Madhya Pradesh High Court
Mukesh Khamparia vs Anjali Agrawal on 1 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C.No.45626/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 1st OF APRIL, 2024
MISC. CRIMINAL CASE No. 45626 of 2022
BETWEEN:-
MUKESH KHAMPARIA S/O LATE DR.
D.P. KHAMPARIA, AGED ABOUT 58
YEARS, OCCUPATION: INSPECTOR
POLICE STATION HARRAI DISTRICT
CHHINDWARA M.P. (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI UMAKANT SHARMA - SENIOR ADVOCATE WITH SHRI
DEEPESH KOSHTA - ADVOCATE )
AND
1. ANJALI AGRAWAL W/O SHRI
VISHNU PRASAD AGRAWAL, AGED
ABOUT 43 YEARS, R/O WARD NO.
13 ANJANPUR ROAD HARRAI
POLICE STATION AND TAHSIL
HARRAI DISTRICT CHHINDWARA
(MADHYA PRADESH)
2. VISHNU PRASAD AGRAWAL S/O
SHRI RAM PRASAD AGRAWAL,
AGED ABOUT 48 YEARS, R/O
WARD NO. 13 ANJANPUR ROAD
HARRAI POLICE STATION AND
TAHSIL HARRAI DISTRICT
CHHINDWARA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI RISHIB SAHU - ADVOCATE)
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
This application under section 482 of CrPC has been filed
seeking the following relief :-
"It is therefore, prayed that this Hon'ble
Court may kindly be pleased to quash the order
dated 7/2/2020 and order dated 25/6/2022 passed by
Judicial Magistrate First Class Harrai District
Chhindwara, and further be pleased to quash the
entire proceeding pending in Case No.RCT/9/2020
against the applicants, in the interest of justice."
2. It is submitted by counsel for applicant that on a complaint
filed by the respondents, the trial court has taken cognizance of
offence under sections 323/34, 294, 506 and 427 of IPC. It is
submitted by counsel for applicant that according to the
complainants/respondents, on 12.9.2019 at about 11:30 - 12:00 at
night, when the complainants were making preparation for going to
bed, they heard the noise of beating front and rear doors of the house.
When the complainant no.1 opened the front door then she found
that the applicant along with Constable Harsh and 4 to 5 police
personnel were standing and they forcibly entered inside the house.
When it was inquired by the complainants as to why they have come,
then the applicant, co-accused Harsh Patel and the other police
personnel accompanying them, started abusing them by using filthy
language in the name of mother and sister and also started searching
out the fridge, godrej almirah, containers etc. Even the clothes as
well as the food-grains kept in the house of complainants were
scattered on the ground. As the complainant/respondent no.1 got
afraid of the activities of the applicant, therefore, she started
videographing the incident. As a result, the applicant started abusing
her filthily and also tried to snatch her mobile and during that scuffle
the applicant also torn the clothes of the complainant no.1 and by
alleging that she is fond of making videographs, started dragging the
respondent no.2 outside the house. The applicant also forcibly
snatched the mobile from the hand of the respondent no.1 and also
directed co-accused Harsh Patel and other constables to beat the
respondent no.2 badly and also challenged the respondent no.1 to do
further photography. They also started assaulting the complainant
no.2 by fists and blows and forcibly took away the complainant no.2
along with them on their motorcycle and the mobile of the
complainant no.1 was also taken away by them. On account of the
damage caused to the front and rear doors as well as damage to the
almirahs and spreading over of the food-grains, the complainants
have suffered a loss of Rs.40,000/-. The abusive language used by
the applicant and other co-accused persons was to the annoyance of
the complainants and they have also violated the privacy of the
complainants. The applicant has also torn the clothes of the
respondent no.1 and also used criminal force in order to outrage her
modesty. The respondent no.1 made a complaint to the
Superintendent of Police, Chhindwara on 17.9.2019 but the
acknowledgment was not deliberately given by the Superintendent of
Police. On 12.9.2019 from 12:00 to 4:00 hours in the night, the
respondent no.2 was kept in illegal detention in the police station.
Even the mobile phone of the respondent no.2 was also not returned
and later on after deleting the videographs, the mobile was returned.
Since the respondent no.1 was not getting help from anybody,
therefore, she made a complaint on CM Helpline no.181 and only
after her complaint was made, the respondent no.2 was released from
police station at 4:00 a.m. with a threat that in case if they make a
complaint then they will be falsely implicated. The complainants
have also made complaints to the State Women Rights Commission
and IG, Jabalpur etc.
3. It is submitted by counsel for applicant that the applicant had
filed an application under section 245 of CrPC on the ground that
since the alleged act was committed by the applicant in discharge of
his official duty, therefore, sanction under section 197 of CrPC is
required. It is further submitted that the complainants have not filed
the copies of the complaints made by them to the higher authorities.
4. To buttress his contention, the counsel for applicant has also
relied upon a judgment passed by the Supreme Court in the case of
D.Devaraja Vs. Owais Sabeer Hussain, reported in AIR 2020 SC
3292.
5. Per contra, the application is vehemently opposed by the
counsel for respondents. It is submitted that it is incorrect to say that
the copies of the complaint made by the complainants to the higher
officers were not produced before the trial court. Under the facts and
circumstances of the case, it is incorrect to say that the sanction
under section 197 of CrPC was required.
6. Considered the submissions made by counsel for the parties.
7. Section 197 of CrPC reads as under :-
"197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or
Magistrate or a public servant not removable from his
office save by or with the sanction of the Government
is accused of any offence alleged to have been
committed by him while acting or purporting to act in
the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous
sanction 1[save as otherwise provided in the Lokpal
and Lokayuktas Act, 2013 (1 of 2014)]---
(a) in the case of a person who is employed or, as
the case may be, was at the time of commission
of the alleged offence employed, in connection
with the affairs of the Union, of the Central
Government;
(b) in the case of a person who is employed or, as
the case may be, was at the time of commission
of the alleged offence employed, in connection
with the affairs of a State, of the State
Government:
[Provided that where the alleged offence was
committed by a person referred to in clause (b) during
the period while a Proclamation issued under
clause (1) of article 356 of the Constitution was in
force in a State, clause (b) will apply as if for the
expression "State Government" occurring therein, the
expression "Central Government" were substituted.]
(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 provisions 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.
[(3A) Notwithstanding anything contained in
sub-section (3), no court shall take cognizance of
any offence, alleged to have been committed by
any member of the Forces charged with the
maintenance of public order in a State while
acting or purporting to act in the discharge of his
official duty during the period while a
Proclamation issued under clause (1) of article
356 of the Constitution was in force therein,
except with the previous sanction of the Central
Government.
(3B) Notwithstanding anything to the contrary
contained in this Code or any other law, it is
hereby declared that any sanction accorded by the
State Government or any cognizance taken by a
court upon such sanction, during the period
commencing on the 20th day of August, 1991 and
ending with the date immediately preceding the
date on which the Code of Criminal Procedure
(Amendment) Act, 1991 (43 of 1991), receives
the assent of the President, with respect to an
offence alleged to have been committed during
the period while a Proclamation issued under
clause (1) of article 356 of the Constitution was
in force in the State, shall be invalid and it shall
be competent for the Central Government in such
matter to accord sanction and for the court to take
cognizance thereon.]
(4) The Central Government or the State Government,
as the case may be, may determine the person by
whom, the manner in which, and the offence or
offences for which, the prosecution of such Judge,
Magistrate or public servant is to be conducted, and
may specify the Court before which the trial is to be
held."
8. Thus, where the accused has committed any offence while
acting or purporting to act in discharge of official duty then sanction
under section 197 of CrPC would be required.
9. The only question for consideration is as to whether the act
alleged against the accused was committed while acting or
purporting to act in discharge of the official duty or not?
10. In application filed under section 245 of CrPC, it is alleged by
the applicant that he was on a regular patrolling and he found that the
respondent no.2 was gambling in front of his house and, therefore,
the said fact is also mentioned in the Rojnamcha Sanha.
11. Accordingly, the counsel for applicant was directed to point
out as to whether any criminal offence was registered against the
respondent no.2 or not?
12. It is submitted by counsel for applicant that he is not in
possession of any such document to make a statement as to whether
any criminal offence was registered or not and prayed for time to
produce the same.
13. So far as the prayer for adjournment is concerned, the same
does not appear to be bonafide. The scope of interference under
section 482 of CrPC is well known. The requirement of sanction
under section 197 of CrPC is also well known. Once the applicant
himself had filed an application under section 245(2) of CrPC merely
on the ground that since the respondent no.2 was gambling in front
of his house, therefore, he was brought to the police station and that
fact was also mentioned in the Rojnamcha Sanha. However, the said
application is completely silent as to whether any offence was
registered against the respondent no.2 or not? Furthermore, the
application is also silent as to what happened to other persons, who
were gambling along with complainant no.2.
14. This Court in exercise of power under section 482 of CrPC is
judging the correctness of order passed by the trial court. There was
no hitch for the applicant to claim that an offence under the Public
Gambling Act was registered against the respondent no.2 but once
the applicant has maintained a beautiful silence with that regard then
for the purposes of deciding the question as to whether sanction
under section 197 of CrPC is required or not, this Court is of
considered opinion that in fact no offence was registered against the
respondent no.2 under the Public Gambling Act. It is also not the
case of applicant that he had gone to the house of respondent no.2 to
execute any warrant of arrest. Thus, it is clear that the applicant had
gone to the house of the respondents without any rhyme or reason.
Merely because the applicant was holding the post of Town
Inspector would not give him a right to carry out a search of a
person, who is not a criminal and against whom, no search warrant
has been issued.
15. So far as the facts of the case of D.Devaraja (supra) is
concerned, the allegations made against the police personnel was
with regard to atrocities while the complainant was in police
custody. Here, this Court has already come to a conclusion that
without any rhyme or reason, the applicant is alleged to have forcibly
entered inside the house of the complainants. The forcible entry in
the house of the complainants is also corroborated by the fact that the
applicant had also claimed that the respondent no.2 was brought to
the police station. If respondent no.2 had committed any offence then
why no such offence was registered. Therefore, it is clear that not
only the applicant forcibly entered inside the house of respondent
no.2 but also illegally brought the respondent no.2 to the police
station.
16. The Supreme Court in the case of Dr.S.M.Mansoori (Dead)
through Legal Representatives Vs. Surekha Parmar and others,
reported in (2023) 6 SCC 156 has held that where the police
officials without any authority along with other police personnel
entered the house of the appellant early in the morning and
committed the offences alleged against them then it cannot be held
that the acts allegedly done by the respondents were committed by
them while acting or purporting to act in discharge of their official
duty. Accordingly, it was held that at the initial stage there was no
necessity of sanction under section 197 of CrPC because the final
view on this issue can be taken only after the evidence is led during
the trial and accordingly the impugned order by which the
proceedings were quashed by holding that sanction under section
197 of CrPC was mandatory, was set aside. In this case also for the
purposes of the requirement of sanction under section 197 of CrPC at
this stage, this Court has already come to a conclusion that the
allegations made against the applicant do not require any sanction
under section 197 of CrPC. However, it is directed that the trial court
shall take up this issue at the time of final hearing of the complaint
and on the basis of evidence on record, which would come on record,
shall decide as to whether the sanction under section 197 of CrPC is
required or not?
17. It is made clear that the trial court shall not get prejudiced or
influenced by any of the observation made by this Court and shall
decide the aforesaid question strictly in accordance with law based
on the documents, which may be relied upon by the parties.
18. Since there are serious allegations regarding misuse of police
powers by the applicant, therefore, it is directed that the trial court
must conclude the trial within a period of six months. If required, the
trial court is expected to take up the case on day to day basis and
shall not adjourn the case for more than 4 days. If any of the accused
do not appear before the trial court, then it shall be the personal duty
of the Superintendent of Police, Chhindwara to immediately execute
the arrest warrant because the accused are the police personnel and
their location and whereabouts are known to the police department.
In case, if the Superintendent of Police, Chhindwara fails to execute
the arrest warrant, then the trial court shall immediately send a PUD
to this Court for information and further action.
19. With aforesaid observations, the application fails and is hereby
dismissed.
(G.S.AHLUWALIA)
JUDGE
TG/-
TRUPTI GUNJAL
2024.04.03 16:05:31
+05'30'
