Bombay High Court
Vishnupanth Appasaheb Bedre And ... vs The State Of Maharashtra And Anr on 28 November, 2016
Bench: V.K. Jadhav
1 CRI WP 344.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 344 OF 2007
1. Vishnupanth S/o Appasaheb Bedre,
Age. 50 years, Occ. Government Service,
working as Police Inspector, Police
Welfare at Head Quarter, Parbhani,
Taluka & District: Parbhani,
R/o. Saraswati Nagar, Parbhani,
Taluka & District: Parbhani.
2. Dhannusingh S/o Shrichand Dangre,
Age. 40 years, Occ. Government Service,
working as Police Constable, at present
with Madvi Police Station, Taluka: Kinwat,
District: Nanded.
3. Balaji S/o Laxman Mahagaonkar,
Age. 30 years, Occ. Government Service,
working as Police Constable (Bakkal No. 1111)
with Mudkhed Police Station,
Taluka: Mudkhed, District: Nanded.
4. Vinod S/o Punjaji Padilwar,
Age. 25 years, Occ. Private Service,
i.e. Driver on private vehicle,
R/o. Village Malwada, Taluka: Mahur,
District: Nanded. ...PETITIONERS
VERSUS
1. The State of Maharashtra,
Through Police Inspector,
Police Station, Mahur,
Taluka: Mahur, District: Nanded.
2. Sumanbai W/o Mohanlal Jaiswal,
Age. 60 years, Occ. Household,
R/o. Village Digdi, Taluka: Mahur,
District: Nanded. ...RESPONDENTS
::: Uploaded on - 30/11/2016 ::: Downloaded on - 01/12/2016 00:41:35 :::
2 CRI WP 344.2007.odt
...
Advocate for Petitioners : Mr Rajendra Deshmukh
APP for Respondents: Mr S P Tiwari
Advocate for Respondent 2 : Mr P P Mandlik h/f Amol S
Gandhi.
...
CORAM : V.K. JADHAV, J.
Dated: November 28, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the order passed below Exh.1
in RCC No.105/2003 passed by Judicial Magistrate First
Class, Kinvat dated 17.4.2003 thereby issuing process
against the present applicant-accused for the offence
punishable under section 451, 395, 504 read with 34 of
I.P.C. and the judgment and order passed by the
Sessions Judge, Nanded 23.5.2007 in Criminal Revision
No.101/2003 confirming thereby the order passed by
the learned Magistrate and dismissed the revision
petition, the petitioner-applicants original accused
preferred this writ petition.
2. Brief facts, giving rise to the present
The respondent no.2-complainant has filed the
complaint before J.M.F.C Kinwat alleging therein that,
on 15.3.2003 at about 12.30 p.m. accused nos. 1 to 5
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came to her house in a private jeep bearing registration
No.MH-29/G-355. The applicant accused no.5 was
driving the jeep and sitting in the jeep and the
applicants accused 1 to 4 who are the police men
attached to Police Station Mahur entered in the bed
room of the daughter in law of respondent complainant.
it has also alleged in the complaint that, the applicant-
accused no.1 was under the influence of liquor and was
unable to take care of himself. It has further alleged
that in the complaint that, applicant-accused no.2
abused complainant in filthy language the applicant
accused no.1 scattered the bed sheet and the mattress.
It has also alleged the applicant accused no.1 took the
cash amount of Rs.9,000/- and also took the cordless
telephone kept on the table and put it in the pocket.
The learned Magistrate had directed the respondent-
complainant to produce all the witnesses. The
complainant has examined herself and also examined
two more witnesses. Respondent-complainant has also
placed on record certified copy of FIR of crime
no.12/2003. She has also produced on record certified
copy of the plea recorded by the court in SCC
4 CRI WP 344.2007.odt
No.1030/2001. She has also produced on record
certified copy of Exh.13 of the order sheet of SCC
No.1030/2001. The learned J.M.F.C. Kinvat by its order
dated 17.4.2003 after considering the aforesaid evidence
and the documents placed on record issued process
against the present applicants-accused for the offence
u/s 451, 395, 504 r/w 34 of Indian Penal Code.
3.
The applicant accused preferred criminal rev. No.
105/2003 before the Sessions Judge, Nanded and the
learned Sessions Judge, Nanded by its impugned
judgment and order dated 23.5.2007 dismissed the
revision by confirming the order passed by the
Magistrate. Hence this criminal writ petition.
4. The learned counsel for the petitioner-original
accused submits that, on 15.3.2003 the applicants 1 to
4 went to village Digadi by private vehicle for effecting
the raid. On that day, applicant no.1 had received a
secret information about the gambling at village Digadi
and accordingly, in a private vehicle left the police
station for the said village Digadi, for effecting raid.
5 CRI WP 344.2007.odt
Learned counsel submits that, entry to that effect was
taken in the station diary and, the extract of the station
diary is placed on record which is marked as annexure
'A' page 19 of the writ petition. By referring the extract
of the station diary, learned counsel for the petitioner
has further pointed out that, on that day as per entry
no.18 senior P.I. has left the police station at about
09.00 am in a official jeep for investigating crime
No.20/2003.
5. Learned counsel submits that, since the official
vehicle was not available and further raid was required
to be effected in terms of the secret information received
by the applicant-accused about the offence of gambling
being committed at village Digadi there was no question
of proceeding to village Digadi in a official vehicle. At
the same time, just to keep secrecy and further for
effecting raid, it is rather justified that if the applicants-
accused being a police man went to village Digadi for
effecting such raid in a private vehicle and in civil
clothes. Learned counsel has further pointed out copy
of the charge sheet placed on record which is marked as
6 CRI WP 344.2007.odt
annexure 'B'. Said charge sheet was filed before the
J.M.F.C. on 31.3.2003 in respect of Crime no.12/2003
registered on 15.3.2003. Learned counsel submits that,
same is not disputed as complainant has also placed on
record copy of FIR of crime no.12/2003 alongwith
complaint and same is marked at Exh.11. Learned
counsel submits that, on perusal of the said charge
sheet, it appears that, one Vinod Jaiswal was the
accused in the said case, who happened to be the son of
respondent-complainant. Furthermore, on the same
day, another crime no.13/2003 came to be registered in
respect of another raid effected in the same village
wherein nephew of respondent no.2-complainant was
shown as accused. Learned counsel has further
submits that, respondent no.2 complainant has made
specific allegations in the complaint that applicant no.1-
original accused took out a cordless phone kept on the
table of bedroom of the complainant's daughter in law,
however, said cordless phone of Nokia Company is the
muddemal property in Crime No.13/2003. Said
cordless phone was seized in the aforesaid crime and it
was produced before the Court alongwith charge-sheet.
7 CRI WP 344.2007.odt
Learned counsel submits that, in both the crimes nos.
12/2003 and 13/2003 respectively, some of the accused
persons named therein came to be arrested on the spot
itself alongwith cash amount and said cash amount was
seized from their possession. Learned counsel submits
that, it is thus clear that, applicant-accused were
discharging their official duties on 15.3.2003 at about
12.30 p.m. and onwards and respondent-complainant
has alleged in her complaint that the applicant-accused
on the same date and time entered in the bed room of
her daughter-in-law and took away the cash amount
and said cordless phone. Learned counsel submits
that, there is reasonable nexus between the act
complained of and official duties performed by the
applicants-accused no. 1 to 4. Learned counsel submits
that the courts below have given unnecessary weightage
to the fact that son of respondent no.2-complainant was
present in the Kinwat Court and on that day his plea
was recorded in one another criminal case by the Court.
Admittedly, village Digdi is at a distance of 40 kms from
Kinwat. It has alleged in the complaint which is subject
matter of crime no.12/2003 that said accused Vinod
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fled away from the spot. F.I.R. in the said crime was
lodged at 12.30 p.m. onwards and before raid was
conducted, if the said Vinod Fled away from the spot at
the time when raid was commenced, then, it was easy
for him to reach to Kinwat and appear in the criminal
case. Learned counsel submits that, instead of
appreciating this, the Magistrate has observed that the
document of crime no.12/2003 is self created document
of the defence or the accused showing that at the
relevant time they visited the house of the complainant.
Learned counsel submits that, the court can look into
the documents produced by the accused even at the
inception if the documents pointing out unassailable
and unimpeachable circumstances on record. Learned
counsel submits that the previous sanction is a pre-
condition for taking cognizance of the offence and order
of the Magistrate issuing process against the applicants-
accused without there being any sanction is thus liable
to be quashed and set aside.
6. Learned counsel for the petitioner, in order to
substantiate his contentions places his reliance on
9 CRI WP 344.2007.odt
following cases :-
1. Criminal appeal No. 722 of 2015, delivered on
27.04.2015 (D.T. Virupakshappa Vs. C.
Subash).
2. Pepsi Foods Limited & Anr. V/s. Special
Judicial Magistrate reported in 1998 (1)
Mh.L.J. 599.
7. Learned counsel for respondent-complainant
submits that, the probable defence of the accused
cannot be considered at the time of issuance of process.
The learned Magistrate has considered the evidence of
the complainant and her witnesses and further on
perusal of the documents including F.I.R. of Crime
No.12/2003 rightly issued the process against the
applicants-accused. The learned counsel submits that,
even the learned Additional Sessions Judge has also
considered point of sanction raised in the revision.
Learned counsel submits that, sanction as provided
under section 197 of Cr.P.C. is required only if the act
constituting an offence was done by the police officer in
their official capacity.
8. In the instant case, admittedly, the applicant-
accused went to village Digadi in private jeep at a
10 CRI WP 344.2007.odt
private place and subjected the complainant with
certain atrocities. Learned counsel submits that
grounds raised by the applicants-accused would be
relevant during the trial and not for the purpose of
passing order of issuance of process. Further, the
applicant-accused have committed offence for which
sanction is not required.
9.
Learned counsel submits that both the courts
below have rightly issued process against the
applicants-accused for having committed an offence
punishable under sections 451, 395, 504 r/w 34 of IPC.
No interference is required. Criminal Writ Petition is
devoid of any merits. The same is thus liable to be
dismissed.
10. I have also heard the learned APP for the State.
11. In the case of D.T. Virupakshappa Vs. C.
Subash, (supra) relied upon by learned counsel for the
petitioners, the Supreme Court in para 6 of the said
order has referred the case of Omprakash and others
11 CRI WP 344.2007.odt
vs. State of Jharkhand, through the Secretary,
Department of Home, Ranchi 1 and another and
quoted paragraphs 32 and 41 of the said judgment.
Paras 32 and 41 read as under:-
"32. The trust 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
12 CRI WP 344.2007.odt
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 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. ..."
12.
In the said case, the question of sanction whether
is necessary or not arise at the inception and there were
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 Cr.P.C. It has also observed in para 41
that it is not possible for the Court to hold that in such
a case, the Court cannot look into any documents
produced by the accused or the public servant
concerned at the inception.
13. In the instant case, on perusal of the extract of the
station diary, it is clear that on receiving secret
13 CRI WP 344.2007.odt
information, applicants 1 to 4 left the police station on
15.3.2003 in a private jeep to village Nigadi. It further
appears from the entry at sr.No.18 that P.I. of the said
police station, who is in-charge of the police station took
official jeep with him at about 09.00 a.m. on the said
date for investigating the crime No.20/2003 for the
offence punishable under section 420 r/w 34 of I.P.C. It
further appears from the perusal of charge sheet
submitted in respect of crime No.12/2003 that, raid was
effected on 15.3.2003 at about 12.30 p.m. and certain
accused persons found at village Digadi gambling Milan
Matka. Some of them came to be arrested on the spot
itself alongwith relevant articles and cash and some
accused persons fled way from the spot including son of
respondent no.2-original complainant. It is also a
matter of record that, on the same day, at village
Dighadi another raid was effected and accordingly,
crime No.13/2003 came to be registered under section
12-A of Prevention of Gambling Act. In both the crimes
accused persons arrested on the spot alongwith cash
amount and other articles required for the gambling
purpose. Furthermore, the accused and properties
14 CRI WP 344.2007.odt
seized under the said crime were produced before the
Court and after due investigation charge sheet was
submitted on 31.3.2003.
14. Respondent No.2-complainant has filed complaint
before the Court on 3.4.2003. On the backdrop of these
facts, learned Magistrate, while issuing process in
paragraph No.7 of the order has observed that, so far as
Exh.11 F.I.R. in crime No.12/2003 is concerned, it is self
created document of the defence/accused showing at
the relevant time they visited the house of the
complainant. It is quite difficult to digest these
observations because in terms of the said raid effected
by the applicants-accused at village Digdi two crimes
bearing crime no.12/2003 and 13/2003 came to be
registered and certain accused persons alongwith cash
amount and other articles required for gambling
purpose were arrested on the spot itself. Even, cordless
phone which was seized in the said crime no.13/2003,
respondent no.2-complainant has alleged in the
complaint filed on 3.4.2003 that applicant no.1 took out
said cordless phone which was kept on table placed in
15 CRI WP 344.2007.odt
the bed room of her daughter in law. It further appears
from the orders passed by the courts below that, they
have given unnecessary weightage to the plea of son of
the complainant recorded by the Court at Kinwat on the
same day. Respondent no.2-complainant has filed the
complaint before the court 18 days after the incident.
She has filed said complaint with the copies of F.I.R. of
crime No.12/2003 and also copy of the plea recorded by
the Court of her son Vinod on 15.3.2003. It appears
that it was a plan move to file complaint against the
applicants-accused before the Court. It is not clear from
the said record as to at what time plea of son of the
complainant was recorded by the court of Kinwat on
that day. Learned Magistrate has apparently made
haste in observing while issuing process against present
applicants that, if the plea of the son of the complainant
was recorded on the same day in the Kinwat Court,
entire registration of the crime nos. 12/2003 and
13/2003 are the self created documents by the accused
showing that at the relevant time they had visited the
house of the complainant.
16 CRI WP 344.2007.odt
15. In the given set of facts and circumstances of the
case, I am of the opinion that, there is a reasonable
nexus between the act complained of and discharging of
the official duties by the applicants-accused for which
sanction under section 197 of the Cr.P.C. is required.
The applicants-accused brought on record unassailable
and unimpeachable circumstances which establishes at
the outset that the applicant-accused were acting in
performance of their official duties. The Court can very
well look into the documents. The respondent-
complainant herself has produced certain documents
before the Court.
16. In view of this, without obtaining sanction which
is a precondition for taking cognizance the learned
Magistrate has issued process against the applicants-
accused. The learned Sessions Judge though considered
the said grounds failed to appreciate the aforesaid
documents placed on record and discarded the said
documents on the ground that probable defence of the
applicant-accused cannot be considered. There is no
requirement that the applicant-accused should wait till
17 CRI WP 344.2007.odt
the charges are framed to raise this plea. Furthermore,
if the respondent-complainant approaches the court
without certain witnesses making wild allegations, and
further insisting the court to ignore all the documents
such as registration of the crime, charge sheet filed
before the Court in the said crime, then observations
made by the Supreme Court in case of Pepsi Food
(supra) relied upon by learned counsel for petitioners
helps the accused. In Pepsi Foods Ltd. Vs.
Special Judicial Magistrate reported (1998) 5
SCC 749, in paragraph no.28 of the judgment,
the Supreme Court has made the following
observations:-
"28. Summoning of an accused in a criminal case is
a serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect
that he has applied his mind to the facts of the
case and the law applicable thereto. He has to
examine the nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and would that be
sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that
18 CRI WP 344.2007.odt
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before
summoning of the accused. The magistrate has to
carefully scrutinize the evidence brought on record
and may even himself put questions to the
complainant and his witnesses to elicit answers to
find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima
facie committed by all or any of the accused."
17. In view of the above discussion, the order of
issuance of process passed by the Judicial Magistrate
First class, Kinwat dated 17.4.2003 in S.C.C.
No.105/2003 does not stand. The learned Sessions
Judge has not applied his mind and erroneously
confirmed the order passed by the Magistrate.
18. In view of the above discussion and ratio laid down
by the Supreme Court in the cases cited above, I
proceed to pass the following order.
O r d e r
I. Criminal Writ Petition is hereby allowed
in terms of Prayer Clause 'B'.
II. Rule is made absolute in above terms.
19 CRI WP 344.2007.odt
III. Criminal Writ Petition accordingly
disposed off.
( V.K. JADHAV, J. )
...
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