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IN THE HIGH COURT OF ALLAHABAD
UMESH CHANDRA SHARMA, J.
Deepak Kumar - Applicant
Versus
State of U.P. and Another - Opposite Parties
Application U/S 482 No. 32791 of 2022
Decided On : 18-04-2023
Indian Penal Code, 1860 - Sections 147, 323, 504, 452, 342, 420, 467, 468, 471 – Criminal Procedure Code,1973 - Section 161 - Offence of Cheating – Rioting – Intentional insult with intent to provoke - Charged- Lodged an FIR on about offence committed between 10:00 p.m. and 02:00 a.m. in night at Crime No. that he was deputed duty as guard in the night. Were also on duty - At about 11:15 p.m. a person in simple dress came with 6-7 persons in police uniform crossing the main gate of the residence of District Judge as it was locked - He ran towards gate and saw that two constables were cutting sandal wood already lying on earth and some constables and SSI was keeping the in police jeep in drunken condition - When he forbidden, leaving wood, carried guards, abused them and ran away- Guard and commander informed R.I. at once at about 01:00 am - Both chaukidars returned and informed that SSI and other constables had abused and beaten them by sticks in which they have received injuries - Whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty -In the case of an act of a policeman or any other public servant unconnected with official duty there can be no question of sanction - However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if policeman has exceeded scope of his powers and/or acted beyond the four corners of law. [Para 73]
Finding of Court : If accused was discharging official duty when alleged incident took place or alleged incident was reasonably connected with discharge of official duty, previous sanction for prosecution of a public servant under Section 197 CrPC would be mandatory but if offence ought to have been committed by accused is entirely outside of scope of duty of a police official, there would not be any requirement of prior sanction - Applicant is denying commission of alleged crime in which opposite party no.2 has received injuries and FIR had also been lodged in due course and only on basis of submission of two affidavits, one and another, final report was produced ignoring the statement and injuries sustained , opposite party no.2 - Only on basis of status of applicant that he is a police officer, he cannot claim exemption - Protection under Section 197 CrPC is available only when alleged offence had been committed in connection of discharge of official duty in due course- Court is of view that there is no nexus or connection between official discharge of duty by applicant and alleged commission of crime, hence, there was no need for taking prior sanction - Court is also in conformity with conclusion of learned Trial Court - Court does not find alleged occurrence having any connection with discharge of official duty entrusted to applicant - There would be no need of prior sanction before taking cognizance and passing the impugned summoning order.
Result : application under Section 482 CrPC is dismissed accordingly.
JUDGMENT :
1. Heard Sri R.K. Saxena, advocate holding brief of Sri Mukesh Kumar, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned AGA for the State and Sri Surendra Kumar, learned counsel for opposite party no.2.
2. This application has been filed to quash the entire proceedings of Misc. Case No.817 of 2020 (State Vs. Mahesh Kumar) arising out of Case Crime No.595 of 2018, under Sections 147, 323, 504, 452, 342, 420, 467, 468, 471 IPC, Police Station Fatehgarh Kotwali, District Farrukhabad pending in the Court of Chief Judicial Magistrate, Farrukhabad as well as the impugned summoning order dated 07.08.2022.
3. In brief, facts of the case are that Constable 1107 CP Mahesh Kumar posted at the residence of District Judge, Fatehgarh, Farrukhabad lodged an FIR on 23.07.2018 at 10:10 a.m. about the offence committed on 22/23.07.2018 between 10:00 p.m. and 02:00 a.m. in the night at Crime No.595 of 2018, under Sections 147, 323, 504, 452, 342 IPC that he was deputed duty as guard in the night of 22.07.2018 from 10:00 p.m. to 02:00 a.m. Chaukidar Sudhis Kumar and Pankaj Yadav were also on duty. At about 11:15 p.m. a person in simple dress came with 6-7 persons in police uniform crossing the main gate of the residence of District Judge as it was locked. He ran towards the gate and saw that two constables were cutting the sandal wood already lying on the earth and some constables and SSI Deepak Kumar was keeping the chaukidars in police jeep in drunken condition. When he forbidden, leaving the wood, carried the guards, abused them and ran away. Guard and commander informed R.I. at once at about 01:00 am. Both the chaukidars returned and informed that SSI Deepak Kumar and other constables had abused and beaten them by sticks in which they have received injuries. During the course of investigation informant Mahesh Kumar filed an affidavit to S.P. Fatehgarh denying the contents of his FIR. Chaukidars Sudhis Kumar and Pankaj Yadav stated in support of the prosecution in their statement under Section 161 CrPC.
4. After investigation, the investigating officer submitted final report to the effect that no independent and corroborative piece of evidence was available. Injured opposite party no.2, Pankaj Yadav filed protest petition which was accepted and the final report was rejected on 07.08.2022 and cognizance has been taken against the applicant under Sections 147, 323, 504, 452, 342, 420, 467, 468, 471 IPC. It has also been directed that the case would run as State case.
5. The injury report of opposite party no.2, Pankaj Yadav is on record which discloses four injuries, two as contusion and two injuries as complaint of pain.
6. Before the aforesaid FIR, an FIR under Section 379 IPC had been lodged by Sri Mohammad Ibrahim, Central Nazir, Civil Court, Farrukhabad regarding cutting of two sandal trees against the unknown thieves.
7. The applicant has taken ground that as per affidavit of Constable Mahesh Kumar (informant), the applicant was not seen at the place of occurrence. Though the injured Pankaj Yadav has supported the prosecution version. The investigating officer has submitted the final report as he found no offence against the applicant and he exonerated him from the aforesaid offence. The applicant is a government servant and police officer. Hence, prior sanction for initiating the prosecution against him was required under Section 197 CrPC which has not been taken from the concerned department. Opposite party no.2, Pankaj Yadav himself managed the injury report in his favour which are simple in nature. The applicant never made any forged signature of opposite party no.2 and his companion Shudhis Kumar but without calling a report from expert, the Magistrate summoned the applicant under Sections 420. 467. 468, 471 IPC in summary manner which is not permissible in law.
8. After submission of the final report, a right to defend his case was accrued to the applicant but without issuing any notice and without giving oppor
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