The main legal point established in the judgment is the necessity of sanction for prosecution as envisaged by Section 197(2) of the Code of Criminal Procedure, 1973, and the determination that the continuation of the prosecution constituted an abuse of the process of the court.

JUDGMENT :

1. Rule. Rule made returnable forthwith. With the consent of the learned Counsel for the parties, heard finally.

2. This Petition under Article 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, is preferred to quash and set aside the order of issue of process for the offences punishable under Sections 342 and 385 of the Indian Penal Code by the learned Judicial Magistrate, First Class, Pune, in RCC No.43236 of 2016 filed by the Respondent No.2 – complainant.

3. The background facts leading to this Petition can be summerized as under :

3.1 The Petitioner was working as a Police Head Constable at Anti-Dacoity Squad, Crime Branch, Pune. Respondent No.2 – complainant alleged that on 7 October 2016 at about 9.00 a.m., the Petitioner – accused No.1 had apprehended the Complainant at Nana Peth and took him to the office of the Anti-Dacoity Squad, Crime Branch, Pune. The accused No.1 allegedly demanded a bribe of Rs.2 Lakhs to release the Complainant, lest he would be implicated in a crime. As the Complainant expressed his inability to meet the unlawful demand, the accused No.1 confined the complainant in the said office and on 8 October 2016, the accused No.1 registered a crime at C.R. No.435 of 2016 falsely alleging that the complainant and co-accused Tejas and Sayed were found in possession of arms and thereby committed the offences punishable under Sections 7 read with 25 of the Arms Act, 1959 and Section 37(1) read with Section 135 of the Maharashtra Police Act, 1951,

3.2 Investigation was handed over to Mr. B.D. Kadam – accused No.2. The complainant alleged, neither the relatives of the complainant were informed about the arrest of the complainant, nor the complainant was produced before the Magistrate within 24 hours. It was only on 9 October 2016, the complainant was produced before the learned Magistrate.

3.3 Thus, the complainant had lodged a complaint before the learned Magistrate along with an Affidavit alleging illegal detention and wrongful confinement. The learned Magistrate directed the Complainant to take appropriate action. Thereupon, the complainant filed a complaint with Bund Garden Police Station and superior Police Officers. However, no action was taken. Hence, the complainant was constrained to lodge a private complaint before the learned Judicial Magistrate, First Class, Pune.

3.4 After recording verification statement of the complainant, and considering the material on record, the learned Magistrate was persuaded to issue process against the Petitioner alone for the offences punishable under Sections 342 and 385 of the Indian Penal Code.

3.5 The learned Magistrate was of the view that the allegations against the accused No.2 were in relation to the performance of his official duties and for want of sanction by the competent authority, he could not be proceeded against. On the contrary, the acts attributed to the accused No.1 did not form part of his official duties and, therefore, the learned Magistrate took cognizance of the offences punishable under Sections 342 and 385 of the Indian Penal Code.

3.6 The Petitioner – accused No.1 has invoked the writ jurisdiction of this Court. The legality and correctness of the impugned order is assailed on two counts. First, there was no material on the basis of which the cognizance of the offences punishable under Section 385 of the Indian Penal Code could have been taken as in the complaint and affidavit, which the complainant had filed before the learned Magistrate on 9 October 2016, there was no allegation of alleged extortion. The said allegation was a creature of afterthought and made only with a view to falsely rope in the Petitioner who had arrested the complainant in discharge of his official duties and, therefore, the prosecution amounted to abuse of the process of the court.

3.7 Second, in any event, the alleged wrongful confinement and illegal detention of the complainant was in the course of the official duty o