Pyare Lal And Anr. vs Sita Ram Mamgoi And Anr.
1986 Latest Caselaw 343 Del

JUDGMENT

Jagdish Chandra, J.

(1) Petitioner No. I Pyare Lal is the father of petitioner No. 2 Jagdish Kumar Ghai and both of them have filed this revision petition under Sections 397/401 of the Code of Criminal Procedure, 1973 (in short 'the Code') against the judgment dated Ä23rd September, 1985 passed by Shri Mahesh Chandra, then Addl. Sessions Judge, New Delhi, who had accepted the revision petition of respondent No. I and set aside the order of summoning dated 3rd June, 1985 passed by Shri O.P. Gupta, Metropolitan Magistrate, New Delhi, on the complaint of the petitioners.

(2) The petitioners had filed a complaint against respondent Sita Ram Mamgoi, then S.H.O. of Police Station Lodhi Colony. New Delhi, and the Police Commissioner and the State under Sections 326/307/506/354/355/356/357 Indian Penal Code alleging that on 25th July, 1984 at about 5-30 P.M. tw police officers and a constable came to their residence and pressed them to go to the police station Lodhi Road and that respondent Sita Ram Mamgoi, S.H.O. had sent them to arrest them. The complainants were not aware of any offence against them. When they reached the aforcsaid police station, S.H.O. Sita Ram Mamgoi arrived there after sometime and started abusing and rebuking them and also gave them beatings as a result of which petitioner No. I Pyare Lal received injuries on his head, hand and leg and his left hand was also broken. Even though petitioner Pyare Lal requested respondent Sita Ram S.H.O. to get his medical examination done, the same was not got done by him.

(3) The learned magistrate vide his order dated 3rd June, 1985, after recording the pre-summoning evidence of the petitioners/complainants came to the conclusion that there was sufficient grounds to proceed against accused No. I Sita Ram Mamgoi alone under Sections 325/506 Indian Penal Code and consequently he ordered that he be summoned for 9th July, 1985. Summoning order was not passed against the remaining accused persons viz. the Commissioner of Police and the State for the reason that the counsel for the complainants had conceded that there were no allegations against them.

(4) Aggrieved by the order of the learned Magistrate, Sita Ram Mamgoi went up in revision before the learned Addl. Sessions Judge who after discussing the evidence and finding fault with the same, accepted the revision and quashed and set aside the order passed by the learned Magistrate and dismissed the complaint vide his order dated 23rd September, 1985.

(5) The complainants/petitioners have now put up this criminal revision in the High Court challenging the correctness of the order of the learned Addl. Sessions Judge and praying for the setting aside of the same.

(6) At the very outset it would be necessary and desirable to spell out revisionary powers of the Addl. Sessions Judge who passed the impugned order and for that purpose reference may be made the Supreme Court authority reported as Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, wherein the scope of Sections 401, 204 and 202 of the Code was discussed and settled No doubt this authority has dealt with revisionary powers of the High Court, the same shall be equally applicable to the revisionary powers of the Addl. Sessions Judge who passed the impugned order, inasmuch as under Section 399 of the Code the powers of revision vesting in a Sessions Judge are the same which are vested in the High Court under Sub-section (1) of Section 401 of the Code. So, this authority will also govern the powers of revision of the learned Addl. Sessions Judge who passed the impugned order. It would be desirable and even necessary to set out the relevant portion of this authority and the same is reproduced below:- "IT is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima fade case against him The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused These: considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204. Thus in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside; (1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no proudest person can ever reach a conclusion that there is sufficient ground for proceeding against the accused ; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and (4) Where the complaint suffers from fundamental legal defects. such as, want of sanction, or absence of a complaint by legally competent authority and the like. In the instant case the order of the Magistrate issuing process against the accused persons is a very well reasoned one which took into consideration the allegations in the complaint as also the evidence adduced in support of it. On a consideration of the evidence the Magistrate was satisfied that a prima facie case against the accused persons was made out and he accordingly issued process against them. The High Court went into the whole history of the case, examined the merits of the evidence, the contradictions and what is called the improbabilities and after a detailed discussion not only of the materials produced before the Magistrate but also of the documents which had been filed by the defense and which should not have been looked into at the stage when the matter was pending under Section 202, has held that the order of the Magistrate was illegal and was fit to be quashed. This was an entirely wrong approach."

(7) It is in the light of the aforesaid observations and the criteria that the impugned order passed by the learned Addl Sessions Judge as also the one passed by the learned Magistrate have to be seen. The learned Magistrate pointed out the entire pre-summoning evidence and came to the conclusion that the same was sufficient for proceeding against Sita Ram Mamgoi under Sections 325/506 Indian Penal Code and he consequently ordered his summoning The discretion vested in the Magistrate under Section 204(1) of the Code cannot be said to be hit in any manner by the criteria and the observations recorded in (supra), inasmuch as it cannot be said that from the complaint or the statements of the witnesses recorded in support thereof there is made out absolutely no case against the accused or the complaint does not disclose the essential ingredients of the offences which are alleged against him nor can it be said that the allegations made in the complaint are patently absurd and inherently improbable It also cannot be said that the discretion exercised by the Magistrate in issuing process against the accused was capricious or arbitrary having been based either on no evidence or on wholly irrelevant or inadmissible material nor does the complaint suffer from any fundamental legal defect. For appreciating all this it appears somewhat necessary to refer, though briefly, to the pre-summoning evidence which was also taken note of by the learned Magistrate as also the averments in the complaint. The occurrence is of 25th July, 1984 when both the complainants/petitioners were taken by two police officers and constable to Police Station Lodhi Road, New Delhi, and where Sita Ram Mamgoi then S.H.O in the said police Station started abusing and rebuking the complainants in a filthy manner set out in the complaint and which need not be repeated in the judgment. Thereafter complainant No. 2 Jagdish Kumar was taken to another room where he was beaten by Sita Ram who ordered the police officers to take off his trousers and he was made seated like that for full two hours whereas complainant No I Pyare Lal was beaten by Sita Ram Mamgoi with a danda and was given several blows mercilessly in the open space of the reporting room by him and Pyare Lal received multiple injuries on his hand, head and legs and his left hand was also broken and no offence whatever against them was disclosed by the police to the complainants petitioners.

(8) Both the complainants Pyare Lal and Jagdish Kumar were examined as Public Witness I and Public Witness 2 respectively and both of them talked about the aforesaid abusive language and the beatings with dandas having been administered to both of them. Satish Kumar Public Witness 3 is the younger son of Pyare Lal and on his return home he was told that his father Pyare Lal and elder brother Jagdish Kumar had been taken by some police officers and whereupon he went to Police Station Lodhi Colony where be saw his father Pyare Lal being beaten with a danda by S H.O. Sita Ram Mamgoi. He saw this incident of beating from the gate of the police station and the reporting room was visible from the gate of the police station He did not talk about beatings to his elder brother Jagdish Kumar probably for the reason that he could not see the beatings being given to him inside the room whereas beatings to Pyare Lal bad been given in the open space of the reporting room which he was able to see Hari Ram Pw 4 went on 25th July, 1984 at about 7 or 7:30 PM. to take delivery of bids stitched clothes from the shop of Pyare Lal complainant who is a tailor and was told that he had been taken away by the police Public Witness 5 Dr. Bal Kishan and P W. 6 Dr. Baleshwar Kumar Sharma are house surgeons in orthopaedic department of Safdarjung Hospital, New Delhi, and their statements show that it was on 28th July 1984 three days after the occurrence) that complainant Pyare Lal (whom they identified being present in court) came to Safdarjung Hospital and he was referred to X-ray department by Public Witness 5 Dr. Bal Kishan as he was complaining of pain in his left wrist and joint. Ext. Public Witness 5/A is the Opd card pertaining to Pyare Lal complainant which is in the handwriting of Dr Bal Kishan and bears his signatures as staled by the said doctor To a query by the learned Magistrate Dr. Baleshwar Kumar Sharma Public Witness 6 replied that he was able to recognize patient Pyare Lal for the reason that he continued to come to that hospital several limes. Public Witness 7 Dr. Y. Singh is the radiologist in Safdarjung Hospital, New Delhi, and according to his statement Pyare Lal whose Opd card was Ext Public Witness 5/A was X-rayed in the said hospital on 25th. August, 1984 vide No. 38452 contained in the patient card Ext. Public Witness 7/A. He examined the X-ray plate and gave his opinion on 10th October, 1984 vide Ext. Public Witness 7/8 showing mal united fracture on the left wrist and this report bears his signatures as stated by this doctor. According to the statement of this doctor this injury appear to be 2/3 months old. In the face of the opinion of this radiologist having been given on 10th October, 1984 about the aforesaid age of this fracture this injury appears to fit in with the date of occurrence i.e. 21st July, 1984 which is 2" months prior to 10th October, 1984.

(9) With all the aforesaid evidence which was uncross-examined being pre-summoning evidence, the Magistrate could be rightly of the view of there being sufficient evidence before him for the purpose of summoning Sita Ram Mamgoi accused/respondent and there was hardly anything palpably wrong with the same and in that view of the situation the approach of the learned Addl. Sessions Judge in reversing the order of the learned Magistrate, appears to be totally erroneous in the face of the criteria laid down in (supra).

(10) The contention of the learned counsel for the respondent accused was that in his statement petitioner Pyare Lal had not talked of his having gone to Safdarjung Hospital on 28th July, 1984 or about his X-ray and that be had manoeuvered evidence regarding his X-ray and fracture report which did not pertain to him but to some other person. This contention, on its face value, cannot be accepted even though the statement of Pyare Lal falls short of these matters, as the two doctors Public Witness 5 Dr. Bal Kishan and Pw 6 Dr. Baleshwar Kumar Sharma could not be wrong in identifying Pyare Lal petitioner being present in the court of the learned Magistrate. It looks unnecessary to dilate upon this point in the revision petition. The learned counsel for the accused respondent also contended that the alleged action complained of could be said to be in the discharge of the official duties of the accused and consequently without the requisite sanction of the Government this complaint could not be filed against him and he has also filed a photo copy of the notification No. F-10/77/78-HP-11 dated 7th April, 1980 issued under Sub-section (2) of Section 197 of the Code whereby the Lt. Governor of Delhi was pleased to direct that the provisions of Subsection (2) of Section 197 of the Code would apply to serving police officials of all ranks of Delhi Police Force charged with the maintenance of public order. Sub-sections (2) and (3) of Section 197 of the Code are reproduced below:- "XXXX Xx Xx Xx Xx (2^ No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the pro- visions of Sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted. Xx Xx Xx Xx XI"

(11) So, in view of the aforesaid provision of law and the notification, the protective provision of Section 197 of the Code has been extended to the police officials of all ranks of Delhi Police Force including the accused respondent, charged with the maintenance of the public order provided the alleged offence has been committed by him while acting or purporting to act in the discharge of his official duly in which case previous sanction of the Government is necessary before the court takes cognizance of that offence. It is thus not every offence committed by a public servant which shall require sanction for his prosecution, nor even every act done by him while he is actually engaged in the performance of the official duties It will be only when the act complained of is directly concerned with his official duties, so that, if questioned, it could be claimed to have been done by virtue of the office, that the sanction would be necessary ; and in that case, it would be so irrespective of whether it was, in fact, a proper discharge of the duties, because that would really a matter of defense on the merits, which will have to be investigated at the trial and cannot arise at the stage of the grant of sanction, which must precede the institution of the proceedings (Baijnath Gupta v. Slate of M P, ; Arul Swami v. State of Madras, ). It is only when it is either within this course of the official duty or any excess of it that the protection is claimable. The official position should not have been used as merely cloak to defend the act complained of. If the official merely uses his official position, protection of this section will not be available. There must be something in the nature of the act complained of that attaches to the official character of the person doing it. If the acts are inter-related to official duty, a few excises also will be covered by this section There must be reasonable nexus between the act complained of and the duty. In Ma'ajog Dubey v. H.C. Bhari, the Supreme Court discussed all the previous authorities and then laid down the result as follows : "THEREmust be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accuied could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."

(12) The offence complained of against the respondent accused who was a police officer at the relevant time does not appear to be protected under Section 197 of the Code, as the allegations are abusive language and beatings which were in no way connected with the discharge of his official duties. In Pukhraj v. State of Rajasthan. where the appellant, a postal clerk, was alleged to have been kicked in the abdomen and abused by a superior officer when the former met the latter to request for the cancellation of his transfer, the Supreme Court reversed the High Court decision and held that the acts attributed to the accused in the complaint filed by the clerk did not come within the scope of the official duty and no sanction under Section 197 of the code was needed which authority of the Supreme Court clearly covers the case in hand and there was no necessity of any sanction of the Government under Section 197 of the Code for filing the complaint by the petitioners against the accused respondent Sita Ram Mamgoi.

(13) The learned counsel for the petitioners/complainants has also pointed out certain errors into which the learned Addl. Sessions Judge fell in his impugned judgment. In para 5 of his judgment the learned Addl. Sessions Judge pointed out that admittedly an application for anticipatory bail was moved on 26th July 1984 but admittedly again in that application even no reference was made to any injuries alleged to have been suffered by the complainant or to any maltreatment or abuses and if in fact any injury had been suffered or any abuses were given or the complainant were maltreated in any manner whatsoever, it should have been possible to mention the same in the bail application and :hat men may lie but circumstances do not. It is pointed out by the learned counsel for the petitioners that no such anticipatory bail application was there before the learned Addl. Sessions Judge and that he has now filed the copies of the bail applications one filed by complaint Pyare Lal and the other by complaint Jagdish Kumar for the grant of anticipatory bail on 26th July 1984 They are Annexures B1 and B respectively Para 4 of Annexure B1, anticipatory bail application of Pyare Lal, emphatically asserts as follows :- "THEREAFTERhe was given several beatings and complete thrashing by police people with the result the applicant's left hand wrist was fractured. It is swollen and paining like anything but no medical aid was done in this case."

(14) In Annexure B, the anticipatory bail application of the other complainant Jagdish Kumar it is asserted in para No. 4 as follows :- "THATthe applicant was asked to put off his trousers and sit on the chair. Applicant was asked several questions and he was made to sit there for three hours... It will not be irrelevant to mention here that the applicant was tortured by the police officers of Police Station Lodhi Colony without any crime and reason."

(15) It was further asserted in both these applications that no offence on their part was told to them. Thus the observation in the impugned order of the learned Addl. Sessions Judge on this point is not correct. The learned counsel for the petitioners also pointed out from the impugned judgment of the learned Addl. Seisions Judge occurring towards the close of para No. 4 wherein it is observed that Public Witness 7 the radiologist has stated that on examination he found 2-3 months old injury on the person of Public Witness I Pyare Lal and in the fact of this statement also it cannot be said that the said 2-3 months old injury could have been sustained at the time when the petitioner was allegedly summoned to police station on 25th July, 1984. As already pointed out above the radiologist had given his opinion for the first time only on 10th October, 1984 on seeing the X-ray plate of petitioner Pyare Lal and was of the opinion that the injury of fracture was 2-3 months old The alleged injury of fracture was sustained on 25th July, 1984 and the time gap between these two dates is of 2" months and (r)o there i(r) nothing wrong with the complaint on this point and the above mentioned observation of the learned Addl. Sessions Judge in his impugned order is erroneous.

(16) It was also pointed out from the impugned order that it was wrongly" recorded therein that there was no reference by PW2 to any injury alleged to have been Suffered by him.- The perusal of the Statement of Public Witness 2 Jagdish Kumar complainant shows that after the respondent S.H.O. started beating his father with dandas, he (Jagdish Kumar) was taken to another room where the S.H.O. beat him with dandas and slaps So, the aforesaid observation of the learned Addl Sessions Judge in his impugned order is also not factually correct who appears to have gone wrong in his ultimate judgment relying upon the aforesaid discrepencies which in fact were not there.

(17) Thus the contentions of the learned counsel for the accused respondent are of no avail to him at this stage of the case when the prima facie case against the accused respondent is sufficiently made out about the existance of which the learned Magistrate appeared to be rightly satisfied.

(18) In view of the above discussion, this criminal revision succeeds and accepting the same the impugned order dated 23rd September. 1985 passed by the learned Addl. Sessions Judge is set aside and that of the learned Metropolitan Magistrate dated 3rd June, 1985 is restored.