterated that whether sanction is necessary or not may have to be decided from stage to stage but in the facts of the case before it, this court set aside the High Court 's order.

24. In Abdul Wanab Ansari v. State of Bihar and Anr.[10], this court was again considering the question as to when the plea that sanction was required to be obtained under Section 197 (1) of the Code can be raised. This Court reiterated that previous sanction of the competent authority being a precondition for the court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed.

In our opinion Sankaran Moitra puts doubts, if any, to rest. In that case the complainant had filed a complaint before the Deputy Commissioner of Police that she had come to know from the members of the public that her husband was beaten to death by the police. She arrayed Assistant Commissioner of Police and other police personnel as accused and prayed for stern action against them. Accused 1 filed a petition under Section 482 of the Code before the High Court for quashing of the complaint on the ground that the complaint could not have been entertained for want of sanction under Section 197(1) of the Code. The High Court dismissed the petition. Before this Court it was argued that want of sanction under Section 197 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 stage. This Court considered Hori Ram Singh, Constitution Bench judgment in Matajog Dobey and several other judgments on the point and rejected the said submission. We must reproduce the relevant paragraph.

"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 defence 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. " This Court also observed that postponing a decision on the applicability or otherwise of Section 197(1) of the Code can only lead to the proceedings being dragged on in the trial court and a decision by this Court here and now would be more appropriate in the circumstances of the case especially when the accused involved are police personnel and the nature of the complaint made is kept in mind.

25. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the concerned public servant at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. At this point, in order to exclude the possibility of any misunderstanding, we make it clear that the legal discussion on the requirement of sanction at the very threshold is based on the finding in the earlier part of the judgment that the present is not a case where the police may be held guilty of killing Munna Singh in cold blood in a fake encounter. In a case where on facts it may appear to the court that a person was kilted by the police in a stage managed encounter, the position may be completely different.

26. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. Requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. Plea regarding sanction can be raised at the inception.

In our considered opinion, in view of the facts which we have discussed hereinabove, no inference can be drawn in this case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. In Zandu Pharmaceutical Works Limited, this Court has held that the power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process or court but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court the power under Section 482 of the Code must be exercised and proceedings must be quashed. Indeed, the instant case is one of such cases where the proceedings initiated against the police personnel need to be quashed. In the circumstances, we dismiss the appeal filed by the complainant Kailashpati Singh. We allow the appeal filed by Om Prakash, Pradeep Kumar, Shyam Bihari Singh and Bharat Shukla and set aside the impugned order to the extent it dismisses Cr.M.P.No. 822 of 2005 filed by them for quashing order dated 14/06/2.005 passed by Judicial Magistrate, 1st Class, Jamshedpur, in Complaint Case. No.731 of 2004 issuing process against them. We quash Complaint Case No. 731 of 2004 pending on the file of Judicial Magistrate, 1st Class, Jamshedpur."

13. Learned counsel for the complainant Sri Ajay Vikram Yadav could not dispute the aforesaid fact that no prior sanction has been taken under Section 197 Cr.P.C. by the competent authority for prosecution of the applicant.

14. In the absence of the sanction under Section 197 Cr.P.C., the summoning order against the applicant and the proceedings of the present case are hereby quashed.

15. The present application stands allowed.

Dated 04.04.2013

Shiraz.