Dismissed

Raj Kumar Walia v. Subhash Chand

Punjab & Haryana HC9 Jan 2012CRM-M/22808/2010

Case brief

AI extract

What is this about?

The High Court dismissed a quashing petition filed by an SI of Police against a criminal complaint alleging illegal detention and assault. The Court held that the acts were not part of official duty, so Section 197 sanction was unnecessary, and the prosecution was not malicious.

What did the court decide?

The criminal complaint, summoning orders, and subsequent proceedings were not quashed and the petition was dismissed.

Raj Kumar Walia Vs Subhash Chand — Criminal Trial and Appeal | Punjab & Haryana HC (2012)

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Criminal Misc.No.M-22808 of 2010 -1-

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Criminal Misc.No.M-22808 of 2010

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Date of Decision:- 9.1.2012

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Raj Kumar Walia ...Petitioner

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Versus

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Subhash Chand ...Respondent

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CORAM:HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR

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Present:Mr.Manoj Bajaj, Advocate for the petitioner.

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Mr.Ashok Khubbar, Advocate for the respondent.

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Mehinder Singh Sullar, J . (Oral)

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The contour of the facts, culminating in the commencement, relevant for the limited purpose of deciding the sole controversy, involved in the instant petition and emanating from the record, is that Subhash Chand son of Surta Ram complainant-respondent filed the complaint (Annexure P7) against petitioner Raj Kumar Walia, Sub Inspector of Police on the following grounds:-

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i) That on 15.12.2002, the complainant alongwith Shri Gian Chand s/o Sh.Babu Ram, r/o Radaur, went in a Car No.DDB-2093, at village Khanpur Kolian near Pipli, where the sister of Gian Chand is married and they stayed there during the night, and on 16.12.2002, when they were coming back to Radaur in that car, the car was being driven by Gian Chand and the complainant was sitting on the front seat of the said car. When they reached on Ladwa Road at Pipli Chowk,the accused Raj Kumar SI alongwith 3-4 other persons in civil dress, was standing there and he given signal to Gian Chand for stopping the car. The car was stopped, and the accused said to the complainant and Gian Chand that he has the information that this car is being used for the smuggling of liquor etc. and that there is liquor in the car, upon which the complainant came out of the car and told to the accused that there is no wine/liquor in the car nor the said car is used for smuggling of liquor etc. but the accused directed Gian Chand to take the car in his office at

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Kurukshetra, and on refusal by the complainant and Gian Chand driver of the said Car, the accused had become annoyed/angry and he took a Danda from his associates and gave a blow of Danda with full force on the left arm of the complainant and another blow of that danda was inflicted on the head of the complainant, and due to that blows the left arm of the complainant was fractured and blood started oozing from the head of complainant. The other associates of the accused also gave danda blows on the person of complainant and Gian Chand and they abused the complainant and Gian Chand in filthy languages and also gave fist and slaps.

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ii) That the accused thrown the complainant inside the car forcibly and sat in the car himself and directed the driver Gian Chand to take the car towards Kurukshetra and on reaching at the office of Excise Deptt near Old Bus Adda Kurukshetra, the accused asked Gian Chand to call the owner of the said Car No.DDB-2093, and the complainant was illegally detained by the accused in the office.

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iii)That the accused took the complainant to some private Hospital/doctor where the complainant was provided plaster on his left arm and some stitches were applied on the head of complainant, as the blood was oozing from the head of the complainant.

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iv)That on 19.12.2002 Sh.Sanjiv Kumar s/o Sh.Sohan Lal r/o Radauri, went to the office of the accused in order to get the complainant be released from the accused, where the accused forcibly and illegally taken out a sum of Rs.5000/- from the pocket of Sanjiv Kumar in the presence of the complainant and at the same time the accused also extorted a sum of Rs.20000/- Manjeet alias Gullu s/o Sh.Tara Singh by saying that he found Liquor from the car and as such this amount is to be deposited in the Excise Department as fine, and he took Sh.Manjit alias Gullu to the Excise office, where the accused deposited only a sum of Rs.7200/- and the remaining amount was illegally kept by the accused with him out of Rs.20000/- dishonestly.

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v) That on 19.12.2002 the complainant Manjit alias Gullu and Sanjiv Kumar as well as Gian Chand, were allowed to go and they came at Radaur where the complainant remained lying on bed upto 24.12.2002 and then on 25.12.02 the complainant moved an application to the learned Duty Magistrate KKR for his medical examination whereupon the doctor medically examined the complainant and a Rukka was sent to the police of PS Sadar Thanesar at Pipli by the doctor. The ASI Suraj

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Bhan came in the Hospital and he enquired about the incident and recorded the statement of the complainant in the Hospital, and he also obtained the signature of the complainant on his statement without explaining/reading over the said statement to the complainant. But despite of recording statement of complainant, the police did not take any action against the accused, and only a formal DD No.20 dated 26.12.2002 was registered in the Rojnamcha and this fact came to the notice of the complainant on enquiry made by him about taking action against the accused from the SHO of Police Station Sadar Thanesar at Pipli, who told to the complainant all together different story and also informed the complainant that the police would not take any action against the accused on the statement of complainant. Then the complainant obtained the copy of DD No.20 dated 26.12.02 from Police Station Sadar Thanesar at Pipli, by moving an application to that effect in the court of learned C.J.M. KKR and that copy was issued to complainant, on the direction issued by the Hon'ble Kurukshetra.”

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That being so, the complainant filed the indicated criminal complaint (Annexure P7) against the petitioner under sections 323, 325, 342 and 392 IPC. Taking cognizance on the complaint, the JMIC summoned the petitioner-accused to face trial for the commission of offences punishable under section 323, 325 and 342 IPC, by virtue of summoning orders dated 25.10.2004 (Annexure P12) and 25.10.2008 (Annexure P13).

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After considering the pre-charge evidence, the trial Magistrate, by way of detailed order dated 1.7.2010 (Annexure P15) came to a definite conclusion that there is sufficient evidence on record, to frame the charges against the accused (petitioner). Consequently, the petitioner was charge sheeted accordingly, by means of charge-sheet dated 1.7.2010 (Annexure P16).

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Although the petitioner-accused has already specifically been charge sheeted, vide impugned order/charge sheet (Annexures P15 & P16), but he has preferred the present petition, challenging the complaint (Annexure P7), the summoning orders (Annexures P12 & P13) and the subsequent proceedings arising out of it, invoking the provisions of section 482 Cr.PC, inter-alia pleading that no

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sanction under section 197 Cr.PC was obtained before taking cognizance by the Magistrate, the petitioner has probable defence and he has been falsely implicated by the complainant-respondent, who is facing many criminal cases. On the basis of aforesaid allegations, the petitioner filed the instant petition for quashing the criminal complaint (Annexure P7), summoning orders (Annexures P12 & P13) and all subsequent proceedings arising therefrom in the manner depicted hereinabove.

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After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant petition in this context.

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Ex facie, the arguments of learned counsel that there is no material evidence on record to prosecute the petitioner and since no sanction under section 197 Cr.PC was obtained from the competent authority before taking cognizance by the Magistrate, so, the complaint (Annexure P7), summoning orders (Annexures P12 & P13) and the subsequent proceedings arising therefrom are vitiated, are neither tenable, nor the observations of Hon'ble Apex Court in cases Rakesh Kumar Mishra v. State of Bihar and others 2006(1) RCR (Criminal) 456 and State of Madhya Pradesh v. Sheetla Sahai & Ors. 2009(3) RCC 531 , are at all applicable to the facts of the present case.

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As is clear that in Rakesh Kumar Mishra's case (supra), the appellant received a report about the commission of dacoity and a criminal case was registered against the culprit, in respect of commission of offence punishable under section 395 IPC. The appellant received source information about the involvement of certain persons, one of whom was Ratnesh Kumar Dubey alias Chhotu. On the basis of such definite information, the appellant (therein) reached to inspect the spot, to arrest the suspects and to conduct the search. The search was conducted in violation of section 100 (4) Cr.PC. So, on the peculiar facts and in the special circumstances of that case, it was observed that as the search was part of discharge of his official duty, therefore, sanction under section 197 Cr.PC was

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held to be essential. Similarly, in Sheetla Sahai's case (supra), it was held that “if the offence is relatable to the discharge of official duty of a public servant, then sanction to prosecute him under section 19 of the Prevention of Corruption Act, 1988 is essential.”

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Possibly, no one can dispute with regard to the aforesaid observations. To me, the same would not come to the rescue of the petitioner in the present controversy, as at the same time, it was also observed that “in every offence committed by a public servant, which is not at all relatable to his official duty, no sanction under section 197 Cr.PC is required”.

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As indicated earlier, there are direct allegations against the petitioner that on the fateful day, he had wrongfully restrained the complainant. He became angry, took a danda from his associate and caused grievous/simple hurts with it with full force on the left arm and head (vital part), culminating into fracture and oozing of the blood from the head of complainant. To my mind, taking law into own hands and causing grievous/simple hurts to the complainant on his arm and head, cannot possibly be termed to be an act of the petitioner in connection with or in relation to the discharge of his official duty. Therefore, for such illegal acts, no sanction under section 197 Cr.PC is required, as urged on behalf of the petitioner.

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Sequelly, the other celebrated contentions of learned counsel for petitioner that there are contradictions in the statement of Manjit Singh alias Gollu son of Tara Singh (Annexure P14), the complainant did not prove the entire allegations contained in the complaint (Annexure P7), there is a conflict between the ocular and medical evidence (Annexures P8 to P11), there is a delay in medical examination of the injured-complainant and since the probable defence of the petitioner is proved from the copies of DDRs/statements of other witnesses (Annexures P1 to P6), so, the impugned complaint (Annexure P7), summoning orders (Annexures P12 & 13) and all other subsequent proceedings therefrom, are liable to be quashed, are not only devoid of merit but misconceived as well.

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As legally, no implicit reliance can be placed on the indicated documents produced by the petitioner at this stage, exercising the powers under section 482 Cr.PC. Whether there are contradictions in ocular and medical evidence, whether the petitioner has been falsely implicated, what is the evidentiary value and effect of the documents and whether he has probable defence or not, would be the moot points to be decided, after appreciation of evidence brought on record by the parties during the course of trial by the trial Court.

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As is evident from the record that there are direct allegations against the petitioner that he illegally detained the complainant and caused grievous/simple hurts on his arm/head. The trial court considered the preliminary, oral as well as documentary evidence and summoned the petitioner-accused. Not only that, taking into consideration the entire material on record, the trial Court has charge sheeted the petitioner under sections 323, 325 and 342 IPC, vide separate order/charge sheet (Annexures P15 & P16).

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By now, it is well settled principle of law that if, on the bare reading of the allegations, the offences are made therefrom, no order can be made for quashment of complaint. The criminal prosecution should be quashed in the rarest of the rare cases, only if it is proved that the same was lodged maliciously or vexatiously in order to wreak vengeance and only in that eventuality, the criminal complaint amounts to abuse of process of law and not otherwise, in view of law laid down by Hon'ble Supreme Court in a celebrated case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R. (Criminal) 92. In the instant case, since the elements of malicious or vexatious prosecution are totally lacking, so, to me, no ground to interfere is made out in this relevant connection in the impugned summoning order, which has already culminated in the orders of framing of charges (Annexures P15 & P16).

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Thus, it would be seen that if the nature of accusation, material evidence, legal position and totality of the facts and circumstances of the case, as discussed hereinbefore, are put together, then, to my mind, the conclusion is inescapable that there is an ample evidence on record against the petitioner and no ground for quashing the complaint (Annexure P7), summoning orders (Annexures P12 & P13) and all subsequent proceedings arising therefrom, including the orders framing charges (Annexures P15 & P16), is made out. Therefore, the contrary submissions of learned counsel for petitioner “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances and the ratio of the law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand.

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No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

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In the light of aforesaid reasons, thus seen from any angle and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main complaint case, as there is no merit, therefore, the instant petition is hereby dismissed as such in the obtaining circumstances of the case.

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Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the course of trial of the main complaint case, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant direction.

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9.1.2012 (Mehinder Singh Sullar) AS Judge

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Judge

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Whether to be referred to reporter?Yes/No

Raj Kumar Walia v. Subhash Chand

Case brief

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Raj Kumar Walia v. Subhash Chand

Case brief

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