Om Prakash Chatak vs State of U.P. and Another

Amar Saran, J.—This application u/s 482 Cr. P. C. has been filed for quashing criminal proceedings against the applicant in case No. Nil, u/s 394 IPC, pending before the Special Judge (DAA Act) in the case of Ram Niwas v. O. P. Chatak.

A complaint was filed on 13-12-1989 by one Ram Nivas, Adypcate alleging that the complainant was a retired Hawaldar of the Army and on 30-8-1989 at about 9.00 p. m. when he was returning from the market, the applicant, Om Prakash Chatak along with four other police personnel surrounded him and poured a hot cup of tea over his head, threatened to implicate him in a case u/s 35 of the Police Act as he had not paid the police personnel Rs.500/- (rupees five hundred), which he had promised earlier. They also beat up the complainant and took out Rs.50/- from his pocket and removed his sandals. The complainant is said to have received injuries and he was medically examined on the order of the Munsif Magistrate at the district hospital on 2-9-1989. The complainant was even kept in the police lock-up for about 14 hours and thereafter sent to jail on 31-9-1989 after being falsely implicated in a case u/s 294 IPC. The complainant was also threatened that a history sheet would be opened against him. After examining the complainant u/s 200 Cr. P. C. and his witnesses Mahendra Singh, and Mahesh Baghel, u/s 202 Cr. P. C, the applicant was summoned by the order dated 26-2-1990 passed by the Special Judge (DAA) Act, Agra.

Firstly, it has been contended by the learned counsel for the applicant that the-present case had been lodged by way of counter blast as the complainant had been arrested in a case u/s 294 IPC and charge sheet has even been submitted against him. It is further alleged that the complainant was not registered as an Advocate at the time of his arrest. He used to move about in a drunken state and had become a nuisance and headache for the ladies and school going girls of the locality.

These are pure questions of facts, which cannot be deckled at this stage. The complainant was a retired Hawaldar and he had started his legal practice. The applicant''s allegation as to whether he moved about in a drunken state and was a nuisance for the ladies and school going girls of the locality and whether this case has been filed by the complainant as a counterblast to the case u/s 294 IPC, which was lodged against the complainant, cannot be decided in this application u/s 482 Cr. P. C. and the applicant will have an opportunity during the trial to raise his defences in this regard at the appropriate stage.

The case of A. S. Nayal v. Khem Chand (1983) 20 Cri 264 : (1983 All LJ 1074) cited by the applicant''s counsel in which the growing tendency of litigants to file vexatious and frivolous complaints was criticized and criminal proceedings before the CJM were quashed, is also not very helpful, as it was a case where the complainant, a driver in the Collectorate had filed a complaint against three Executive Magistrates for committing offences under Sections 323, 394, 504 and 506 IPC. The situation in the present case where a retired army Hawaldar, who has taken to legal practice files a complaint against police personnel is distinguishable on facts.

Similarly the case, Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, basically states that the Magistrate has to scrutinize the evidence on record to assess whether any prima facie any case is made out and whether there is any material against the accused, and the High Court also has power to quash a summons case. It cannot be said that in this case the learned Magistrate has failed to examine whether a prima facie case was or was not made out on facts, nor can it be said that at this stage it was a case of no evidence. In a subsequent decision of Dy. Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and Others, it has been held that the Magistrate is not required to give reasons for summoning an accused.

The second contention raised by the learned counsel for the applicant was that as the applicant who was a Sub-inspector of Police and posted at P. S. Sikandra was on duty at the time of incident, and he could not be prosecuted without sanction from the State Government.

In the present application only prosecution allegations are to be seen. Apparently there can be no reasonable connection between the act and discharge of the official duty if an accused police officer pours tea on the head of a retired Hawaldar and also gives him a sound beating for the purpose of relieving him of some money and committing an offence u/s 394 IPC.

In the case of Harihar Prasad, etc. Vs. State of Bihar, it has been noted that no offence u/s 409 read with Section 120B IPC and Section 5(2) of the Prevention of Corruption Act., will require sanction for prosecution u/s 197 Cr. P. C. as it can never be a part of the duty of a public servant while discharging his official duty to enter into a criminal conspiracy or to indulge in criminal misconduct.

Likewise the Apex Court in the case of State of Kerala Vs. V. Padmnabhan Nair, has held that forgery of valuable security under Sections 467/468/471 IPC for the purpose of cheating and using as genuine a forged document respectively, and it is no part of the duty of a public servant while discharging his official work to commit forgery of the type covered by the aforesaid offences.

In this view of the matter, the contention of the learned counsel want of sanction fails against the applicant.

However, as mentioned above, it would be open for the trial Court to consider whether the allegations against the applicant are concocted and maliciously made for falsely implicating the applicant by way of counter blast to (he criminal case lodged by the applicant against the complainant or whether the allegations in the complaint arc genuine and true. This Court cannot decide this controversy in this application. Also at a subsequent stage if the applicant is able to show that there is evidence to show that the conduct of the applicant was so inextricably connected with the discharge of his duties, the issue with regard to the need to obtain sanction for prosecuting the applicant may also be decided by the trial Court on merit at that stage. In this connection it has been mentioned by the Apex Court in A.K. Singh and Others Vs. Uttarakhand Jan Morcha and Others, that the question of requirement of sanction should properly be considered by the trial Court looking to the fact situation of the case, and not the High Court.

It is also being made clear that the trial Court is to decide the case on merits at the trial uninfluenced by the observations made hereinabove for the purpose of deciding the present application u/s 482 Cr. P. C.

In this view of the matter, there is no force in this application. It is accordingly dismissed. The stay order granted earlier is vacated. The trial Court is directed to conclude the trial of this case within six months, if possible, as the matter has remained stayed for a long time.

However, in view of the circumstances of the case, it is provided that if the applicant appears before the Court concerned and applies for bail in the aforesaid case, the same shall be disposed of by the Court expeditiously in accordance with the direction of Full Bench in Criminal Miscellaneous Application No. 2154 of 1995 Amarawati and Another (Smt.) Vs. State of U.P., .

The application is dismissed as above.