Bombay High Court
Manoj Prabhakar Lohar vs Rahemat Bee Mohd Hasan And Anr on 14 December, 2015
Bench: I.K. Jain
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APPLN.632.09.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPLICATION NO. 632 OF 2009
Manoj s/o Prabhakar Lohar,
Age 35 years, Occ: Addl. Dy. Commissioner,
State Intelligence Dept. Mumbai,
R/o 122-Shravan Tarangan Complex,
Thane (W). ... APPLICANT
(ORIG. ACCUSED)
V E R S U S
1) Rahemat Bee Mohd. Hasam,
Age 50 years, Occ. Business,
R/o Jam Mohalla,
Near Old Kondwad Bhusawal,
District Jalgaon. ORIG. COMPLT.
2) The State of Maharashtra. ... RESPONDENTS
...
Mr. Rajendra S. Deshmukh, Advocate for Applicant.
Mr. S. S. Patil, Advocate for Respondent No.1.
Mrs. M. A. Deshpande, APP for Respondent No.2 / State.
...
CORAM : INDIRA K. JAIN, J.
RESERVED ON : 03rd December, 2015.
PRONOUNCED ON : 14th December, 2015.
::: Uploaded on - 14/12/2015 ::: Downloaded on - 15/12/2015 23:58:02 :::
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APPLN.632.09.odt
JUDGMENT:
. Rule. Rule made returnable forthwith. Heard finally with
the consent of learned counsel for the parties.
2 Applicant is Accused No.1 in a private complaint filed by
Respondent No.1/Complainant before the learned Judicial Magistrate
First Class, (1st Court), Jalgaon on which learned Magistrate took
cognizance, registered the case as R.C.C. No.651 of 2005 and issued
summons to the Applicant / Accused. The case was registered under
Sections 326, 504, 506(II) and 34 of the Indian Penal Code.
3 Here is an application under Section 482 of the Code of
Criminal Procedure for quashing the proceedings in R.C.C. No.651 of
2005 pending before the learned Judicial Magistrate First Class, (1st
Court), Jalgaon.
4 For the sake of convenience Applicant shall be referred
as Accused No.1 and Respondent No.1 as Complainant as were
referred before the Trial Court.
APPLN.632.09.odt
5 The case of Complainant in brief is as under -
i. On 9th February, 2005 between 01:00 pm and
02:00 pm Complainant was in her brother's
house. Accused No.1 Police Officer came there
alongwith 15 to 20 policemen. It is alleged that
Accused No.1 started assaulting Complainant
with iron pipe. Complainant asked him and other
policemen reason for assault. On that
Complainant was unclothed and assaulted.
Neighbourers assembled. In their presence
Accused No.1 and other policemen again
assaulted Complainant. Ameenabee sister-in-
law of Complainant came to rescue her. Even
Ameenabee was brutally assaulted by Accused
No.1.
ii. It is further alleged that on the instructions of
Accused No.1 other police personnel caused
damage to the house. Complainant was picked
APPLN.632.09.odt
up and put in police vehicle. She was taken to
her house at Jam Mohalla. Then Firozabee
daughter of Complainant was assaulted by
Accused No.1 with an iron pipe. Roof of house of
Complainant was broken by policemen who
accompanied Accused No.1. Mattresses were
torn. Cupboard was broken and an amount of
Rs.14,000/- was taken away from said cupboard.
Gold weighing about 17 Tolas which Complainant
was wearing was also removed.
iii. Thereafter Complainant, her daughter and sister-
in-law were brought to Bazarpeth Police Station,
Jalgaon. Complainant was taken to Civil
Hospital, Jalgaon. Due to interference of
Accused No.1 doctors did not give any treatment
to Complainant, her daughter and sister-in-law.
iv. A grievance is made that Complainant was
confined in the custody. No information was
given for what she had been arrested. On the
APPLN.632.09.odt
next day Complainant, her daughter and sister-in-
law were produced before the Court. Before
producing them in the Court Accused No.1
threatened the Complainant that in case she
discloses about assault her entire family would
be brutally assaulted. Due to fear of Accused
No.1 and threats given by him, Complainant did
not complain about ill-treatment and assault to
learned Magistrate.
v. In the night when Complainant was in police
custody Accused No.1 assaulted on her legs by
iron pipe causing fracture to her right leg.
vi. On 13th February, 2005 when Complainant was
produced before the Court she disclosed about
brutal assault at the hands of Accused No.1. On
15th February, 2005 she was released on bail.
She was admitted to private hospital on 16th
February, 2005. Doctor opined that she
sustained fracture to her leg and she was
APPLN.632.09.odt
required to be operated.
vii. According to Complainant she was under
constant threats of Accused No.1. Accused No.1
threatened her to life and also to implicate her in
a false case.
viii. On 9th February, 2005 itself Complainant sent a
written complaint to Superintendent of Police
against the Accused and copies were transmitted
to various Authorities. No action was taken on
her complaint which constrained her to file writ
petition before this Court. The writ petition was
disposed of with observations that Complainant
had an efficacious alternate remedy for redressal
of her grievances. Thereafter she filed a private
complaint and the same is the subject matter of
application on hand.
6 After presentation of complaint learned Magistrate
examined the Complainant on oath under Section 200 of the Code of
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Criminal Procedure. The daughter, sister-in-law and doctor were also
examined. On considering the allegations in complaint and the
evidence of witnesses including Complainant learned Magistrate
came to the conclusion that there were prima-facie grounds to
proceed against Accused No.1 under Sections 326 and 506(II) of the
Indian Penal Code. In consequence thereof Accused No.1 was
summoned by the learned Magistrate.
7 The order of issuance of process was challenged by
Accused No.1 in Criminal Revision Application No.13 of 2008 before
the learned Sessions Judge, Jalgaon. The same was dismissed vide
order dated 14th October, 2008. Hence the instant application.
8 Heard at length Mr. Rajendra S. Deshmukh, learned
counsel for Applicant, Mr. S. S. Patil, learned counsel for Respondent
No.1 and Mrs. M. A. Deshpande, learned APP for Respondent No.2 /
State. Perused record.
9 The main contention of Applicant is that learned
Magistrate could not have taken cognizance of alleged offences and
APPLN.632.09.odt
issued process to Applicant without sanction from the State
Government under Section 197 of the Code of Criminal Procedure
and on the sole ground proceedings in private complaint R.C.C.
No.651 of 2005 need to be quashed and set aside. Learned counsel
for Applicant vehemently submitted that question whether sanction is
necessary or not may arise at any stage of the proceedings and in the
given case it would arise at the stage of inception itself. On merits it is
submitted that the Courts below did not consider medical certificate of
Respondent No.1 and other material in proper perspective and came
to the incorrect conclusion that alleged acts were committed by the
Accused not in the discharge of his official duty.
10 It is submitted that allegations made in complaint R.C.C.
No.651 of 2005 if taken into consideration in its entirety would show
that acts alleged against Applicant were during the discharge of his
official duty. In this background sanction under Section 197 of the
Code of Criminal Procedure is must. In the absence of sanction to
prosecute the Applicant learned Magistrate ought not to have taken
cognizance and should not have summoned the Applicant.
APPLN.632.09.odt
11 On the point of sanction under Section 197 of the Code of
Criminal Procedure learned counsel for Applicant placed vehement
reliance on -
a. Anil Kumar and others Vs. M. K. Aiyappa
and another1
b. D.T. Virupakshappa Vs. C. Subash2
12 On the basis of above said decisions of the Honourable
Apex Court learned counsel strenuously submits that facts in the
above authorities and the present case are identical and the
provisions under Section 197 of the Code of Criminal Procedure
would squarely apply in the case against Applicant.
13 Learned counsel for Applicant further submitted that on
2nd February, 2005, Crime No.23 of 2005 was registered at Zilla Peth
Police Station, Jalgaon for the offences punishable under Sections
457 and 380 of the Indian Penal Code and it was under investigation
and supervision of Applicant who was then Sub-Divisional Police
1 (2013) 10 Supreme Court Cases 705
2 2015(5) SCALE 573
APPLN.632.09.odt
Officer, Jalgaon. Respondent No.1 was arrested in this crime on 9 th
February, 2005 for receiving stolen properties or proceeds thereof.
According to Applicant, Respondent No.1 was also arrested in Crime
No.40 of 2005 for the similar offences registered at Zilla Peth Police
Station, Jalgaon. It is submitted that Respondent No.1 is a habitual
offender for receiving stolen properties or proceeds thereof. She was
taken in custody in Crime No.40 of 2005 and her formal arrest was
shown on 13th February, 2005 as she was already in custody in Crime
No.23 of 2005.
14 Another contention of Applicant is that Respondent No.1
runs a brothel house illegally. Several raids were conducted on her
brothel house. The Superintendent of Police, Jalgaon called report of
investigation from the Applicant. Accordingly on 28th March, 2005
Applicant submitted the report to Superintendent of Police and it was
revealed during enquiry that Respondent No.1 was illegally running
brothel house.
15 According to Applicant being aggrieved by the genuine
and legal actions taken by Applicant against the illegal activities of
APPLN.632.09.odt
Respondent No.1, he was falsely implicated just to thwart the actions
taken by Police against her. It is alleged that filing of R.C.C. No.651
of 2005 by Respondent No.1 is nothing but an abuse of process of
law and in the above background the entire proceedings before the
learned Magistrate be quashed and set aside.
16 In response to submissions advanced on behalf of
Applicant learned counsel for Respondent No.1 would submit that
private complaint was filed in view of the order passed by the Division
Bench of this Court in writ petition. Learned counsel submits that after
Respondent No.1 was released on bail she was admitted to private
hospital and the medical certificate shows that she sustained fracture
to third and fifth right vetatarsion. Learned counsel for Respondent
No.1 vehemently contended that Applicant had brutally assaulted
Respondent No.1 and the act of assault cannot be said to be in
discharge of his official duty and question of sanction under Section
197 of the Code of Criminal Procedure would not arise. Learned
counsel submitted that it is not a case of police excess or dereliction
in duty, but it is a case of brutal assault and therefore learned
Magistrate has rightly taken cognizance and summoned the Accused
APPLN.632.09.odt
and order was correctly upheld by the Revisional Court.
17 In view of the above a simple but crucial question before
this Court is whether in the given set of facts sanction under Section
197 of the Code of Criminal Procedure was necessary or not.
18 On cursory perusal of complaint R.C.C. No.651 of 2005
and the documents annexed thereto, it can be seen that Respondent
No.1 was arrested in Crime No.23 of 2005 by Applicant. It is the
grievance of Respondent No.1 that she was brutally assaulted by
Applicant and detained in police custody. The chronological events
would indicate that alleged conduct of Applicant had an essential
connection with discharge of official duty.
19 Under Section 197 of the Code of Criminal Procedure,
public servant is entitled to protection not only in regard to an offence
alleged to have been committed by him while acting as a public
servant but also in respect to the offences alleged to have been
committed by him while purporting to act in discharge of his official
duty. In the case of D.T. Virupakshappa Vs. C. Subash (supra) the
APPLN.632.09.odt
Honourable Apex Court referred the decision in State of Orissa
through Kumar Raghvendra Singh and others Vs. Ganesh
Chandra Jew1 and held that guidelines summed-up in para 32 of the
case in Om Prakash and others Vs. State of Jharkhand through
the Secretary, Department of Home, Ranchi 1 and another2 would
squarely apply in case of Appellant. Paras 8 and 9 of D.T.
Virupakshappa Vs. C. Subash (supra) read as under -
"8. The issue of 'police excess' during investigation
and requirement of sanction for prosecution in that
regard, was also the subject matter of State of Orissa
through Kumar Raghvendra Singh and Ors. v.
Ganesh Chandra Jew MANU/SC/0264/2004 : (2004)
8 SCC 40, wherein, at paragraph-7, it has been held
as follows:
"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
1 (2004) 8 SCC 40
2 (2012) 12 SCC 72
APPLN.632.09.odt
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. 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,
APPLN.632.09.odt
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....
(Emphasis supplied)
9. In Om Prakash (supra), this Court, after
referring to various decisions, particularly pertaining to
the police excess, summed-up the guidelines at
paragraph-32, which reads as follows:
"32. 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 (K. Satwant
Singh). 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
APPLN.632.09.odt
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 (Ganesh
Chandra Jew). If the above tests are applied
to the facts of the present case, the police
must get protection given under Section 197
of the Code because the acts complained of
are so integrally connected with or attached
to their office as to be inseparable from it. It
is not possible for us to come to a conclusion
that the protection granted under Section 197
of the Code is used by the police personnel in
this case as a cloak for killing the deceased in
cold blood."
20 In the case on hand it is evident from factual matrix that
the entire allegations made in private complaint are in respect of
police excess and ill-treatment on, before and after the arrest of
Respondent No.1 in connection with Crime No.23 of 2005. The
alleged offensive conduct is reasonably connected with the
performance of official duty of the Applicant. Therefore learned
Magistrate could not have taken cognizance of the case without
APPLN.632.09.odt
previous sanction of the State Government.
21 In the above premise this Court finds substance in the
contention of Applicant that prior sanction under Section 197 of the
Code of Criminal Procedure was sine-qua-non and in the absence of
sanction impugned orders would not sustain in the eye of law. On this
ground alone application deserves to be allowed. Hence the following
order -
O R D E R
I. Criminal Application No.632 of 2009 is allowed.
II. Proceedings in R.C.C. No.651 of 2005 pending
before the learned Judicial Magistrate First
Class, (1st Court), Jalgaon in respect to taking
cognizance and issuing process to Applicant
are set aside.
III. It is made clear that this Court has considered
only the issue of sanction and the matter is not
considered on merits. The judgment shall not
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stand in the way of Respondent No.1
approaching the State Government for
sanction under Section 197 of the Code of
Criminal Procedure. In case such sanction is
obtained and same is produced before the
learned Magistrate, the Magistrate may
proceed further in the case in accordance with
law.
IV. Rule is made absolute in the aforesaid terms.
[ INDIRA K. JAIN, J. ]
ndm
