Allahabad High Court
Vijay Kumar Punj And Others vs State Of U.P. & Another on 24 July, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 23
Case :- CRIMINAL REVISION No. - 4363 of 2010
Revisionist :- Vijay Kumar Punj And Others
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Ajatshatru Pandey
Counsel for Opposite Party :- Govt.Advocate,Vipin Lal Srivastava
Hon'ble Pramod Kumar Srivastava,J.
Present revision has been preferred against the order dated 22.9.2010 passed by the Chief Judicial Magistrate, Azamgarh in criminal case no. 9254 of 2003, State Vs. Vijay Kumar Punj and others, under sections 364, 342 I.P.C., p.s. Jiyanpur Azamgarh, by which application of accused-revisionists for discharge under section 197 Cr.P.C. was rejected.
It is admitted case that police personnel of Madhya Pradesh had visited Azamgarh in connection with investigation of a case and in search of an accused, visited village Deua Pur, p.s. Jiyanpur, Azamgarh. There they had not found the accused, so they had taken Kamaluddin into their custody and went away. A case crime no. 300 of 1996 under sections 342, 364 I.P.C. was registered in police station Jiyan Pur against those police personnel of Madhya Pradesh (present revisionists) for unlawful detention of Kamaluddin and for abducting him. During investigation, police had also recovered a dead body, which was identified by witnesses as dead body of Kamaluddin. After investigation charge-sheet was filed against present revisionists.
During trial of said case accused-revisionists had moved application dated 7.2.1998 under section 197 Cr.P.C. for discharging them on the ground that at the time of incident in question they had come to Azamgarh in discharge of their official duty, in search of a wanted accused. Since that accused was not found and his brother Kamaluddin had asked them to give information about whereabouts of the said wanted accused therefore they had taken Kamaluddin with them, but during transit Kamaluddin had escaped from their custody and fled away. Since these acts had been performed by the accused-revisionists in discharge of official duty for apprehending a wanted accused of Jabalpur, Madhya Pradesh, therefore, their acts are protected under section 197 Cr.P.C. and they cannot be prosecuted unless formal prosecution sanction has been obtained under this provision.
The trial court had considered facts, circumstances and available material before it and after considering legal position, it had passed impugned order dated 22.9.2010, by which application under section 197 Cr.P.C. was rejected. Against this order, present revision has been preferred.
Sri Ajatshatru Pandey appeared for revisionist. Learned A.G.A. appeared for State.
Heard and perused the records.
Sri Pandey, learned counsel for the revisionist had cited 2012 LawSuit (SC) 626, Om Prakash & Ors. Vs. State of Jharkhand and Ors. in support of his contention. In this ruling, Hon'ble Apex Court had held that " The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it. The protection given under Section 197 of the Code 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".
In light of above legal position, present matter was considered. Admittedly, in present case revisionist had taken in their custody Kamaluddin, who was not a wanted accused. They had taken him in their custody without the direction of any Court and without informing the local police station. Kamaluddin was last seen with accused-revisionist and thereafter no one had seen him. The FIR was lodged against accused-revisionist for illegal detaining and abducting Kamaluddin, and during investigation of said case a dead body was found, which was identified as dead body of Kamaluddin. After investigation police had submitted charge-sheet against these revisionist.
In present circumstances, prima facie it appears that accused-revisionists, who are police personnel of Madhya Pradesh State had taken Kamaluddin in their custody though he is not a wanted accused, thereafter they had taken him out of his village and his dead body was found. No explanation of his death was given by revisionists. In such circumstances, prima facie it cannot be said that they had taken Kamaluddin in their custody during discharge of their official duty. Prima facie it appears that there is no direct connection between official duty of revisionist and their alleged act, which resulted in death of Kamaluddin. In absence of any reasonable connection between act of revisionists-public servant and detention and death of Kamaluddin, it cannot be said that they had acted in discharge of their duties.
Though it was contended by learned counsel for the revisionist that Kamaluddin is residing with his relative in Mumbai, Maharashtra. This explanation is not acceptable at this stage. This is a defence case, which the revisionist can prove at the time of trial. If they insist that Kamaluddin is free and living in Mumbai, then the burden of proving this fact is on them, which they have failed to prove so far. Therefore, they appears not entitled for any protection under section 197 Cr.P.C.
The trial court had considered facts, circumstances and available evidences before it and discussed it in detail, including the arguments of accused-revisionist side and thereafter passed impugned order discussing the provisions of section 197 Cr.P.C. The impugned order appears to have been passed after application of judicial mind. This order is a detailed and reasoned speaking order, which is apparently correct and acceptable. There appears no illegality, irregularity or impropriety in passing of the impugned order that may warrant exercise of revisional jurisdiction. Therefore, this revision is dismissed.
Let a copy of this order be sent immediately to trial court with direction to expedite the hearing of trial.
Order Date :- 24.7.2015
SR
