Bhanwar Lal Patel vs State Of Rajasthan
2022 Latest Caselaw 10181 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 4287/2018

Bhanwar Lal Patel S/o Sh. Jogaram, Aged About 55 Years, B/c Patel , Ajeet , Tehsil Samdari ,distt. Barmer

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Dhirendra Singh, Sr. Adv. Assisted by Mr. Jagdish Singh For Respondent(s) : Mr. Abhisehk Purohit, A.G.A.

Mr. Tanay Jain

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

04/08/2022

1. This Criminal Misc. Petition under Section 482 Cr.P.C. has

been preferred claiming the following reliefs:-

"It is, therefore, most humbly and respectfully prayed that the Misc. Petition may kindly be allowed and the Order dated 31.10.2018 passed by Shri Devendra Kacchawaha, District & Sessions Judge, Balotra in Criminal Reviion No. 34/2018 against the Order dated 16.02.2012 passed by Shri Naveen Meena, Judicial Magistrate, Sivana in Cr. Original Case No. 34/2012 State of Raj. Vs. Bhanwarlal Patel by which cognizance u/s 452, 323, 341 was taken against the petitioner, may kindly be quashed and set aside."

2. Mr. Dhirendra Singh, learned Senior Counsel assisted by

Mr.Jagdish Singh appearing on behalf of the petitioner submits

that the facts in brief of the case are that one Ghevar Ram filed a

complaint before the learned Trial Court, stating therein that he is

a resident of Rohicha Kalan, Tehsil Luni, District Jodhpur, with

agricultural land at Village Ratdi, Tehsil Siwana, District Barmer

where he farms the land along with the rest of his family. And that

on 17.11.2004 at midnight, while he was sleeping in his Dhani

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along with other family members, police personnel came to his

house to question his about one Papparam's whereabouts. And

that, when he did not respond, they gave beatings him with lathis

and inflicted injuries upon his person, namely his eyes, back and

thighs. And that, when the niece of the complainant, Dhapu Bai,

attempted to intervene, they misbehaved with her, assaulted her

and threatened to implicate her in a false case. And that, the

learned Court below on the basis of statements recorded, of the

complainant under Section 200 Cr.P.C. and the witnesses under

Section 202 Cr.P.C., proceeded to take cognizance against the

petitioner for the offences under Sections 452, 323, and 341 I.P.C.

vide order dated 16.02.2012. And that, aggrieved by the same the

petitioner preferred a revision petition against the same, which

came to be dismissed by the learned revisional Court vide order

dated 31.10.2018.

3. Learned Senior Counsel for the petitioner further submits

that the petitioner is a government servant who was discharging

his official duty, and on the basis of apprehension, reached the

residence of the complainant, to arrest history-sheeter Papparam.

And that, when the petitioner and his team arrived at the

residence, the complainant and his family did not cooperate and in

fact, hampered the investigation process.

3.1 It is further submitted that the testimonies of the witnesses

on the basis of which cognizance against the petitioner has been

taken, is wholly unreliable as they are relatives of the complainant

and are not independent witnesses.

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3.2     It is also submitted that the petitioner acted in accordance

with the law, and is protected under Section 197 Cr.P.C. wherein it

is stated that as the Govt. Servant, during the discharge of his

official duty, he is protected and permitted to use force against

civilians or other persons, when acting in a bonafide manner.

3.3 It is further submitted, that while the case of the prosecution

loses its entire foundation due to the same, the order of

cognizance also suffers from the legal infirmity of lack of

prosecution sanction, which was not obtained, even though the

petitioner is a government servant.

4. Learned Senior Counsel appearing on behalf of the appellant

placed reliance on the judgment of Sankaran Moitra Vs.

Sadhna Das and Ors. (2006) 4 SCC 584 and Indra Devi Vs.

State of Rajasthan and Anr. (2021) 8 SCC 768. Relevant

portion of the said judgments are reproduced as under:-

Sankaran Moitra (supra):-

"The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197(1) of the Code cannot be by-

passed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by

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performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned Counsel for the complainant that this is an eminently fit case for grant of such sanction. 18. We thus allow this appeal and setting aside the order of the High Court quash the complaint only on the ground of want of sanction under Section 197(1) of the Code of Criminal Procedure. The observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with."

Indra Devi (supra):-

"We have given our thought to the submissions of learned Counsel for the parties. Section 197 of the Code of Criminal Procedure seeks to protect an officer from unnecessary harassment, who is Accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. [See Subramanian Swamy v. Manmohan Singh (2012) 3 SCC 64]. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether

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the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the Accused was charged had a reasonable connection with the discharge of his duties. [See State of Maharashtra v. Dr. Budhikota Subbarao]2. The real question, therefore, is whether the act committed is directly concerned with the official duty.

We have to apply the aforesaid test to the facts of the present case. In that behalf, the factum of Respondent No. 2 not being named in the FIR is not of much significance as the alleged role came to light later on. However, what is of significance is the role assigned to him in the alleged infraction, i.e. conspiring with his superiors. What emerges therefrom is that insofar as the processing of the papers was concerned, Surendra Kumar Mathur, the Executive Officer, had put his initials to the relevant papers which was held in discharge of his official duties. Not only that, Sandeep Mathur, who was part of the alleged transaction, was also similarly granted protection. The work which was assigned to Respondent No. 2 pertained to the subject matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work. In the processing of application of Megharam, the file was initially put up to the Executive Officer who directed the inspection and the inspection was carried out by the Junior Engineer and only thereafter the Municipal Commissioner signed the file. The result is that the superior officers, who have dealt with the file, have been granted protection while the clerk, who did the paper work, i.e. Respondent No. 2, has been denied similar protection by the trial court even though the allegation is of really conspiring with his superior officers. Neither the State nor the complainant appealed against the protection granted Under Section 197 of the Code of Criminal Procedure qua these two other officers.

We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent No. 2 as was done in the case of the other two officials by the Trial Court and High Court respectively. The sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is what the High Court has directed in the present case as well."

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5. Learned Senior Counsel for the petitioner also placed

reliance on the judgments rendered in Aadram Vs. State of

Rajasthan (S.B. Cr. Misc. Petition No. 3408/2017, decided

by this Hon'ble Court on 25.05.2018); Devi Dan Vs. State

of Rajasthan (S.B. Cr. Misc. Petition No. 2177/2013

decided by this Hon'ble Court on 10.10.2014); Bhagwat

Singh Vs. State (S.B. Cr. Misc. Petition No. 793/2007,

decided by this Hon'ble Court on 22.01.2013); and Mohan

Lal Lathar & Ors. Vs. The State of Rajasthan & Anr. (Cr.

Rev. Petition Nos. 18,19,29,30,32,33 of 2015, decided by

this Hon'ble Court on 27.04.2016).

6. Learned A.G.A. appearing on behalf of the respondent-

State though opposes the submissions made on the behalf of

the appellant, but is unable to refute the same.

7. Heard learned counsel for both parties and, perused the

record of the case and the judgments cited at the Bar.

8. This Court observes that the acts committed by the

petitioner, a police officer (government servant), of questioning

the complainant and his family, was in the discharge of his

official duties. The petitioner approached the Dhani i.e.

residence of the complainant in order to locate a history sheeter,

one Papparam, and sought information of his whereabouts from

the complainant. And on non cooperation, the petitioner has to

use force due to which certain injuries were inflicted upon the

complainant.

9. This Court further observes that the acts committed by the

police officer-petitioner were in pursuance of discharge of his

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official duties, and even if the acts committed were excessive to

that required, in connection with the discharge of his official

duties, they can very well be tried after obtaining proper

sanction.

10. This Court, therefore is of the firm opinion that Section

197 Cr.P.C. applies in the present case, and the case of the

prosecution suffers from lack of acquiring the sanction to

prosecute the petitioner, a police officer i.e. government

servant.

11. This Court, looking into the statutory requirement as laid

down in Section 197 Cr.P.C. and the precedent laws of the

Hon'ble Apex Court and the Hon'ble Coordinate Benches of this

Hon'ble Court, as cited by the learned Senior Counsel for the

petitioner, deems it appropriate to quash the impugned orders,

whereby cognizance was taken against the petitioner for the

offences under Sections 452, 323, and 341 I.P.C.

12. The present petition, in light of the above-made

observations, is hereby allowed, and the impugned orders dated

31.10.2018 and 16.02.2012 passed by the learned Court below

are hereby quashed and set aside. All pending applications are

disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

110-SKant/-

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