Madhya Pradesh High Court
Sanjay Mahajan vs The State Of Madhya Pradesh on 20 November, 2023
Author: Vivek Rusia
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M.Cr.C. No.6092/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 20th OF NOVEMBER, 2023
MISC. CRIMINAL CASE No. 6092 of 2023
BETWEEN:-
SANJAY MAHAJAN S/O SHRI PANDIT RAO, AGED ABOUT 46 YEARS,
OCCUPATION: GOVT. SERVICE POLICE LINE BURAHANPUR,
DISTRICT BURAHANPUR (MADHYA PRADESH)
.....APPLICANT
(SHRI PIYUSH SHRIVASTAVA, LEARNED COUNSEL FOR THE
PETITIONER.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH POLICE C.I.D. INDORE DISTRICT INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI SUDHANSHU VYAS, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
This application/petition coming on for hearing this day, the
court passed the following: :
ORDER
1. The applicant has filed the present petition u/s. 482 of the Cr.P.C.
seeking quashment of FIR, charge-sheet, final report, and the
proceedings of Sessions Trial No.144/2021 registered u/s. 306/34 of the
IPC.
2. The facts of the case, in short, are as under:
2.1 An FIR No. 115/2010 was registered against deceased Ashish @
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M.Cr.C. No.6092/2023
Guddu Sharma u/s. 294, 327, 506 of the IPC in Police Station Ravji
Bazar, Indore. The investigation was started by the Head Constable -
Surendra Shukla. Late Ashish was arrested by Head Constable Srendra
Shukla, Mohd. Rashid, Manoj Pandey, Raghvendra Singh, Zoopsingh
on 15.5.2010 at 16.35 hours in the premises of Gandhi Hall, Indore. He
was brought to the Police Station at 17.15 hours. The present petition
who was posted as 'Santri' (Constable) found the deceased Ashish
hanging from blue jeans pant. He immediately informed the Head
Constable (Moharrir). They took him to the M.Y. Hospital where
Ashish @ Guddu was declared dead at 8.20 am. The 'Merg' was
registered at No. 12/2010 u/s. 174 of the Cr.P.C.
2.2 In the My Hospital the wife of the deceased noticed injuries on
various parts of the body and suspected custodial death of her husband.
She made a complaint that her husband was beaten up in police
custody and illegal gratification was demanded by Surendra Shukla and
other police personnel for the release of her husband. The judicial
inquiry was ordered and commenced by Mr. Alok Pratap Singh,
Judicial Magistrate First Class, Indore , who submitted an enquiry
report dated 7.5.2012 that Surendra Kumar Shukla and others
committed atrocity with Ashish @ Guddi, therefore, he committed
suicide and thus, they have committed an offence u/s. 306 of the IPC.
On the basis of the said report on 1.7.2013 FIR at Crime No. 01/2013
was registered u/s. 306/34 of the IPC against six police personnel viz.
Constable Rajendra Singh; Constable Bhupendra; Constable
Ramprakash Pal, Head Constable Surendra Kumar Shukla; Sub
Inspector Arvind Kumre; and Constable Sanjay Mahajan, the present
applicant and the investigation was started. The statements of Rajni
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M.Cr.C. No.6092/2023
Sharma, the wife of the deceased Ashish @ Gudd and her brothers;
independent witnesses were recorded u/s. 161 of the Cr.P.C. and their
statements u/s. 164 of the Cr.P.C. were recorded before the JMFC on
13.4.2015. After completing the investigation, finally the charge-sheet
was filed on 13.7.2020 u/s. 306/34 of the IPC against six police
personnel including the present applicant. As per the charge-sheet the
allegations against the present applicant are as under :
Ø- vkjksih dk nLrkosth lk{; ekSf[kd lk{; Lkk{; dk lkj ftlesa vkjksih }
uke@in vkjksih dk vijk/k kjk ?kfVr
curk gS /kkjk dk
vijk/k
6 vkj- 2302 1- U;kf;d tkap 1- lk{kh ,l- 1- U;kf;d tkap vuqlkj 306]34
lat; egktu fjiksVZ ds- nknw dk lqjsUnzdqekj 'kqDyk ij Hkknfo
firk iafMr jko 2- ih-,e- fjiksVZ c;ku e`rd vkjksih vk'kh"k ls
egktu fuoklh 3- tIrh i=d 2- lk{kh ekjihV dj
ulsZl DokVZj 4- 'ko jtuh ifr ekufld ,oa 'kkjhfjd
usg: vLirky iapk;rukek vkf'k"k dk izrkM+uk ds dkj.k e`rd
ftyk cqjgkuiqj 5- fM;wVh /kkjk 161 ,oa vkjksih vk'kh"k }kjk
rRdkyhu jftLVj 164 n-iz-l- vkRegR;k dj ysuk
iqfyl deZpkjh 6- esfMdksyhxy vUrxZr ik;k x;kA
Fkkuk jkoth laLFkku Hkksiky dFku 2- ih,e fjiksVZ ds
cktkj bUnkSj dk ts,e,Qlh 3- lk{kh vuqlkj e`rd vkjksih
Jh vkyksd fjrs'k firk vk'kh"k ds 'kjhj ij
izrkiflag dks vkseizdk'k pksaVs gksuk izekf.kr gksrk
nh xbZ fyf[kr lankSuh dk gSA
fjiksVZ /kkjk 161 ,oa 3- esfMdksyhxy laLFku
7- Mk- ,l- ds- 164 n-iz-l- dk ts,e,Qlh vkyksd
nknw nh xbZ vUrxZr izrkiflag dks nh xbZ
fyf[kr fjiksVZ dFku fyf[kr fjiksVZ ftlds
8- dFku 4- lk{kh vuqlkj e`rd vk'kh"k
lrh'k firk dh e`R;q Qkalh ls ne ?
vkseizdk'k kqVus] Qkalh ftUl ds
lankSuh dk isaV ls yxkus ls gksuk
161 ,oa 164 crk;k gS ,oa MkW- ,l-
n-iz-l- ds nknw }kjk nh xbZ
vUrxZr fyf[kr fjiksVZ ftlds
dFku vuqlkj e`rd vk'kh"k
5- lk{kh dh e`R;q ftUl ds isaV
ljyk 'kekZ ls vkuk laHko gksuk
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M.Cr.C. No.6092/2023
dk dFku crk;k gSA
6- Mk- Jherh 4- eftLVsªV }kjk cuk;k
bfUnjk ukjax x;k e`rd vk'kh"k dk
dk dFku 'ko iapk;rukek tks fd
vkjksih vk'kh"k ds 'kjhj
ij vkbZ fofHkUu e`R;q
iwoZ pkasVksa dks n'kkZrk gSA
rFkk ;g fl) djrk gS
fd e`rd vkjksih vk'kh"k
ds lkFk ekjihV dj
izrkM+uk nh xbZ FkhA
ftl izrkM+uk ls
nq"iszfjr gksdj
rkRdkfyd :i ls e`rd
vk'kh"k }kjk avkRegR;k
dh xbZA
5- iz-vkj- lqjUnz
'kqDyk }kjk vkjksih
e`rd vk'kh"k dks vijk/k
Øekad 115@10 /kkjk
327] 294]506 Hkknfo esa
fxj¶rkj dj gokykr esa
can fd;k Fkk tks fd
vkj{kd lat; egktu
dh larjh fM;wVh jgrs
fnukad 15-05-2010 ds
le; 18-00 cts ls 22-
00 cts rd ,oa ckn esa
fn- 16-05-10 dks 06-00
cts ls 10-00 cts rd
mldh larjh igjk
fuxjkuh esa dh xbZ
ykijokgh ds dkj.k
e`rd dks vkRegR;k
djus dk ekSdk feyk
vksj laHkor% le; ij
mipkj Hkh ugh fey
ldkA
11- vkjksih iz-vkj-
lqjsUnz 'kqDyk }kjk
U;kf;d tkap dFku esa
e`rd vk'kh"k vijk/k
115@10 /kkjk
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M.Cr.C. No.6092/2023
327]294]506 Hkknfo esa
e"k:dk tIrh ds fy,
iwNrkN djrs le;
mifLFkr jguk crk;k
gSA ftldk vFkZ
U;k;ky; }kjk fgjklr
esa ekjihV ls fy;k x;k
gSA rFkk vkjksih lat;
egktu us e`rd vk'kh"k
dh iqfyl vfHkj{kk dh
vof/k fnukad 15-05-
2010 ls le; 17-00
cts ls fnukad 16-05-10
ds 18-00 cts ls jkf=
22-00 cts rd ckn esa
fn- 16-05-10 dks lw; 6-
00 cts ls 10-00 cts
rd larjh igjk fM;wVh
esa ykijokgh dh ftlds
dkj.k e`rd dks le;
ls bZykt ugh feyk ,oa
vkRegR;k djus dk
ekSdk feykA bl laca/k
esa U;kf;d tkap dh Vhi
voyksadukFkZ gSA
As per the aforesaid report, the applicant was found on duty in the
Police Station on 15.5.2010 from 18.00 to 22.00 hours and on
16.5.2010 from 6.00 to 10.00 hours and he was negligent in his duties
as he could not notice that the deceased was committing suicide. As per
the Postmortem report the anti-mortem injuries were found on the
body of the deceased which confirmed that he was subjected to assault
in the police custody.
2.3 After filing the charge-sheet, learned the trial was committed to
the Court of Sessions. Learned Additional Sessions Judge has framed
the charge on 6.12.2021. The charge framed against the applicant is
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M.Cr.C. No.6092/2023
reproduced below :
IkzFke vkius fnukad 15-05-2010 dks 16-35 cts ls 16-05-2010 dks lqcg yxHkx
07-35 cts ds e/; vkj{kh dsanz jkoth cktkj] bankSj dh gokykr esa e`rd
vk'kh"k mQZ xqM~Mq dks 'kkjhfjd o ekufld :i ls izrkfM+r dj mls
vkRegR;k djus ds fy;s nq"iszfjr fd;k] ftlds dkj.k e`rd us fnukad 16-05-
2010 dks lqcg yxHkx 07-35 cts vkj{kh dsUnz jkoth cktkj dh gokykr esa
Qkalh yxkdj vkRegR;k dhA bl izdkj vkius ,slk vijk/k fd;k tks
Hkkjrh; naM lafgrk dh /kkjk&306 ds rgr naMuh; gksdj bl U;k;ky; ds
laKku esa gSA
Hence the accused/ applicant has filed the present petition
before this Court under section 482 of Cr.P.C. challenging the FIR,
charge-sheet and all other further proceedings. The applicant had a
remedy to file a criminal revision against the charge framed on
6.12.2021 but instead of resorting to the said remedy, the present
petition has been filed.
3. Learned counsel for the applicant submits that the applicant has
not been named in the complaint, FIR and in statement u/s. 161 and
164 of the Cr.P.C. of the complainant and witnesses. He has wrongly
been added as co-accused in the Final Report (Challan) merely
because he was on duty as Principal Secretary on the date of death . He
has already been punished with the stoppage of one increment in the
departmental inquiry for negligence in duty. Therefore, in the absence
of any mens rea the charge u/s. 306/34 of the IPC is not made out
against the applicant.
4. Learned counsel further submits that no prior sanction has been
taken u/s. 197 of the Cr.P.C. Therefore, the applicant being a Govt.
servant cannot be prosecuted in the absence of sanction. In support of
his contention he has placed reliance on the judgment of the apex Court
in the case of D. Devaraja V/s. Owais Sabeer Hussain : (2020) 7 SCC
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M.Cr.C. No.6092/2023
695.
5. Learned counsel for the applicant further submits that the scope
of magisterial inquiry is limited to ascertain the cause of death within
the limited scope of Section 174 of the Cr.P.C. but the learned
Magistrate while conducting the inquiry travelled beyond the
jurisdiction by suggesting the culpability, complicity u/s. 306 of the
I.P.C. of the accused. In support of his contention, he has placed
reliance over the judgment of the apex Court in the case of Radha
Mohan Singh @ Lal Saheb V/s. Kaushal Kishore Singh : AIR 2006
SC 951. He, therefore, prays for quashment of FIR, charge-sheet and
further proceedings in the criminal case.
6. Per contra Learned Government Advocate for the
respondents/State opposes the aforesaid prayer by submitting that the
applicant and other police personnel badly beaten the deceased in
police custody, therefore, he committed suicide. Admittedly the
applicant was also on the duty in Police Station at that time hence the
charge of abatement under section 306 read with 34 I.P.C. has rightly
been framed against him and others. Learned Government Advocate
further submits that apart from these six accused, the complainant has
also filed a private complaint against the remaining police officers. So
far as objection of prior sanction before prosecution u/s. 197 of the
Cr.P.C. is concerned, the Government Advocate submits that this issue
can be considered and decided by the trial Court along with other
issues considering the material available on record.
Appreciations & Conclusion
7. So far as the necessity of prior sanction as required under section
197 Cr.P.C. before prosecution of a Government servant is concerned,
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M.Cr.C. No.6092/2023
the apex Court in the case of D. Devaraja (supra) in Para 70 to 73 has
held that to decide whether the sanction is necessary, the test is,
whether the act is totally unconnected with the official duty or whether
there is reasonable connection with the official duty. In the case of an
act of a police man or any other public servant unconnected with the
official duty, there can be no question of sanction. However, if the act
alleged against the police man is reasonably connected with the
discharge of his official duty, it does not matter if the police man has
exceeded the scope of his powers and acted beyond the four corners of
the law. If the act alleged in a complaint purported to be filed against
the policeman is reasonably connected to discharge of some official
duty, cognizance thereof cannot be taken unless requisite sanction of
the appropriate Government is obtained u/s. 197 of the Cr.P.C. In order
to examine as to whether the alleged act of the applicant was connected
to the discharge of some official duty, the evidence collected by the
prosecution during the trial is required to be considered. Therefore, the
issue of sanction can be decided with other issues during the trial.
8. As argued by Shri Shrivastava, learned counsel for the applicant,
the applicant has already been punished with the stoppage of one
increment in a departmental inquiry for negligence in his duties.
Therefore, there is no dispute that at the time of custodial death of the
deceased, the applicant was on duty in the Police Station. Anti-mortem
injuries were found on various parts of the body of the deceased. The
deceased is said to have committed suicide inside the Police Station
where the applicant was on duty. Therefore, there is a charge u/s. 306
read with Section 34 of I.P.C. against him. If the deceased was beaten
up inside the Police Station and the applicant remained a silent
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M.Cr.C. No.6092/2023
spectator being a policeman then he is said to have shared the common
intention with other accused policemen Hence, at this stage, against
only one of the accused persons i.e. applicant the proceedings of
Session Trial cannot be quashed on a technical ground i.e. for want of
prior sanction u/s. 197 of the Cr.P.C. The death of the deceased took
place in the year 2010. The CID took ten years to complete and now
the charge-sheet has been filed in the year 2020. Therefore, at this
stage, by conducting a mini-trial, the applicant cannot be acquitted
from the charges. In view of the above, no case for quashment of the
proceedings is made out.
9. Accordingly, this petition filed u/s. 482 of the Cr.P.C. is
dismissed.
( VIVEK RUSIA )
JUDGE
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.11.23 10:15:54 +05'30'
