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2017 Supreme(Raj) 364
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
VIJAY KUMAR VYAS, J.
Baga Ram S/o Shri Sohan Ram – Petitioner
Versus
The State of Rajasthan, through PP – Respondent
S.B. Criminal Revision No. 964 of 2008
Decided On : 04-04-2017
For the Petitioners: Shri N.A. Naqvi and Shri Nawab Ali Rathore.
For the Respondents: Smt. Sonia Shandilya and Shri A.K. Gupta.
Important Point - In the matter of police excesses prior sanction u/s 197 Cr.P.C. is necessary for taking cognizance against such police officials.
Headnote:Criminal Procedure Code, 1973 – Section 197 - Revision has been preferred against order of the Sessions Judge allowing the revision application which quashed and set aside order of the ACJM and held that cognizance against private respondents herein cannot be taken for want of sanction u/s 197 Cr.P.C. and the proceedings pending against them were dropped - Allegation is that the respondents exceeded in exercising their powers during investigation of a criminal case and assaulted the petitioner in order to extract a confession with regard to death of three persons - The petitioner was detained for some days in that connection - The alleged conduct has an essential connection with discharge of the official duty - Magistrate could not have taken cognizance of the case without previous sanction of the State Government - In the matter of police excesses prior sanction u/s 197 Cr.P.C. is necessary for taking cognizance against such police officials - It is made clear that this judgment is only on the issue of sanction - It has not considered the matter on merits and that this judgment shall not stand in the way of the petitioner approaching the State Government for sanction u/s 197 Cr.P.C.
Result - The petition is dismissed.
1. This revision has been preferred against order dated 4.6.2008 passed by learned Additional District & Sessions Judge No. 9, Jaipur City, Jaipur in Criminal Revision No. 13/2008 whereby the revision preferred by private respondents herein, was allowed and order dated 2.4.2008 passed by learned Additional Chief Judicial Magistrate No. 3, Jaipur City, Jaipur was quashed and set aside and held that cognizance against private respondents herein, cannot be taken for want of sanction u/s 197 Cr.P.C. and the proceedings pending against them were dropped.
2. Brief facts necessary for disposal of this petition are that present petitioner/complainant submitted a complaint No. 01/2006) on 02.01.2006 before the Chief Judicial Magistrate, Jaipur City, Jaipur alleging inter-alia that he was serving in Rajasthan Armed Constabulary at Jaipur. He was called for an enquiry in the matter of FIR No. 437/2005, registered at Police Station Manak Chouk pertaining to murder of three persons in departmental store “National Handloom” located at Johri Bazar, Jaipur. He reported for enquiry before police at Police Station Manak Chouk, Jaipur on 9.12.2005. He was kept under custody at various places and was released only on 13.12.2005. During this period, he was subjected to severe beating and torture by police officials for the purpose of extorting confession of committing crime in FIR No. 437/2005. Statement of complainant u/s 200 Cr.P.C. were recorded and thereafter an enquiry report u/s 202 Cr.P.C. was sought for from police. On receipt of police report u/s 202 Cr.P.C. in negative form, statements of other witnesses were recorded by the concerned Magistrate. Thereafter vide order dated 15.3.2007, cognizance was taken for offence u/s 147, 323, 342, 509 and 389 IPC by learned ACJM No. 3, Jaipur City, Jaipur against all the private respondents in the instant petition and one Govind Detha. Regular Cr. Case No. 166/2007 was registered. Four separate revision petitions (Nos. 99/07, 115/07, 116/07 and 129/07) were preferred by eight police officials against whom the cognizance order was passed. The revision petitions were heard by learned Additional District Judge (Fast Track) No. 7, Jaipur City, Jaipur and dismissed on 30.1.2008 with the findings that all the police officials except Govind Detha will have liberty to prefer appropriate application before learned trial Magistrate for protection, if any, available to them u/s 197 Cr.P.C. The revision petition preferred by Govind Detha was allowed and the order of taking cognizance passed against him was quashed and set aside. Pursuant to the order dated 30.01.2008 of Revisional Court, private respondents in the present petition, preferred an application u/s 197 Cr.P.C. before learned ACJM No. 3, Jaipur City, Jaipur on 5.2.2008 which was heard and rejected by the Magistrate on 2.4.2008. Hence, the present Revision has been preferred by the complainant.
3. Learned counsel for the petitioner/complainant submitted that in the instant matter, police officials gave severe beatings and tortured the complainant in order to extort confession. All these acts of police officials cannot be said to be part of their official duty. Learned revision court erred in quashing and setting aside the proceedings pending before trial Magistrate. The act of police officials was to harass and implicate the complainant in a false case. In such a matter, the trial should have been conducted and the defence that accused acted in performance of official duties, be examined during trial. He has placed reliance on Raj Kishor Roy vs. Kamleshwar Pandey & Another, 2002 Cr.L.R. (SC) 673. Learned counsel for the petitioner submitted that the question as to whether the protection u/s 197 Cr.P.C. is available to the accused persons, could be decided, at the most, during trial. There was no occasion at the initial stage to drop the criminal proceedings instituted against the police officials only for want of sanction u/s 197 Cr.P.C. He place
