Raj Kumar vs The State Of Nct Of Delhi & Ors.
2012 Latest Caselaw 816 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl. MC No.3576/2010

                                                 Date of Decision: 07.02.2012

Raj Kumar                                                   ......Petitioner
                            Through:      Mr. Prem Kumar, Mr. Surjeet Singh
                                          and Ms. Pooja Singh, Advocates

                                    Versus

The State of NCT of Delhi & Ors.                     ...... Respondents
                         Through:         Ms. Fizani Husain, APP for State
                                          Mr. Yogender Singh Chaudhary,
                                          Advocate for respondents 2 to 7 &
                                          11 to 13.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

1. This is a criminal petition under Section 482 Cr.P.C assailing the order dated 11.5.2010 passed by learned MM in criminal complaint case no. 721/08 and also order dated 3.8.2010 passed by learned ASJ in Crl. Revision Petition No.38/2010.

2. The petitioner had filed a complaint against 12 accused persons out of whom some were police personnel of Delhi and Pilibhit, UP. Along with the said complaint, an application under Section 156(3) Cr.PC was also filed by him. The allegations in brief were that he was impleaded in a false case vide FIR No.288 of 2009 under Section 420/406 IPC Police Station Puran Pur, District Pilibhit, U.P. by respondent no.2 Uma Shankar in collusion with

respondent no.8 Sanjay Aggarwal and in conspiracy with other respondents. On the midnight of 23.5.2009, he was picked up from his house by respondents no.6 to 12. He was dragged out of his house even though he was in his undergarments. His wife was forced to give Rs.7,000/- to them. He was brought to Police Station Subzi Mandi where he was beaten and extremely misbehaved by the police officials viz. Ramphal and Dalel Singh. He was put in the police vehicle and taken to Pilibhit, UP. He was not disclosed any reason as to why he was picked up in this manner. He was produced in the court in Pilibhit and from where he was sent to judicial custody and remained there till 30.7.2009. His medical examination was conducted in the jail hospital. It is alleged that later he learnt that respondent no.2 to 5 have misused their near relations respondent no.8 who was residing in Pilibhit and got a case registered against him.

3. Learned MM vide his order dated 11.5.2010 dismissed the complaint as also the application under Section 156(3) Cr.PC holding that the allegations against the accused persons (respondents herein) for having arrested the petitioner/ complainant in FIR No.288/2009 did not amount to offence as alleged in the complaint as the same were done under the colour of their duty. Consequently, he declined to take cognizance of the offence and dismissed the complaint as also the application under Section 156(3) Cr.PC.

4. The complainant preferred a criminal revision against the said order of learned MM which was also dismissed by learned ASJ vide the impugned order dated 3.8.2010 for the same reasons as given by learned MM.

5. The bone of contention of learned counsel for the petitioner is that the FIR that was lodged at Pilibhit, UP, was false and concocted at the instance of respondents no.2 to 5 and that in any case, the offences committed by police

personnel of dragging him from his house in the midnight hours and giving him severe beatings could not be said to be under colour of their official duties.

6. It is noted that the learned MM in the said order had also observed that there was nothing on record except the allegations in para 4 of the complaint that the complainant was dragged out of his house by the accused persons and accused no.8 and 9 had misbehaved and beat him and put him in a vehicle to take him to Pilibhit, U.P. Without going into the controversy as to whether the FIR 288 of 2009 registered at Police Station Pilibhit against the petitioner was false or concocted or was genuine, the fact remains that there are serious allegations against some of the respondents of having not only dragging the petitioner from his house at midnight hours when he was only in his undergarments, but some of them having given him severe beatings and caused him injuries. The petitioner was taken to Pilibhit and produced before the court and thereafter remanded to judicial custody. His MLC conducted in jail hospital substantiated his having sustained injuries.

7. The questions for consideration are; firstly, whether the giving of beatings to the petitioner by police officials can be said to be in the course of performance of their official duty even if the petitioner was required to be produced in a court in a case against him at Pilibhit, U.P and secondly, whether the Magistrate could have dismissed the complaint as also the application under Section 156(3) Cr.PC outrightly despite noting that the petitioner was dragged and was beaten severely by some of the respondents herein.

8. The answer to the first question has been given by catena of judgments. Reference can be made to some of them viz. Madan Mohan

Kesar v State & Anr.[2010(1) JCC 310]; Inspector Ran Singh v State of Delhi and another [Crl.MC 47 of 2000 decided on 30.01.2008 by this court]. The sum and substance of the dictum as laid down by these judgments is that even if the petitioner was wanted in a case against him and was to be detained and produced before the court, no law authorizes the police officials acting in discharge of their lawful duties to pick up and drag the petitioner in the late night hours and then give him severe beatings. Such acts of the police officials are barbaric and could not be said to be done in the discharge of their official duty. The allegations as made in the complaint that he was subjected to beatings, humiliation by any means cannot be said to be covered under the provisions of Section 140 of Delhi Police Act. Such acts of police personnel cannot find any protection under any law much less under Section 140 DP Act. That being so, the complaint as filed by the petitioner could not be said to be hit by Section 140 Cr.PC or even Section 197 Cr.PC.

9. The way the Magistrate has proceeded to dispose of the complaint and application under Section 156(3) Cr.PC vide his order dated 11.5.2010 will shock the judicial conscious and deteriorate he public faith in the working of the judicial system. On the one hand, the Magistrate has recorded the allegations of the petitioner having been dragged and given severe beatings, but has simultaneously proceeded to dismiss the complaint as also the application under Section 156(3) Cr.PC. The prime considerations for taking the cognizance have been entirely overlooked by the Magistrate. The judicial procedure has been completely given goby. If at all the Magistrate was not convinced for registration of an FIR under Section 156(3) Cr.PC, he ought to have conducted an enquiry and proceeded to record the statement of complainant and his witnesses. The complainant had also given detailed list of

witnesses as also the list of documents along with his complaint which would have been considered by the Magistrate before proceeding to dismiss the complaint and also the application. The learned ASJ also seems to have been swayed by the reasons given by learned MM and overlooked the allegations of the complaint as also the documents in its right perspective. The orders passed by learned MM as also learned ASJ has resulted in miscarriage of justice. This court in use of its inherent powers under Section 482 Cr.PC is constrained to set aside the orders of learned MM and also learned ASJ. The matter is remanded back to the court of learned CMM who shall assign the same to the Magistrate having jurisdiction and who shall decide the complaint and the application under Section 156(3) Cr.PC of the petitioner without influenced by any observation made by this Court hereinabove. The parties are directed to appear before learned CMM on 23.02.2012 at 2 pm.

10. The petition stands disposed of accordingly.

M.L. MEHTA (JUDGE) February 07, 2012 rd