Balaram vs State Of Raj And Anr
2021 Latest Caselaw 5894 Raj/2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 939/2018

Balaram S/o Shri Bhagiram, The Then Sho, Police Station Ashok Nagar, Police Station (South) Jaipur

---Accused-Petitioner Versus

1. State Of Rajasthan Through PP.

---Non-Petitioner

2. Sitaram Agarwal S/o Late Shri Dhanna Lal, aged about 68 years, R/o B-4-B, Ambawadi, Jaipur.

--Complainant-Non-Petitioner

For Petitioner(s) : Mr. Arvind Kumar Gupta with Mr. Aniket Sharma & Mr. Tanay Jain For Complainant(s) : Mr. Surkesh Lakhwani and Mr. Ravindra Singh Shekhawat For State : Mr. F.R. Meena, PP

HON'BLE MR. JUSTICE PANKAJ BHANDARI

Order

26/10/2021

1. Petitioner has preferred this Criminal Miscellaneous Petition

aggrieved by order dated 20.04.2017 passed by Additional Civil

Judge & Metropolitan Magistrate No.11, Jaipur Metropolitan, vide

which cognizance was taken against the petitioner under Section

166-A of I.P.C. and against the order dated 06.01.2018 passed by

Special Judge, Prevention of Sati Cases, Jaipur (Rajasthan),

whereby revision petition filed by the accused-petitioner was

rejected.

2. It is contended by counsel for the petitioner that a complaint

was filed by the Complainant-non-Petitioner No.2 before the

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Judicial Magistrate alleging therein that complainant is more than

65 years of age, still the accused-petitioner summoned him to

come to the Police Station for investigation.

3. It is also contended that the Court has erred in taking

cognizance under Section 166-A of I.P.C., as powers exercised by

the petitioner could not be covered under Section 160 Cr.P.C. It is

contended that at the time of taking cognizance, the provision of

Section 160 Cr.P.C. was not read by the Officer and there is no

mention of the same in the order. It is also contended that the

revisional Court also did not deal with the provision of Section 160

Cr.P.C. and proviso of Section 160 Cr.P.C. would be applicable only

when the investigation is being done under Chapter XII of the

Code. It is further contended that taking cognizance against the

petitioner is abuse of the process of Court, as petitioner has not

disobeyed any direction under the law.

4. Counsel for the petitioner has placed reliance on

"Rameshbhai Pandurao Hedau vs. State of Gujarat, (2010)

4 Supreme Court Cases 185". Counsel for the petitioner has

also placed reliance on "Padma Sundara Rao (Dead) & Ors. vs.

State of T.N. & Ors. (2002) 3 Supreme Court Cases 533."

5. Counsel for the complainant has vehemently opposed the

Criminal Miscellaneous Petition. It is contended that petitioner has

already availed the remedy of revision and second revision is

barred under the law and petition under Section 482 Cr.P.C.

cannot be entertained. It is also contended that the proviso to

Section 160 Cr.P.C. is applied to all the investigations done by the

Police and the same cannot be read only with regard to

investigations done after lodging of an F.I.R.

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6. Counsel for the complainant has also placed reliance on the

same judgment "Rameshbhai Pandurao Hedau vs. State of

Gujarat" (supra).

7. It is contended by counsel for the complainant that petitioner

had knowledge that complainant was aged more than 65 years,

still he disobeyed the directions under the law.

8. Counsel for the complainant has drawn my attention towards

Section 166(A)(a) of I.P.C. which reads as under:-

"Whoever, being a public servant-

(a)knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other, or."

9. It is argued that case squarely falls under Section 166(A)(a)

of I.P.C. and Court has not committed any error in taking

cognizance against the petitioner who was the SHO at the relevant

time.

10. I have considered the contentions and have perused the

provisions of Criminal Procedure Code.

11. Section 160 Cr.P.C. reads as under:-

"(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person [under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person] shall be required to attend at any place other than the place in which such male person or woman resides.

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                  (2)    The State Government may, by

rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence."

12. Section 160 Cr.P.C. authorizes the Police Officer making an

investigation under Chapter XII, to make an order in writing,

requiring attendance before himself of any person and the person

is required to attend within the limits of his own or any adjoining

station, however, he cannot summon an aged person above sixty-

five years or a child or a woman or mentally or physically disabled

person. The opening words of Section 160 Cr.P.C. specifically

refers to investigation being made under this Chapter (this

Chapter here would mean "Chapter XII") of the Code of Criminal

Procedure. Contention of counsel for the complainant that Section

160 Cr.P.C. would cover in its ambit, all investigations done by the

Police, the letter of law and the spirit of law is to be seen, and the

intention of the legislature is that person above the age of sixty-

five years should not be harassed and called to the Police Station

for investigation, does not have any force in view of the clear

wording of the statute.

13. In "Padma Sundara Rao (Dead) & Ors. vs. State of T.N. &

Ors." Apex Court held that while interpreting the provisions,

Courts only interpret and cannot legislate it. If a provision of law is

misused and subjected to the abuse of process of the law, it is for

the legislature to amend, modify or repeal it, if deemed necessary.

The intention of the legislature on bare reading of Section 160

Cr.P.C. is very clear and any investigation done by the Police

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Officer under Chapter XII is only covered by it. Proviso to Section

160 Cr.P.C. cannot be applied to Section 202 Cr.P.C., as had it

been the intention of the legislature to make this provision

applicable to all the investigations, then the use of words 'under

this Chapter' could have been avoided.

14. In "Rameshbhai Pandurao Hedau vs. State of Gujarat" it was

held that the power to direct an investigation to Police Authorities

is available to the Magistrate both under Sections 156(3) &

Section 202 of Cr.P.C. The only difference pointed out by the Apex

Court was the stage at which the power may be invoked i.e. power

to investigate under Section 156(3) Cr.P.C. is directed at the pre-

cognizance stage, while the power to direct a similar investigation

under Section 202 Cr.P.C. is at the post-cognizance stage. In the

complaint filed by the complainant, the Magistrate had taken

cognizance after recording the statement of the complainant and

had sent the matter for investigation to the Police Authorities, so

the same would come within the ambit of Section 202 Cr.P.C. that

is post-cognizance stage.

15. Though the power under Section 482 Cr.P.C. can be

exercised only in rarest of rare cases, the present is clearly the

case where Police Officer is being prosecuted for committing an

offence under Section 166-A of I.P.C., which offence actually has

not been committed, since he has not disobeyed any direction

under the law. The continuation of the proceedings would

tantamount to abuse of process of the law, hence, I deem it

proper to allow the Criminal Miscellaneous Petition.

16 Criminal Miscellaneous Petition is accordingly allowed.

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17. Orders passed by the Courts below are quashed and set-

aside and the proceedings pending before the Courts below are

also quashed and set-aside. Stay application stands disposed.

(PANKAJ BHANDARI),J

AMIT KUMAR /15

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