Inspector Dadhibal Tiwari Vs State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Deptt. Home Govt. Civil Secrt. Lko. and Others

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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APPLICATION U/S 482 No. - 456 of 2024

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Inspector Dadhibal Tiwari

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.....Applicant(s)

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Versus

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State Of U.P. Thru. Addl. Chief Secy. Prin. Secy. Deptt. Home Govt. Civil Secrt. Lko. And Others .....Opposite Party(s) Counsel for Applicant(s) : Neeraj Kumar Rai, Ramakar Shukla Counsel for Opposite Party(s) : G.A., Ram Pratap Yadav

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Court No. - 16

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HON'BLE BRIJ RAJ SINGH, J.

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Heard Shri Ramakar Shukla, learned counsel for the applicant as well as learned AGA for the State. Learned counsel for opposite party no.2 is not present, while his name is shown in the cause list.

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This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to set-aside the impugned criminal proceedings which has been initiated in pursuance to Criminal Complaint Case No. 419 of 2014 (Ramsundar Vs. Jai Singh and others) and also the Cognizance and summoning order dated 22.12.2006 including entire proceedings, which is pending in the court of learned Civil Judge (Junior Division) FTC-II, Raebareli as contained in Annexure No.1 to the application.

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It has been submitted by learned counsel for the applicant that the applicant was serving as Station House Officer at Police Station Fursatganj, District Raebareli, now District Amethi and while discharging his duty as S.H.O. he apprehended opposite party no.4 in Case No. 101/2004, under Sections 379, 504, 506 IPC and Section 4/10 of Ground Trees Protection Act, Police Station Fusatganj, District Raebareli.

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It has been submitted that opposite party no.4 out of vengeance and extraneous design he implicated the applicant. It has been submitted that the opposite party no.4 filed an application under Section 156(3) Cr.P.C.

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against the applicant, which was rejected on 13.7.2004. The opposite party no.4 filed a revision before the revisional court and revision was allowed, by which direction was given to the Magistrate to do needful in the application of opposite party no.4 which was filed under Section 156(3) Cr.P.C. The FIR was registered against the applicant on 5.9.2004 in case Crime No. 252 of 2004, under Sections 379, 323 IPC, Police Station Fursatganj, District Raebareli, which was investigated and final report was submitted by the police on 23.11.2004.

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The opposite party no.4 filed a Protest Petition on 16.5.2005, on which the complaint case was treated on 12.5.2006. The statement of complainant was recorded under Section 200 Cr.P.C. and the statements of the witnesses were recorded under Section 202 Cr.P.C. Pursuant to which the impugned summoning order dated 22.12.2006 has been issued.

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Learned counsel for the applicant has submitted that there is no prior permission granted in the case against the applicant prior to instituting the criminal case which is in Section 197 Cr.P.C. For ready reference Section 197 Cr.P.C. is quoted below:-

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"S. 197

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Prosecution of Judges and public servants

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Description

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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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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

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Central Government;

in the case of a person who is employed or, as the case may be, was at the lime of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

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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 section 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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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 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code.¹

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No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole 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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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. 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

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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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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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He has submitted that even in the complaint case the requirement of prior permission is required, which is held by the Hon'ble Supreme Court in the case of Anil Kumar and others Vs. M.K. Aiyappa and another , (2013)10 Supreme Court Cases 705 and he has relied upon paragraph 21 of the judgment, which is reproduced hereunder:-

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" 21. The learned Senior Counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction . That does not mean

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that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to herein-above, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanian Swamy cases. "

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He has further submitted that the case of State of Haryana Vs Bhajan Lal , 1992 Supp. (1) SCC 335 is also holding field in the present case. Paragraph 102 of Bhajan Lal there is various category provided for quashing the criminal proceeding and Hon'ble Supreme Court has held that if the complaint is vexatious and malafide the same can be quashed. He has relied 7th category of paragraph 102 and has submitted that the judgment after looking into the fact of the present case it evident that the applicant being S.H.O. was performing official duties and had lodged FIR against the respondent no.4 under Section 379, 504, 506 of IPC and 4/10 of GTP Act. He apprehended the respondent no.4 that is why out of retaliation the complaint has been instituted by respondent no.4.

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On the other hand learned AGA has submitted that after bare perusal of the statements under Sections 200 and 202 Cr.P.C. it cannot be said that the offence is not constituted. He has submitted that the Court cannot weigh the evidences and cannot do mini trial, therefore, the summons issued by the Summoning Court is justified.

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I have considered the argument of learned counsel for the applicant as well as learned AGA for the State. After going through the record, it is evident that earlier the applicant being Police Officer has apprehended the respondent no.4 in pursuance of the FIR lodged in the Police Station. He had performed his duty as a Police Officer. The case which was instituted by respondent no.4 against the applicant further goes to indicate that at one time the police filed final report in favour of the applicant and thereafter on the protest filed by the respondent no.4 the case has been converted into complaint. It is a case of malafide of respondent no.4 which has been instituted out of vengeance. The criminal case has been instituted only out of counter blast of the earlier case lodged by the applicant against the respondent no.4, in which he was apprehended.

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The requirement of Section 197 Cr.P.C. has also not been fulfilled and no prior sanction has been taken which is evident after looking into the judgment of Anil Kumar and others (supra) and the provision of Section 197 Cr.P.C. itself. Even in the case of complaint under Section 156(3) Cr.P.C. The sanction is required under Section 197 Cr.P.C., which is missing in the present case. The case of the applicant is also covered by the judgment of State of Haryana Vs. Bhajan Lal (supra) (paragraph no. 102 Point No. 7 as discussed) and the criminal proceedings appears to be vexatious and malicious, the same can be quashed. In the present case instituted by opposite party no.4 is just to settle his personal score.

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The application stands allowed. The proceedings of Complaint Case No. 419 of 2014 (Ramsundar Vs. Jai Singh and others) and also the Cognizance and summoning order dated 22.12.2006 including entire proceedings, which is pending in the court of learned Civil Judge (Junior Division) FTC-II, Raebarel, are hereby quashed.

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(Brij Raj Singh,J.)

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October 14, 2025 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Inspector Dadhibal Tiwari v. State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Deptt. Home Govt. Civil Secrt. Lko. and Others

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Inspector Dadhibal Tiwari v. State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Deptt. Home Govt. Civil Secrt. Lko. and Others

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