Bombay High Court
Valmik Manikrao Avhale And Others vs State Of Maharashtra, Ministry Of ... on 28 November, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO.142 OF 2015
PETITIONERS/: 1. Valmik Manikrao Avhale, Aged 57 years,
APPLICANTS: Occ:Service, Dy. S. P. Anti Corruption
Bureau Washim, Tq. District : Washim.
2. Ravikant S/o Prabhakar Deshmukh,
Aged 49 years, Occ: Service, Police Head
Constable Anti Corruption Bureau,
Washim, Tq. and District Washim.
3. Ramesh S/o Parashram Tajne, Aged
about 48 years, Occ: Service, Police
Head Constable Anti Corruption Bureau
Washim, Tq. and District Washim.
4. Sanjay S/o Ramchandra Kalane, Aged
about 50 years, Occ: Service, Polic Head
Constable, Anti Corruption Bureau,
Washim, Tq. and District Washim.
5. Ramshwar S/o Shankar Halavane, Aged
about 50 years, Occ:Service, Police Head
Constable, Anti Corruption Bureau,
Washim, Tq. And District Washim.
6. Atish S/o Gajananrao Kalmundale, Aged
about 35 yars, Occ: Service, Naik Police
Constable, Anti Corruption Bureau,
Washim, Tq. and District: Washim.
::: Uploaded on - 07/12/2017 ::: Downloaded on - 08/12/2017 00:46:13 :::
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7. Vinod S/o Damodhar Survey, Aged
about 40 years, Occ:Service, Naik Police
Constable, Anti Corruption Bureau,
Washim, Tq. And District Washim.
-VERSUS-
RESPONDENTS: 1. State of Maharashtra, Ministry of Home,
Through its Secretary, Mantralaya,
Mumbai-32.
2. Police Station Officer, Police Station
Pusad, Tq. Pusad, District: Yeotmal.
3. Deputy Superintendent of Police, Anti
Corruption Bureau, Yeotmal.
4. Suresh S/o Kashiram Rathod, Aged 42
years, Occ:Service, Head Constable
under suspension, R/o Vasant Nagar,
Pusad, Tq. Pusad, District Yeotmal.
Shri S. V. Sirpurkar, Advocate for the applicants.
Shri J. Y. Ghurde, Addl. Public Prosecutor for respondent nos.1 to
3.
Shri S. A. Chaudhari, Advocate for non-applicant no.4.
CORAM: A.S. CHANDURKAR, J.
DATED: NOVEMBER 28, 2017
ORAL JUDGMENT :
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1. By this application filed under Section 482 of the Code
of Criminal Procedure, 1973 (for short, the Code) the order dated
8-1-2015 by which the learned Magistrate has been pleased to
issue process against the applicants herein for the offences
punishable under Sections 143, 324, 395 read with Section 149 of
the Indian Penal Code is under challenge.
2. It is the case of the applicants who are all serving as
members of the police force that on receiving information, a trap
was laid in connection with the alleged demand of bribe by the
non-applicant no.4. Said non-applicant no.4 was serving as Head
Constable with the concerned Police Station. The raid was
accordingly conducted on 21-7-2014 and said trap was said to be
successful. The crime was accordingly registered being Crime
No.3168/2014 under provisions of Sections 7, 13(1)(d) and 13(2)
of the Prevention of Corruption Act, 1988 (for short, the Act of
1988). Thereafter on 16-10-2014, the non-applicant no.4 filed a
private complaint before the learned Magistrate alleging that the
present applicants were guilty of having committed offence
punishable under Sections 143, 324,395 read with Section 149 of
the Penal Code. According to the non-applicant no.4, this act was
committed in excess of official duties of the applicants. The
learned Magistrate was pleased to direct the non-applicant no.4 to
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lead his evidence. After the same was done, process came to be
issued on 8-1-2015. Being aggrieved the present application has
been filed challenging the said order.
3. It is submitted by Shri S. V. Sirpurkar, learned Counsel
for the applicants that the complaint filed by the non-applicant
no.4 is merely by way of an afterthought and for seeking
vengence. According to him, the bribe trap under the Act of 1988
was successfully carried out by the applicants herein on 21-7-2014.
After the non-applicant no.1 was put under arrest, he was
produced in the Court of the learned Magistrate on the next day.
At that point of time the non-applicant no.4 did not make any
grievance whatsoever about the alleged injuries caused by the
applicants. After being released on bail, the non-applicant no.4
obtained medical treatment and after about three months filed the
said complaint. The applicants had acted in the discharge of their
official duties while carrying out the raid. In view of provisions of
Section 197 of the Code they were entitled for due protection and
unless the sanction was obtained for prosecuting the applicants,
the proceedings in the complaint could not have been entertained.
In support of his submissions, the learned Counsel placed reliance
on the decisions in M/s Zandu Pharmaceutical Works Ltd. And ors.
Vs. Md. Sharaful Haque and Ors 2004 ALL MR (Criminal) 3462, D.
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T. Virupakshappa vs. C. Subash 2015 ALL MR (Criminal) 2434 and
Manoj S/o Prabhakar Lohar Vs. Rahemat Bee Mohd Hasam & anr.
2016 ALL MR (Criminal) 539 to urge that sanction under Section
197 of the Code was necessary. It was then submitted that the
present was a case in which jurisdiction under Section 482 of the
Code deserves to be exercised on the ground that there was a legal
bar against the institution of said proceedings and further that the
complaint had been filed for wrecking vengence. These aspects of
the matter were not taken into consideration by the trial Court
while issuing process and on that count, the impugned order was
liable to be set aside.
4. Shri S. A. Choudhari, learned Counsel for the non-
applicant no.1 opposed aforesaid submissions. According to him, it
was the grievance of the non-applicant no.4 that the acts done by
them as alleged were not part of their official duty but in escess
thereof. According to him, considering the nature of injuries
sustained by the non-applicant no.4 it was clear that the applicants
had used excessive force on the non-applicant no.4 while
conducting the raid as a result of which the non-applicant no.4
suffered fractures. It was submitted that the protection under
Section 197 of the Code could not be claimed in such situation. It
was then submitted that on a plain reading of the complaint and
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the statement of the non-applicant no.4, a prima facie case against
the applicants had been made out and therefore process was
rightly issued by the learned Magistrate. There was no case made
out to interfere with the order issuing process.
Shri J. Y. Ghurde, learned Additional Public Prosecutor
for the non-applicant nos.1 to 3 submitted that in the facts of the
case sanction was necessary as the incidents alleged are said to
have taken placed when the raid under the Act of 1988 had taken
place.
5. I have heard the learned Counsel for the parties at
length and I have perused the documents placed on record.
Perusal of the complaint filed by the non-applicant no.4 indicates
that on 21-7-2014 when the said non-applicant no.4 was
discharging duties as Naik Police Constable, he was called to a
Hotel by one Kausar Shaikh. The non-applicant no.4 therefore
went to the said Hotel and after having tea he found the present
applicants had come there. They held the hands of the non-
applicant no.4 and brought him outside the Hotel. The applicant
was then assaulted and the non-applicant no.4 was injured in that
process. It was then stated that a false trap was laid and on that
basis Crime No.3168/2014 was registered against the non-
applicant no.4 under provisions of the Act of 1988. The non-
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applicant no.4 was initially examined and he desired to have
treatment at a private hospital, but he was not sent there. On the
next day, he was produced in the Court and thereafter he was
released on bail. On 23-7-2014 he found that he had suffered a
fracture for which he took treatment and after a month the
bandages were removed. It is on this basis that the complaint
alleging offence punishable under Sections 143, 324, 326, 392
read with Section 34 of the Penal Code came to be filed.
6. Perusal of the entire complaint indicates that the
alleged incident is said to have occurred on 21-7-2014 when
according to the non-applicant no.4 he was falsely implicated in a
trap after which Crime No.3168/2014 under the Act of 1988 came
to be registered. The allegation against the applicants is of use of
excessive force while allegedly implicating the non-applicant no.4
in the bribery trap. In this regard, if the report lodged by the
complainant Kausar Shaikh dated 21-7-2014 is perused it can be
seen that said complainant has stated that the non-applicant no.4
had demanded an amount of Rs.3000/- from the said complainant
for deleting the name of an accused from Crime No.324/2013. It
is on this basis that a trap was laid and the non-applicant no.1
was arrested. The non-applicant no.4 was produced in Court on
the next day and then released on bail. Considering the averments
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made in paragraphs 1 to 4 of the complaint, it can be seen that the
allegations regarding use of excessive force by the applicants is
when the bribery trap was carried out by the applicants. The
applicants being members of the police force, they were acting on
the basis of report lodged by said Kausar Shaikh that the non-
applicant no.4 had demanded bribe amount of Rs.3,000/-.
7. Under the provisions of Section 197 of the Code, if
there is a reasonable connection between the act alleged and
discharge of duty by the accused persons, sanction under Section
197 of the Code would be necessary. Reference in this regard can
be made to the decision of the Hon'ble Supreme Court in DT
Virupakshappa (supra). In the context of police excess during
discharge of official duty, it was held that if there is reasonable
connection between the act alleged and performance of official
duty, the excess would not be a sufficient ground to deprive the
pubic servant of the protection. It is therefore found that in the
light of averments in the complaint, it was necessary for the non-
applicant no.4 to have obtained sanction before proceeding in the
complaint against the applicants herein. Failure to obtain sanction
has resulted in vitiating the order issuing process.
8. In so far as quashing of the entire complaint is
concerned, it is the contention of the applicants that the non-
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applicant no.4 had filed the complaint out of vengence. While
considering this submission, the allegations in the complaint would
have to be taken at their face value and if it is thereafter found
that said allegations do not constitute the offence alleged, then the
proceedings can be quashed. However, when the allegations in the
complaint are read as a whole it cannot at this stage be said that
the same do not constitute the offence as alleged. I find that the
complaint deserves to be tried on merits. The allegations made in
the complaint cannot be ignored while considering the stand of the
applicant that the complaint was filed out of vengence. Hence, I
am not inclined to quash the entire complaint on that count.
Needless to state that this contention can be raised before the trial
Court by way of defence by the applicants if so advised.
9. In view of aforesaid discussion, the following order is
passed:
(1) It is held that in the facts of the present case prior
sanction under Section 197 of the Code is necessary. In absence
thereof the order issuing process cannot be sustained. Hence, the
order dated 8-1-2015 passed in Regular Criminal Case No.25/2015
issuing process against the applicants is set aside.
(2) It is open for the non-applicant no.4 to seek sanction
under Section 197 of the Code in accordance with law. During this
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period, the proceedings in the complaint shall remain stayed. In
case such sanction is obtained, the learned Magistrate shall
proceed further with the complaint in accordance with law.
(3) Observations made in the order are only for deciding
the present application which is allowed in aforesaid terms.
JUDGE
/MULEY/
