Pyare Lal Shukla vs State of U.P. and Another

R.N. Roy, J.—Heard learned Counsel for the revisionist who submitted that on perusal of complaint petition dated 21.4.92 the learned Magistrate ought not to have proceeded to examine the witnesses and issued summons because the opposite party is a police officer and as per allegation the alleged occurrence took place while he was on duty and as such the provisions of Section 197, Code of Criminal Procedure was to be complied with before filing complaint petition. Learned Court below erred in law in proceeding with the complaint petition without sanction for the same. It has been further submitted that case crime No. 140/92 u/s 394/411/323/342/504/506/166/109, I.P.C. was registered and after investigation the police submitted charge-sheet and learned Court below took cognizance against the complainant''s men and others. This complaint petition is a counter-blast against that case; and this revisionist, and others have been falsely implicated by fabricating story and that if at all this revisionist along with others visited the place of alleged occurrence of the complainant and did anything while discharging his official duty then prior sanction is required u/s 197(2), Code of Criminal Procedure The learned Magistrate was wrong in issuing process after examination of the complainant or his witnesses. This revisionist appeared before the learned Court below and filed a petition for withdrawing the summons or to recall the order by which the summons were issued on the ground that the complaint was not maintainable and cognizance was bad due to non-fulfilment of the requirement as contemplated in Section 197, Code of Criminal Procedure It has been submitted that after getting the summons this revisionist appeared before the learned Court below and filed petition for recalling the same as stated above, so it was wrong for the learned Court below to observe that inspite of summons this revisionist never appeared before the learned Court below and was pleased to pass the impugned order dated 4.7.95 issuing warrant. It has been submitted that the impugned order was passed by the learned Court below in disregard to the provisions of law and in support of his contention he has placed reliance upon the ruling reported in Mohan v. State of U.P. and Ors. AIR 1988 SC 226.

Duly considered the submissions and also heard learned A.G.A.

Every action of a public servant on duty cannot be held to be an act in discharge of his official duty. A public servant who does not purport to act in discharge of his official duties and merely uses his official position to do an illegal act cannot claim protection or benefit of Section 197, Code of Criminal Procedure In this regard reliance may be placed on the decision reported in Om Prakash Gupta Vs. State of U.P., .

The act complained of and official duty are required to be so interrelated that one can postulate reasonably that it was done by the accused In discharge of his official duty otherwise he was not entitled to get the benefit of Section 197, Code of Criminal Procedure In this regard the guideline has been given by Apex Court in a decision as reported in Prabhakar V. Sinari Vs. Shanker Anant Verlekar, . The police officer used abusive language to complainant when the complainant was in lockup as an accused of a cognizable offence. Further held that in that case no sanction was needed for prosecuting against such police officer because using of such abusive language was not within the scope of discharge of his official duty. In this regard reliance has been placed upon the decision as reported in Abani Ch. Biswal Vs. State of Orissa and Another, . The test is that whether act complained of is directly or indirectly connected with the discharge of his official duty. In this regard reliance may be placed upon a decision reported in Baijnath Gupta and Others Vs. The State of Madhya Pradesh, and also in Molvi Mohammad Usman Vs. State, .

In view of the settled position of law prima facie I do not find anything wrong in taking cognizance In issuing summons by the learned Court below because upon the facts as complained of it appears that no sanction is necessary.

However, I think that the police officer may approach the learned Court below and may file application for granting bail on such condition as may appear fit and proper before the learned Court below. If such application is filed learned Court below shall grant bail on such condition as may deem fit and proper.

With this direction this criminal revision is rejected at the admission stage.