Allowed

Kamal Kishore v. the State of Jharkhand

Jharkhand HC7 Nov 2022Cr.M.P./2130/2021

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings and cognizance against a police inspector, holding that Section 197 Cr.P.C. sanction was required as the acts were in official duty, reinforced by higher police officers' exoneration reports, despite prior revision dismissal.

What did the court decide?

The order dated 09.12.2019 in Criminal Revision No. 250 of 2018, including the order taking cognizance, are quashed and set aside.

Kamal Kishore Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 2130 of 2021

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Kamal Kishore ..... … Petitioner Versus 1. The State of Jharkhand. 2. Mahfuz Alam ..... … Opposite Parties -------- CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI -----For the Petitioner : Mr. Jitendra S. Singh, Advocate. : Mr. Ashok Kumar, Advocate. For the State : Mr. V.K. Vashistha, Spl.P.P. For the O.P. No. 2 : Mr. Shadab Eqbal, Advocate.

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08/ 07.11.2022 Heard Mr. Jitendra S. Singh, learned counsel appearing for the petitioner, Mr. V.K. Vashistha, learned Spl.P.P. appearing for the State and Mr. Shadab Eqbal, learned counsel appearing for the O.P. No. 2.

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This criminal miscellaneous petition has been filed for quashing of the order dated 09.12.2019, passed in Criminal Revision No. 250 of 2018, by the learned Sessions Judge, Bokaro, including the entire criminal proceedings as well as order taking cognizance dated 17.05.2018, passed by the learned Judicial Magistrate, 1^st Class, Bokaro, in C.P. Case No. 1102 of 2016, by which, cognizance has been taken against the petitioner under Sections 217, 218, 220, 323, 330, 331, 465, 467 and 468 of the Indian Penal Code, pending in the court of learned Judicial Magistrate, 1^st Class, Bokaro.

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The complaint was filed by the O.P. No. 2 alleging therein that on 31.10.2016, the complainant/O.P. No. 2 had been called upon by the petitioner from his house. The complainant had been apprised by the petitioner that accused No. 2 had reported that 6 lakhs rupees had been taken by the complainant in the garb of selling the land three years back but the land had not been registered.

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It is further alleged that the complainant became astonished and further he had been told by the petitioner to come to the police station as and when directed. It is further alleged that on 01.11.2016, the petitioner had called upon the complainant at about 1.00 PM and directed him to come to the police station. It is also alleged that the complainant had reached the police station at about 2.00 PM. The petitioner had allegedly abused him for coming late and after assaulting him, closed him in the lockup.

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It is further alleged that the complainant had complained

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about the misdeeds of accused No. 2, but the action was not taken against him. the complainant had been locked upon in the hazat till 2.00 AM and was threatened to be implicated in false cases and remanded into judicial custody. It is also alleged that the complainant had been released only after execution of a document wherein he had to undertake not to inform any higher official about the misdeed of the petitioner. Co-accused Samim Khan and also assaulted the complainant and told him to spoil his life. It is further alleged that the witnesses had requested the petitioner to leave the complainant thereupon the complainant and the witnesses had returned. It is also alleged that the incident was reported to the Superintendent of Police, Bokaro, but the complainant was driven out of place and had been threatened of dire consequences, if he will lodge complaint against the police, hence the complaint being Complaint Case No. 1102 of 2016 has been lodged in the court of learned CJM, Bokaro on 06.06.2017.

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Mr. Jitendra S. Singh, learned counsel appearing for the petitioner submits that the petitioner was posted as Inspector-cum-Officerin-Charge at Chas Police Station from 01.09.2015 to 19.11.2017. He submits that Imamul Hoda had instituted an FIR, being Chas P.S. Case No. 83 of 2017 for the offences under Sections 406, 420, 504 and 506 of the Indian Penal Code against Mahfuz Alam, who is O.P. No. 2 in this case. He further submits that the I.O. after investigation has submitted chargesheet under Sections 406, 420, 504 and 506 of the Indian Penal Code. He further submits that the petitioner, being the Officer-in-Charge had performed his duty that too without any malice of ill will. He further submits that when the petitioner came to know about the complaint filed against the O.P. No. 2, he has tried to mediate between the parties. He further submits that the local residents had submitted a petition before the S.P., Bokaro with a copy to the DIG, Bokaro, DGP, Jharkhand, Ranchi and the Chief Minister, Jharkhand, wherein the role of the complainant / O.P. No. 2 has been vividly stated. He also submits that Md. Imamul Hoda and Muhfuz Alam entered into a compromise on 01.11.2016 and O.P. No. 2 agreed to give the land to his brother-in-law Md. Imamul Hoda. He further submits that the entire allegation evolves from the above compromise. He further submits that the O.P. No. 2 made a complaint before the National Human Rights Commission, which has been registered a National Human

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Right Commission Case No. 1546/36/2016.

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Learned counsel appearing for the petitioner further submits that the S.P., Bokaro vide letter dated 09.01.2017, directed the SubDivisional Police Officer, Sadar, Chas to make an enquiry and submit a report. He further submits that the Sub-Divisional Police Officer, Sadar, Chas has submitted a report with regard to the complaint of the O.P. No. 2, wherein he has found that the entire allegation is baseless. He further submits that Dy.S.P., Headquarters has also enquired into the matter and he has also submitted the report stating therein that the O.P. No. 2 has received rupees six lakhs from his brother-in-law to give five decimals of land, but neither he has returned the money nor the land was given. He further submits that the aforesaid two enquiries were made pursuant to the direction of the National Human Right Commission and the said two reports were forwarded to the National Human Right Commission, thereafter the O.P. No. 2 was called upon by the NHRC to file objection, if he is aggrieved with the report. He further submits that O.P. No. 2 has not raised any objection, however, the complaint has been lodged, wherein the learned court has taken the cognizance. He further submits that the revisional court saying is erroneous that Section 197 Cr.P.C. is not attracted, so far as petitioner is concerned, in view of Rule-825(b)(c) of the Jharkhand Police Manual, as the higher officials can dismiss the petitioner from service, that’s why Section 197 Cr.P.C. is not applicable in the case in hand. He further submits that the notification is there dated 16.05.1980, contained in Annexure-11, wherein it has been carved out that Section 197 Cr.P.C. is attracted with regard to police officer, who is discharging his official duty. This notification has been considered by the Hon’ble Supreme Court in the case of Om Prakash & Ors. Versus State of Jharkhand through the Secretary, Department of Home, Ranchi & Anr., reported in (2012) 12 SCC 72, wherein the Hon’ble Supreme Court in para-9 and 42 held as follows:-

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“ 9. Before we deal with the rival contentions, it is necessary to state one admitted fact which leads us to conclude that the reason given by the High Court for not quashing proceedings against appellants Om Prakash & Ors. namely that no notification under Section 197(3) of the Code was produced by them protecting them from prosecution in respect of any offence alleged to have been committed while

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acting or purporting to act in discharge of their official duties, is incorrect. We have been shown a copy of the Notification dated 16/5/1980 issued by the State of Bihar which extends the protection of sub-section (2) of Section 197 of the Code to all the members of the police force as it includes both officers and men. Mr. Gonsalves, learned senior counsel for the complainant has not disputed this position. It is, therefore, not necessary to dilate further on this issue.

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42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This court has repeatedly admonished trigger happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice administration system. They amount to State sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. Requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. Plea regarding sanction can be raised at the inception.”

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6. He further submits that Section 197 Cr.P.C. is attracted in this matter and the High Court, sitting under Section 482 Cr.P.C. can interfere in the matter, even after dismissal of the criminal revision, if injustice has been done to the petitioner.

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7. Mr. Shadab Eqbal, learned counsel appearing for the O.P. No. 2 submits that the enquiry witnesses have supported the case of the O.P. No. 2 and thereafter the learned court has taken the cognizance against the

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petitioner under Sections 217, 218, 220, 323, 330, 331, 465, 467 and 468 of the Indian Penal Code. He submits that in the garb of second revision, this petition has been filed, which is not maintainable. He further submits that the learned revisional court has rightly held that Section 197 Cr.P.C. is not attracted, as the petitioner has been governed by Rule 825(b)(c) of the Jharkhand Police Manual. He further submits that this aspect of the matter has been considered by a co-ordinate Bench of this Court in the case of Krishna Murari Versus the State of Jharkhand & Anr., reported in 2011 (4) JLJR 43 . Para-7 of the said judgment is quoted hereinbelow:-

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7. Having heard the submission, I have gone through the record of the case. It is admitted position that the petitioner is a police Inspector. Rule 824 of Jharkhand Police Manual provides different punishments including punishment of dismissal or removal from services which can be inflicted departmentally on a police officer of the rank of Inspector. Rule 825 (b) (c ) provides that a Police Inspector can be dismissed and/or removed from the service by Inspector General of Police or Deputy Inspector General of Police. There is no provision in the said Rule which make it imperative upon the Inspector General of Police or Deputy Inspector General of Police to pass order of dismissal and/or removal after taking approval from the State Government. Under the said circumstance, I conclude that Police Inspector can be removed from service by I.G. Police or D.I. G Police without obtaining any approval from the State Government. Section 197 (1) ( a) & (b) of the Code of Criminal Procedure runs as follows:-

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197. 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-

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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

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the affairs of the Union, of the Central Government;

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(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: [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"

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Relying on this judgment, learned counsel appearing for the O.P. No. 2 submits that Section 197 Cr.P.C. is not attracted so far as this petitioner is concerned, in view of the fact that the act was not done in discharging his official duty.

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On the other hand, Mr. V.K. Vashistha, learned Spl.P.P. appearing for the State draws the attention of the court to the counter affidavit filed by the State, particularly Annexures-A and B Series, which are the reports of the SDPO and DSP. By way of placing said reports, he submits that the petitioner has been exonerated by the two higher officials, who enquired into the matter. He submits that Section 197 Cr.P.C. is very much attracted. By way of placing the complaint case, he submits that the O.P. No. 2 himself has pointed out in the complaint that the petitioner and the O.P. No. 2 were called to police station with regard to the complaint. 10. In view of the above submissions of the learned counsel appearing for the parties, the court has gone through the materials available on record and finds that admittedly the O.P. No. 2 was an accused in a case, being Chas P.S. Case No. 83 of 2017. The enquiry reports of the SDPO and DSP clearly suggest that the said allegation was enquired into and these two higher officials have exonerated the petitioner, who happened to be the officer-in-charge, posted at Chas Police Station. The said enquiry was conducted pursuant to the direction of the Nation Human Rights Commission and after receiving the reports of these two officers, the National Human Rights Commission called upon O.P. No. 2, if he is aggrieved, he may file an objection, however, O.P. No. 2 has not filed any objection. In that view of the matter, these reports have attained the finality. However, this complaint was filed earlier.

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The spirit of Section 197 Cr.P.C. has been considered by the Hon’ble Supreme Court in the case of Om Prakash & Ors. (Supra), in which, the notification contained in Annexure-11 has been considered by the Hon’ble Supreme Court and considering that it has been held that unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution.

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Thus, if a police official has done anything in discharge of his official duty, Section 197 Cr.P.C. is attracted. In the case in hand, the petitioner has called upon the O.P. No. 2 to look into the grievance of one Inamul Haque. Thus, it cannot be said that the official duty was not discharged by the petitioner under Section 197(3) Cr.P.C.

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The judgment relied by Mr. Iqbal, learned counsel appearing for the O.P. No. 2 is not accepted by this Court, in view of the fact that notification dated 16.05.1980 has not be brought into the knowledge of the co-ordinate Bench and in absence of that, the order has been passed. Thus, the judgment, relied by the learned counsel appearing for the O.P. No.2 is not helping the O.P. No. 2.

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Moreover, the ingredients of Sections 217, 218, 220, 323, 330, 331, 465, 467 and 468 of the Indian Penal Code are not made out against the petitioner. Section 197 Cr.P.C. was the subject matter in the case of P.K. Pradhan Versus State of Sikkim , reported in (2001) 6 SCC 704 , where in para-5, thereof, the Hon’ble Supreme Court held as follows:-

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“5. The legislative mandate engrafted in sub section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code; any offence alleged to have been committed by him while acting or purporting to act in the

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discharge of his official duty. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of situation.”

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Reference may further be made to the case of Gauri Shankar

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Prasad Versus State of Bihar , reported in (2000) 5 SCC 15 , where in para-10, the Hon’ble Supreme Court has held as follows:-

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“ 10. This Court in Suresh Kumar Bhikamchand Jain v. PandeyAjay Bhushan and others, [1998] 1 SCC 205 dealing with the question, the stage at which the plea against taking cognizance without a sanction from the competent authority can be raised observed thus:-

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The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused

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producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings."

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Reference may also be made to the case of Abdul Wahab

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Ansari Versus State of Bihar , reported in (2000) 8 SCC 500 , where in

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para-7, it has been held as follows:-

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“7. Previous sanction of the competent authority being a pre- condition for the Court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain vs. Pandey Ajay Bhushan and Ors., 1998(1) SCC, 205, a similar contention had been advanced by Mr. Sibbal, the learned senior counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 gets attracted. Rejecting the contention, this court had observed:

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The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any

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bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings."

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The Court had further observed:

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The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority.”

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In view of the above judgments, it is crystal clear that the court is precluded from entertaining the complaint or taking note of it or exercising judicial power, if a public servant has committed offence in discharge of his official duty, who has committed any offence, in which complaint is made, sanction of the Government or competent authority is pre-requisite condition. Moreover, the allegation has been enquired by the two high officials of the police department, wherein he has been exonerated. It is well settled that High Court, sitting under Section 482 Cr.P.C. can entertain a petition, even after dismissal of the criminal revision, if injustice has been done to the petitioner.

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In view of the above facts, reasons and analysis, the order dated 09.12.2019, passed in Criminal Revision No. 250 of 2018, by the learned Sessions Judge, Bokaro, including the entire criminal proceedings as well as order taking cognizance dated 17.05.2018, passed by the learned Judicial Magistrate, 1^st Class, Bokaro, in C.P. Case No. 1102 of 2016, by which, cognizance has been taken against the petitioner under

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Sections 217, 218, 220, 323, 330, 331, 465, 467 and 468 of the Indian Penal Code, pending in the court of learned Judicial Magistrate, 1^st Class,

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Bokaro, are hereby, quashed and set aside.

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