Anil S/O. Subhash Paraskar, Ips vs State Of Maharashtra Thr. ...
2021 Latest Caselaw 10099 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.


                             WRIT PETITION NO. 550                         OF 2017


PETITIONER :                                   Anil s/o Subhash Paraskar, IPS, aged 36
                                               years, Occupation Service Superintendent of
                                               Police, presently posted at Alibaug,
                                               Maharashtra.

                                                    -VERSUS-

RESPONDENTS :                          1.      State of Maharashtra, through its Principle
                                               Secretary, Home Department, Mantralaya,
                                               Mumbai.

                                       2.      Devendra s/o Harichand Uikey, aged 30
                                               years, occupation : Labor, R/o Hariom
                                               Colony, Hadditoli Road, Civil Lines, Gondia.

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                    Mr. P. K. Sathianathan, counsel for the petitioner.
                    Mr. Sagar Ashirgade, APP for respondent No.1.
                      Mr. U.K.Bisen, counsel for respondent No.2.
----------------------------------------------------------------------------------------------------------------------



                                                CORAM : MANISH PITALE, J.

                                                DATE           : 02.08.2021


ORAL JUDGMENT

By this writ petition, the petitioner is seeking quashing of order

dated 10/06/2013 passed by the Chief Judicial Magistrate, Gondia and

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also quashing of Regular Criminal Case No.434 of 2013, insofar as the

petitioner is concerned.

2. In the present case, an F.I.R. dated 20/02/2013 stood registered

against respondent No.2 under section 353, 354 and 504 of the Indian

Penal Code (IPC). It was alleged that when respondent No.2 was

apprehended for violating traffic rules, he allegedly acted in a manner

against a lady Police Constable, which led to registration of the aforesaid

offence. It was then alleged by respondent No.2 that when he was

apprehended and taken to the Police Station, he was assaulted by Police

personnel. On the basis of the aforesaid grievance raised by respondent

No.2, a judicial enquiry was initiated and a report dated 04/05/2013 was

submitted by the 6th Joint Civil Judge, Junior Division and Judicial

Magistrate First Class before the Principal District and Sessions Judge,

Gondia.

3. After considering the material, the said Magistrate concluded that

three Police personnel viz. Goswami, Borkar and Parashar concerned with

Ram Nagar Police Station had assaulted respondent No.2.

4. On this basis, on 10/06/2013, the Chief Judicial Magistrate, Gondia

passed the impugned order, directing that case be registered as Regular

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Criminal Case against the aforesaid three persons for offence punishable

under section 324 read with section 34 of the IPC. It is as a consequence

of the said order that Regular Criminal Case No.434 of 2013 stood

registered. The said order dated 10/06/2013, specifically states that the

complaint case be registered against Goswami, Borkar and Parashar.

5. It is the case of the petitioner before this Court that although the

aforesaid order of the Chief Judicial Magistrate specifically directs that

summons be issued against the said three persons, i.e. Goswami, Borkar

and Parashar, the petitioner, who is Anil s/o Subhash Paraskar, an IPS

Officer, has been receiving summons in the said case. The petitioner was

at the relevant time working as Additional Superintendent of Police at

Gondia. It is his case that he has no concern with the incident in question

and the conclusion rendered by the Judicial Magistrate First Class in the

aforesaid judicial enquiry also does not name him and instead names one

Parashar along with Goswami and Borkar as the Police personnel

responsible for the said incident.

6. It is submitted by Mr. Sathianathan, learned counsel appearing for

the petitioner that in these circumstances repeated issuance of summons to

the petitioner is wholly misplaced and that the pendency of the aforesaid

criminal case is unnecessarily leading to harassment of the petitioner. It is

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further submitted that there is no sanction order in the present case to

proceed against the petitioner and that for this reason also the petition

deserves to be allowed. Reliance is placed on the judgment of the Hon'ble

Supreme Court in the case of D.T. Virupakshappa v. C. Subash, reported in

AIR 2015 SC 2022.

7. On the other hand, Mr Ashirgade, learned APP appearing on behalf

of respondent No.1-State, submits that the record does show that

summonses are directed to be issued against one Parashar along with

Goswami and Borkar and that the name of the petitioner does not figure in

the report submitted pursuant to the judicial enquiry and also not in the

impugned order dated 10/06/2013. It is submitted that on facts, the

learned counsel appearing for the petitioner is correct in stating that there

is no sanction order in the present case to proceed against the petitioner.

8. Mr. Bisen, learned counsel appearing for respondent No.2, submits

that the record shows the name of one Parashar and not of the petitioner,

who is Anil s/o Subhash Paraskar.

9. Heard the learned counsel for the rival parties and perused the

record. The report of the judicial enquiry in the present case dated

04/05/2013, submitted by the Judicial Magistrate First Class, shows that

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the conclusion specifically names Goswami, Borkar and Parashar as the

three Police personnel, who allegedly assaulted respondent No.2 in the

Police Station. The impugned order dated 10/06/2013, also names the

aforesaid three persons, directs registration of a regular complaint case

against them for the offence punishable under section 324 read with

section 34 of the IPC and further directs issuance of summons against the

said three accused persons.

10. In the face of the aforesaid admitted material on record, it is

difficult to understand as to how the petitioner, who is Anil Subhash

Paraskar, an IPS officer, is sought to be summoned on the basis of

conclusion in the said judicial enquiry and the impugned order dated

10/06/2013. The name of the petitioner does not figure in either the

enquiry report or the impugned order dated 10/06/2013. Therefore,

summons could not have been issued to the petitioner at all.

11. It is also an admitted position that in the present case there is no

sanction order for proceeding against the petitioner. The learned counsel

appearing for the petitioner is justified in relying upon the judgment of the

Hon'ble Supreme Court in the case of D. T. Virupakshappa v. C. Subash

(supra) wherein, the Hon'ble Supreme Court in similar circumstances

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found that when the allegation was against an accused, who had exceeded

in exercising his power during investigation by assaulting the accused in

the Police Station, sanction order was necessary to proceed against such a

person as the offensive conduct could reasonably be connected with the

performance of official duty.

12. In the present case, this Court finds that even if the material on

record is to be accepted as it is, the petitioner cannot be connected with

the incident in question or the allegations levelled by respondent No.2.

Accordingly, it is found that the present writ petition deserves to be allowed.

13. In view of the above, the writ petition is allowed. It is held that the

impugned order dated 10/06/2013 and the consequent summons issued in

the matter deserve to be set aside to the extent that they do not pertain to

the petitioner before this Court. Accordingly, it is held that Regular

Criminal Case No.434 of 2013 has no concern with the petitioner before

this Court as an accused and that therefore, the concerned Court shall not

proceed against the petitioner as an accused in the said case.

14. Rule is made absolute in the above terms.

JUDGE

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