Bablu Singh And Others @APPELLANT@Hash Ramesh Kumar Tyagi

Lol Pal Singh, J

Present petition, under section 482 of Cr.P.C., has been filed for quashing of the order dated 11.01.2012 passed by the Chief Judicial Magistrate,

Dehradun in criminal case no. 277 of 2012 Rakesh Kumar vs. P.D. Bhatt and others and to set aside the ex-parte order dated 03.02.2012 passed by

the Chief Judicial Magistrate, Dehradun.

Brief facts, of the case, are that respondent-complainant filed complaint under section 190 (1)(a) of Cr.P.C., with the allegations that dispute

between his sisters and one Neeraj Singh s/o Vedpal Singh is pending before the court below in regard to the property situated at Kolhupani measuring

Khata no. 149, Khasra no. 377 Rakba 0.023698. On 29.07.2011, third petitioner, namely, H.C.P. Dayawati Raghav called the respondent Rakesh

Kumar Tyagi. When respondent reached police station, present petitioners, who are the police personnel, started pressurizing him to enter into

compromise with Neeraj Singh and release the possession of the land and also did marpeet with him and hurl abuses.

Being a public servant, the Chief Judicial Magistrate before issuance of summons to the petitioners had issued notice to them, so they may file their

objections. Since, objections have not been filed by the petitioners, the learned Chief Judicial Magistrate, vide order dated 03.02.2012, has arrived to

the conclusion that the act of the petitioners of beating the respondent and abusing them was not within the scope of discharging official duties by

them and further held that petitioners are not entitled for protection of section 197 of Cr.P.C. and fixed 13.02.2012 for recording statement under

section 200 of Cr.P.C.

It is the contention of the learned counsel for the petitioners that the Magistrate has erred in law in taking cognizance in respect of offences, which

are said to have been committed by the petitioners in connection with discharging of their official duties. It is further pleaded that the cognizance of the

offence, in the criminal complaint, is barred by section 197 of Cr.P.C. against the petitioners, who were the police personnel, posted at police station,

Cantt., Dehradun.

For kind reference section 197 of Cr.P.C. is extracted hereunder:-

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 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]-

(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:

1

[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

[Explanation- for the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence

alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354C section 370,

section 375, section 376, section 376A section 376C, section 376C or section 509 of the Indian Penal Code (45 of 1860.]

(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.

3 [(3A) 1 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.]

3 [(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 , 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.

Heard learned counsel for the parties and perused the papers on record.

Perusal of the complaint, statement of the witness and material available on record would reveal that allegations of beating and hurling abuse have

been leveled against the petitioners and same have been supported by the statement of independent witness, namely, Mahesh Tyagi.

The Hon’ble Apex Court in the case of Bholu Ram vs. State of Punjab and another reported in (2008) 9SCC 140 has held that an offence

which does not come in discharge of official duty, there is no requirement of sanction from the Department. Relevant paragraphs are quoted

hereunder:-

We express our inability to agree with the learned counsel. It is settled law that offences punishable under Sections 409, 420, 467, 468, 471 etc.

can by no stretch of imagination by their very nature be regarded as having been committed by a public servant while “acting or purporting to act in

discharge of official dutyâ€​ (vide Prakash Singh Badal v. State of Punjab).

The Revisional Court was aware of legal position. It was, however, held by the Court that at the most there was negligence on the part of

respondent No.2 but there was no criminal intent and he cannot be held criminally liable. We have already held that mens rea can only be decided at

the time of trial and not at the stage of issuing summons. Moreover, a point as to need or necessity of sanction can be taken during the conduct of trial

or at any stage of the proceedings. Hence, proceedings could not have been quashed on the ground of want of sanction in the present case. The order

of the Revisional Court deserves to be set aside even on that ground.

In view of the law laid down by the Hon’ble Apex in the judgment (supra) and considering the facts and circumstances, I find no illegality in

the order passed the Chief Judicial Magistrate, Dehradun in holding that there is no requirement of sanction under section 197 of Cr. P.C. from the

employer as the act of the petitioners does not come within the purview of discharge of official duty and as such, the petition is liable to be dismissed

at this stage.

At this stage of dictation, learned counsel for the petitioners would further submit that since summoning order has not been passed yet, therefore

there cannot be a direction to the petitioners to appear before the C.J.M. concerned.

It appears that the Magistrate after satisfying itself has not passed the summoning order on the pretext that before issuing summoning order,

petitioners may be heard on notice and had issued the notice to the petitioners enabling their presence and argued the case.

The petitioners, who have obtained interim order in the year 2012, they cannot be permitted not to appear before the Magistrate concerned. They shall

appear before the Magistrate concerned.

Considering the facts and circumstances of the case, present petition under section 482 Cr.P.C. is dismissed, accordingly. Interim order dated

28.06.2012 stands vacated.

Considering the fact that the matter is pending since 2012 and more than 6 years have been elapsed, the C.J.M. concerned is directed to proceed

with the matter in accordance with law and decide the case expeditiously. Parties shall remain present before the C.J.M. Dehradun on 28.08.2018.