Allowed

Rakesh Yadav and 3 Others v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Allahabad HC2 Aug 2023/2162/2022

Case brief

AI extract

What is this about?

In this criminal appeal, the Allahabad High Court set aside the summoning order against appellants in an SC/ST Act case. The court held that the lower court erred in summoning police personnel without obtaining the mandatory sanction required under Section 197 Cr.P.C., declaring the order illegal and perverse in light of Supreme Court precedents.

What did the court decide?

The impugned summoning order dated 07.03.2022 passed by the Special Judge, SC/ST Act, Hardoi is set aside.

Rakesh Yadav and 3 Others Vs State of U.P… — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:51323 [Reserved]

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Court No. - 29

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Case :- CRIMINAL APPEAL No. - 2162 of 2022 Appellant :- Rakesh Yadav And 3 Others Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another Counsel for Appellant :- Siddhartha Sinha,Arun Sinha,Mohammad Zeeshan Lari,Sanjay Kumar Yadav,Umang Agarwal Counsel for Respondent :- G.A.,Afaq Zaki Khan,Shakeel Ahamd

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Hon'ble Mrs. Renu Agarwal,J.

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Heard learned counsel for the appellants and learned A.G.A. for the State.

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Present criminal appeal has been moved by the appellants against opposite party No. 2-Pradeep Kumar under Section 14A(1) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act for quashing the summoning order dated 07.03.2022 passed in complaint No. 84 of 2020 by the Special Judge, SC/ST Act, Hardoi summoning the appellants under Section 323, 504, 506, 379 I.P.C. and Section 3(i)Da of the S.C./S.T. Act pending the court of Special Judge, SC/ST Act, Hardoi and also for quashing the complaint No. 84 of 202 under Section 323, 504, 506, 379 I.P.C. and Section 3(i)Da, 3(i)Dha of SC/ST Act, P.S.-Pihani, District Hardoi pending in the Court of Special Judge, SC/ST Act, Hardoi and also for quashing the entire proceedings.

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Despite service of notice to opposite party No. 2 through S.P., Hardoi, there is no representation on his behalf.

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It is submitted that the appellant moved a complaint No. 84 fo 2020 on the ground that the statement of witness-Ram Ladaite recorded under Section 200 Cr.P.C., however, the statement of the said witness should have been recorded under Section 202 Cr.P.C. Appellants are innocent and they have not committed any alleged crime. Place of occurrence has been changed from Bhainsata River to Mazar ‘Jind

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Peer Baba’ which is about 5-6 kms. Away. It is further submitted that altercations between the complainant and the person accused by him in the murder of his father, the police initiated the proceedings under Section 151, 107 and 116 Cr.P.C. against both the parties on 01.05.2019. It is further submitted that Mohd. Shifa is a so-called journalist who used to blackmail the local businessmen and extorted them. The local businessmen filed an F.I.R. bearing crime No./F.I.R. No. 364 of 2019 under Section 392, 411, 323, 504 I.P.C. at P.S.-Pihani, District-Hardoi on 01.06.2019. After the investigation, charge-sheet is filed against Mohd. Shifa. Witness Ram Ladaite is working for Mohd. Shifa and Munni Devi is mother of complainant. Munni Devi was not shown as witness in the complaint case but her statements were recorded under Section 202 Cr.P.C. which has formed the basis of summoning order. The statement of Ashish which is mentioned as witness in complaint was not produced before court. It is further submitted that learned trial court did not appreciate the fact that medical examination report is not filed in court and court relied on the photocopy of the medical report. The present case has been registered against police personnels because the police initiated proceedings under Sections 151, 107 and 116 Cr.P.C. No prosecution sanction has been taken from the authorities and without sanction, the police personnels have been summoned by the court below. Alleged incident has taken place during the course of duty allegedly in police station-Pihani but still court below has failed to appreciate the fact that no sanction to prosecute the appellants was taken.

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On the contrary, learned A.G.A. submitted that case is registered under the provisions of SC/ST Act and court has passed the order on the basis of statements recorded under Section 200 and 202 Cr.P.C., hence, the order of trial court is liable to be upheld.

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I have heard the rival submissions advanced on behalf of the parties and perused the record.

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F.I.R. is lodged by one Pradeep Kumar against the present appellant along with four other private persons stating that applicant belonged to scheduled caste community. The complainant of the present case lodged an F.I.R. against one Rahul, Nardheer, Rajeev and Mangre regarding abduction and murder of his father in police station Majhila. After being released on bail, Rajeev and Mangre pressurized the complainant to withdraw the case against them and forced them to inter into compromise, they also threatened him and his family members. On 26.04.2019 at about 7:00 am, when he reached near Mazar of ‘Jind Peer Baba’, all the four persons carrying lathi, danda in their hands started abusing him by mentioning his caste and assaulted him and snatched Rs. 5,000/- from him which he was carrying with him and they fled away by threatening him seeing the passers by at the spot. Complainant tried to lodge F.I.R. in the Police Station-Pihani, however, the his request was denied then all the four persons misbehaved with him, beaten him and threatened him that he will be sent to jail for life. Thereafter, he lodged a complaint through Jan Sunwai Portal twice. When Rakesh Yadav and Krishna Kumar came to know about the complaint, they called the complainant him in the police station on 23.06.2019 at about 10:00 am and pressurized him to withdraw the complaint and they assaulted him with Lathi and Danda and they also snatched Rs. 650/- from his pocket. The said incident was witnesses by Ram Ladaite. The complainant produced himself before the court and recorded his statement under Section 200 Cr.P.C. and statement of Munni Devi was recorded under Section 202 Cr.P.C. On the basis of statement of witnesses, learned trial court summoned the accused. The impugned order is challenged in the Court. Annexure No.-8 is the application to D.I.G., Lucknow for registration of F.I.R. Learned counsel

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for the appellant submitted that initially the complaint was only against Mangre, Rajeev, Shreeram and Dharmraj and after lodging of the F.I.R., on the basis of incident dated 26.07.2019, while moving complaint in the concerned court, the name of present appellant is also introduced without having any evidence against them.

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Learned trial court did not consider the fact that initially the application moved by opposite party No. 2 only against the private persons and later on, on the basis of the same incident, the names of present appellants are also added by complaint. Learned trial court had to consider the complete evidence on record at the time of passing the order. It also transpires from record that the opposite party No. 2 and other persons were summoned in the police station as there was apprehension of breach of peace. Proceedings under Section 151, 107 and 116 Cr.P.C. were initiated by the Court. This fact is revealed in General Diary Details and Chalani Report annexed as Annexure No. 9 and 10 of the police station. It goes to show that there was apprehension of breach of peace as the case against private opposite parties were being tried in the Court concerned and they were released on bail too. Annexure No. 16 is the certificate issued by Vishnu Rathore, member of Municipal Baord. It goes to show that Pradeep Kumar is a servant in the house of Mohd. Shifa @ Shaveeh Abbas and Munni Devi, whose statements were recorded under Section 202 is the mother of complainant Pradeep Kumar. It is argued that the present complaint is moved at the instance of Mohd. Shifa by the complainant.

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It is admitted that a criminal case was pending against the private respondents regarding the abduction and murder of the father of the complainant. It is also clear from the application dated 26.04.2019 moved by the present complainant to D.I.G. that on 26.04.2019, Mangre, Rajeev, Shriram and Dipu, armed with Lathi, Danda and Hasia in their hands caught hold of him and threatened him to

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withdraw the case otherwise he shall be killed like his father. In the said application there is no allegation against the present appellants and their name is mentioned only when he got legal assistance and he filed complaint through advocate, therefore, it appears that in order to pressurize the police officers, false allegations are made in the complaint against present appellants.

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It is considered apt to reproduce hereinbelow Section 197 of the Cr.P.C., which is relevant for the purpose of adjudicating the present appeal:-

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“ 197. Prosecution of Judges and public servants.

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(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-

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(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.

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(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.

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(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.

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(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.

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(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.]

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(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.”

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Hon’ble Supreme Court in case of D. Devaraja vs. Owais Sabeer Hussain passed in Criminal Appeal No. 458 Of 2020 has held that “ sanction is required not only for acts done in the discharge of official duty but also required for any act purported to be done in the discharge of official duty and/or act done under colour of or in excess of such duty or authority” .

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In Devinder Singh vs. State of Punjab through CBI passed in (2016) 12 SCC 87 , Hon’ble Supreme Court took note of almost all the decisions on the point and summarized the principles emerging therefrom, in paragraph 39 as follows:

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“ 39 . The principles emerging from the aforesaid decisions are summarised hereunder:

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39.1 . Protection of sanction is an assurance to an honest and sincere officer to perform his duty

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honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

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39.2 . Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

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39.3 . Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under Section 197 CrPC. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor is it possible to lay down such rule. 39.4 . In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. ….”

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It also transpires from the record that opposite party No. 2 did not obtain the sanction to prosecute the police personnels. Learned trial court did not consider that the sanction under Section 197 Cr.P.C. which is mandatory for prosecution against the police personnels is not obtained. In the light of above discussion, the summoning order of present appellants is based on erroneous facts without obtaining sanction. Hence, the order of summoning is illegal and perverse and it is liable to be set-aside.

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In view of the discussions as above, appeal is allowed .

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Impugned summoning order dated 07.03.2022 passed in complaint case no. 84 of 2020 by the Special Judge, SC/ST Act, Hardoi is hereby set-aside .

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[Renu Agarwal,J.]

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Order Date:- 02.08.2023 Karan/kkv

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Digitally signed by :- KRISHAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Rakesh Yadav and 3 Others v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Case brief

What is this about?

What did the court decide?

Rakesh Yadav and 3 Others v. State of U.P. Thru. Prin. Secy. Home, Lko. and Another

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