Arunsingh Dlipsingh Parihar And ... vs The State Of Maharashtra
2016 Latest Caselaw 7419 Bom

                                        1       CRI APPLN NO.106.2007.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                           
                  CRIMINAL APPLICATION NO. 106 OF 2007




                                                   
         1.      Arunsingh s/o Dilipsingh Parihar
                 age 52 yrs, Occ. Service,
                 R/o at present P.I. At Bhadgaon Police Station,




                                                  
                 Tq. Bhadgaon, Dist. Jalgaon.

         2.      Shaikh Hyder S/o Shaikh Habib,
                 age 56 yrs, Occ. Service (P.S.I.),
                 Police Station, Naigaon, Tq. Naigaon,




                                       
                 District Nanded.                        ..Applicants..

                 VERSUS
                             
         1.      The State of Maharashtra.
                            
         2.      Dadarao s/o Gangaram Suryawanshi,
                 age 35 yrs, Occ. Labour,
                 R/o At Post Narsi, Tq. Biloli,
      


                 Dist. Nanded.                  ....Respondents..
   



                                   ...
               Advocate for Applicant : Mr V D Salunke  
                 APP for Respondents: Mr S W Munde 
            Advocate for Respondent 2 : Mr S V Kurundkar  





                                   ...
                      CORAM : V.K. JADHAV, J.

Dated: December 19, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the order dated 26.10.2005

passed below Exh.224 in Special Case No.27/2000

passed by the Adhoc Additional Sessions Judge, Biloli,

the original accused no.22 and 23 approached this

2 CRI APPLN NO.106.2007.odt

Court by filing present criminal application.

2. Brief facts, giving rise to the present criminal

application are as follows :-

Both the applicants are public servants serving in

police department. The applicant no.1 was posted at

Bhadgaon Police Station from 4.1.1993 to 23.4.1993.

Both the applicants were posted at Naigaon Bazar Police

Station, Tq. Biloli District Nanded.

On 19.4.1993 respondent No.2 Dadarao had filed a

complaint in the Court of Sessions at Nanded against

the present applicants and several others for having

committed an offence punishable under the provisions

of Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as

"Atrocities Act"). Initially, 3rd Additional Sessions

Judge/Special Judge-Nanded was pleased to issue

process against the applicants, who are impleaded as

accused nos. 22 and 23 alongwith other accused

persons. However, at the stage of framing of the charge,

it was observed by the Special Judge, Nanded that the

said complaint had been directly filed in the Court of

3 CRI APPLN NO.106.2007.odt

Sessions. Consequently, the learned Additional Sessions

Judge has remitted back the said case to the Court of

J.M.F.C., Naigaon Bazar by order dated 7.6.1995.

Thereafter, by order dated 6.10.1995 the learned

J.M.F.C., Naigaon, after securing appearance of the

applicants/accused in the case which was remitted to

his Court, committed the case to the Sessions Court,

Nanded. Initially, the applicant no.1 had filed an

application for discharge, however, said application

came to be rejected. Both the applicants thereafter,

filed an application Exh.224 in the aforesaid Special

Case No.27/2000 and the learned Adhoc Additional

Sessions Judge, Biloli, by its impugned judgment and

order dated 26.10.2005, rejected the said application.

Hence, this criminal application.

3. The learned counsel for the applicants submits

that, the applicants had registered the crime on the

basis of the F.I.R lodged by one Khakiba in respect of

the same incident, however, said Khakiba had not made

any allegations in his complaint inviting thereby the

provisions of Atrocities Act. The learned counsel

4 CRI APPLN NO.106.2007.odt

submits that, on the basis of the complaint lodged by

the rival group, another crime also came to be registered

in respect of the said incident. During the course of

investigation, statement of the present respondent no.2-

complainant came to be recorded which was verified by

the superior officers, wherein he had not stated

anything about the caste abuses given to his brother

Sanjay on the day earlier to the day of incident. Both

the applicants are public servants and there is nexus

between the act complained of and the official duties

performed by them.

Learned counsel has further pointed out that on

the basis of the complaint lodged by said Khakiba crime

no.44/1993 came to be registered against other accused

persons and accordingly those accused persons were

tried by the Court in RCC No.40/1993. In that case, the

present applicants are not arrayed as an accused. The

learned counsel has produced the copy of the judgment

delivered in the said RCC No.40/1993 and pointed out

that, the witnesses in the said case, including present

respondent no.2 complainant, had not supported the

prosecution case. Thus, the learned J.M.F.C., Naigaon

5 CRI APPLN NO.106.2007.odt

(Bazar) by its judgment and order dated 21.4.1994 in the

said RCC No.40/1993 acquitted all the accused.

Learned counsel has further pointed out that even in

the present Special Case No.27/2000, the learned

Additional Sessions Judge, Biloli, District Nanded by its

judgment and order dated 24.12.2011 acquitted all the

accused except the present applicants, who are original

accused nos. 22 and 23 for the reason that this court

had stayed further proceedings in the said case as

against the present applicants. Learned counsel

submits that, the applicants being public servants,

sanction as required under section 197 of the Cr.P.C. is

necessary and further in the backdrop of the aforesaid

facts, no purpose would be served by continuing the

prosecution against the present applicants at this stage.

4. Learned counsel for respondent no.2-original

complainant submits that, in respect of the incident

dated 7.3.1993, respondent no.2 has made a specific

allegations that other accused persons have prevented

one person belonging to Mang community to touch the

fire of Holi by abusing the people of Mang community in

6 CRI APPLN NO.106.2007.odt

filthy language. Learned counsel submits that the

applicants, even though respondent-complainant had

orally reported the said incident to them, failed to

register the crime under the provisions of Atrocities Act

and further insisted respondent-complainant to bear

expenditure to prosecute the said accused persons.

Even the applicants misused their powers as police

officers and registered the crime against the people of

Mang community. Learned counsel submits that, the

documents submitted at later stage before this Court

cannot be considered for deciding the application for

discharge. Learned counsel submits that, both the

applicants have committed an offence for which no

sanction under section 197 of the Cr.P.C. is required.

The learned Adhoc Additional Sessions Judge, Biloli has

rightly rejected the application Exh.224. No interference

is required. There is no substance in the criminal

application.

5. I have also heard the learned APP for the

respondent State.

7 CRI APPLN NO.106.2007.odt

6. It appears from the impugned order that prior to

filing of application Exh.224, applicant no.1 has filed an

application for discharge and same came to be rejected

by the court. The learned Adhoc Additional Sessions

Judge has entertained application Exh.224.

7. On careful perusal of the complaint, it appears

that the complaint was filed in respect of the incident

that has occurred on 8.3.1993 at about 9.00 a.m. In the

complaint, a reference has been given to the incident

that has occurred on 7.3.1993, wherein the other

accused persons named in the complaint abused the

people of Mang community on caste basis when one of

them tried to touch the fire of holi festival. It is a matter

of record that, so far as incident dated 8.3.1993 is

concerned, the applicants have registered the crime

No.44/1993 on the basis of the complaint filed by one

Khakiba. So far as the complaint filed by one Khakiba

is concerned, it has only alleged in the said complaint

that other accused persons formed an unlawful

assembly with a common object to cause hurt to the

complainant and witnesses and in prosecution of common

8 CRI APPLN NO.106.2007.odt

unlawful object, the other accused persons committed

the offence of riot with a deadly weapons like axes,

sticks, stones, chain etc., It is also a matter of record

that the present applicants during the course of

investigation of crime No.44/1993, recorded statement

of present respondent No.2-Dadarao. Even at

subsequent stage, when the statement of respondent

Dadarao came to be recorded by the S.D.P.O., he has

accepted that in his statement recorded by the present

applicant no.1 on 8.3.1993, he had not made allegations

against the other accused persons inviting thereby the

penal provisions of Atrocities Act. It further appears

that belatedly, respondent-complainant Dadarao

approached to the Sessions Court, Nanded and filed a

complaint by making allegations against other accused

persons in respect of the incident dated 7.3.1993. For

the first time, in this complaint the allegations have

been made against other accused persons for having

committed an offence punishable under the provisions

of the Atrocities Act.

9 CRI APPLN NO.106.2007.odt

8. The learned counsel for the applicant has

produced on record certified copies of the judgment and

order of acquittal delivered in RCC No.40/1993 and

judgment and order of acquittal delivered in RCC

No.39/1993 and further the judgment and order of

acquittal passed by the Additional Sessions judge, Biloli

District Nanded dated 24.12.2011 in the case which is

subject matter of the present criminal application

Special (Atrocity) case No.27/2000.

9. In the case of Rukmini Narvekar v. Vijaya

Satardekar and others, reported in AIR 2009 SC

1013, in para 9 and 29 of the judgment, the Supreme

Court has made the following observations:-

"9. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227 Cr.P.C. can be taken into consideration by the learned magistrate at that stage. However, in a proceeding taken therefrom under Section 482 Cr.P.C.

the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi's case (supra) by the larger Bench to which the very same question had been referred.

"29. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by

10 CRI APPLN NO.106.2007.odt

the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which

convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the

Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted."

10. In the light of aforesaid ratio laid down by the

Supreme Court in paragraph no. 9 and 29, there

cannot be an absolute proposition that under no

circumstances can the Court look into the material

produced by the defence at the time of framing of the

charge, though this should be done in very rare cases

i.e. where the defence produces some material which

convincingly demonstrates that the whole prosecution

case is totally absurd or totally concocted and then the

court is justified in looking into the material produced

by the defence at the time of framing of charge.

11. On perusal of the judgment and order of acquittal

passed by the Additional Sessions Judge, Biloli dated

24.12.2011 in Special Case No.27/2000, it appears that

the Additional Sessions Judge has given reference to

Judgment and order of acquittal passed by the learned

11 CRI APPLN NO.106.2007.odt

Magistrate in RCC No.40/1993. It is not out of place to

mention here that, RCC No.40/1993 was registered on

the basis of complaint lodged by said Khakiba in respect

of the incident dated 8.3.1993. In RCC No.40/1993 the

Court has recorded the statement of said Khakiba and

present respondent-complainant Dadarao. In paragraph

no.17 of the judgment of atrocity case no.27/2000, the

learned Additional Sessions Judge, Biloli has specifically

observed that the complainant and his witnesses did

not state about the abuses on the caste given by the

accused persons to them in a case bearing RCC

No.40/1993. On perusal of the judgment and order of

acquittal passed by the J.M.F.C., Naigaon Bazar in RCC

No.40/1993, it appears that present respondent-

complainant Dadarao deposed before the Court that on

8.3.1993, somebody beat them. On perusal of the said

judgment, it appears that there is no whisper about the

said incident dated 7.3.1993 and abuses given to the

complainant and his witnesses on caste basis.

12. It thus appears that in respect of the incident

dated 8.3.1993 on the basis of complaint lodged by

12 CRI APPLN NO.106.2007.odt

Khakiba, present applicants have registered crime

no.44/1993 and during the course of investigation also

recorded statement of the present respondent-

complainant Dadarao. In a complaint which is subject

matter of crime No.44/1993, said Khakiba had not

made any allegations about the caste abuses given to

the people of Mang community on 7.3.1993. It is also a

part of record that on the basis of the complaint lodged

by rival group applicants have registered crime

No.45/1993 against the present complainant and other

persons. It is also a part of record that present

respondent-complainant has admitted in his

subsequent statement recorded by the S.D.P.O. that in

his earlier statement, recorded by the present applicant

no.1, he had not stated about the incident, allegedly

occurred on 7.3.1993.

13. In view of the above discussion, a necessary

reference can be given to the observations made by the

Supreme Court in the case of D.T. Virupakshappa Vs.

C. Subash, reported in (2015) 12 SCC 231. The Supreme

Court in para 8 and para 5 of the said judgment, has

13 CRI APPLN NO.106.2007.odt

referred the case of Omprakash and others vs. State of

Jharkhand, through the Secretary, Department of

Home, Ranchi 1 and another and quoted paragraphs 32

and 41, respectively, of the said judgment, which read as

under:-

"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 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 he 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. (Emphasis supplied)"

41. 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

14 CRI APPLN NO.106.2007.odt

documents produced by the accused or the public servant concerned 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."

14. In the instant case, there is a close nexus between

the act complained of and the official duties performed

by the applicants for which sanction under section 197

of the Cr.P.C. is required. It further appears that, no

purpose would be served in continuing of the

prosecution as against the present applicants since

other accused persons came to be acquitted by the

Additional Sessions Judge, Biloli in Special Atrocity

Case No.27/2000. Furthermore, in respect of the same

incident, on the basis of the complaint lodged by said

Khakiba and also statement of the present respondent

no.2, the accused named therein were tried by the

learned Magistrate vide RCC No.40/1993 and all

accused came to be acquitted in the said case. The

learned Additional Sessions Judge has not considered

these aspects.

15. In view of this, I proceed to pass following order.

                                            15      CRI APPLN NO.106.2007.odt

                                       O R D E R




                                                                              

I. Criminal application is hereby allowed.

II. The order passed by the Adhoc Additional Sessions Judge, Biloli, dated 26.10.2005 below

Exh.224 in Special Case No. 27 of 2000 is hereby quashed and set aside.

III. The application Exh.224 in Special Case No. 27 of 2000 is hereby allowed. The applicants

original accused Nos. 22 and 23, respectively, are hereby discharged in Special Case No. 27 of

2000.

IV. Rule is made absolute in the above terms.

V. Criminal application is accordingly disposed of.

sd/-

( V.K. JADHAV, J. )

...

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