IN THE COURT OF DR. [ENTITY], ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT, KARKARDOOMA COURTS, DELHI [CASE NUMBER] Date of Institution :16.11.2011 Date of Arguments :03.02.2012 Date of Order :04.02.2012 Sh. [ENTITY] Revisionist Versus [ENTITY] Respondent ORDER
This order will disposed off a revision against the order dated 26.08.2011 passed by Ms. [ENTITY], Ld. M.M., Mahila Court, East District, Karkardooma Courts, Delhi vide which she took cognizance against the revisionist/accused u/[SECTION] of [ACT] (here in after referred to as the Code).
2. I have heard arguments addressed by Ld. Counsel for revisionist, Ld. Additional Public Prosecutor for the [ENTITY] and perused file and trial court record.
3. The impugned order has been assailed on the grounds that it is erroneous as Ld. M.M. has ignored the statements of CW1 & CW2 and father of complainant; Ld. M.M. has ignored the fact that FIR No.98/08 was a counter blast of case FIR No.97/08; that the closure report was filed by the state after proper investigation; that the star witnesses did not support the prosecution case; the provisions of [SECTION] of [ACT] and [SECTION] of the Code and the principles of law as laid down in case Rakesh Kumar v. [ENTITY] (NCT of Delhi), 2010 (116) DRJ 484 provide protection to the revisionist/accused who is a police official.
4. Ld. Additional Public Prosecutor also assailed the impugned order and he submitted that cancellation report by the police was correctly and properly filed.
5. In support of his arguments Ld. Counsel for revisionist relied on provisions of [SECTION] of [ACT] which runs as under:
"140. Bar to suits and prosecutions.-(1) In any case of alleged offence by a police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence. "
6. Ld. Defence Counsel further relied on a case [PRECEDENT] wherein the Supreme Court held that:
"16. The real test to be applied to attract the applicability of [SECTION] is whether the act which is done by a public office and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purports to be performed, the public officer would be protected."
7. Ld. Defence Counsel further relied on a case [PRECEDENT] wherein the Delhi High Court observed that:
"7. Such being the nature of the provision the question is how should the expression, 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M.S. Kochar (1979(4) SCC
177), it was held: (SCC pp. 184-85, para 17) "The words' any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in [SECTION] of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for,' it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of [SECTION], an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."
Use of the expression, 'official duty' implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty."
(Emphasis supplied)
8. Ld. Defence Counsel further relied on a case [ENTITY] v. Sadhna Das & Anr., 2006 (2) RCR (Criminal) 389, wherein the Supreme Court observed that:
"15. Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the [ENTITY] Assembly, that the appellant was in uniform; that the appellant traveled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract [SECTION] of the Code. But as can be seen from the facts disclosed in the counter affidavit filed on behalf of the [ENTITY] based on the entries in the General Diary of the Phoolbagan Police Station, it emerges that on the election day information was received in the Police Station at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties was imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the Officer-in- charge who was stationed at the spot and thereafter a lathi charge took place or there was an attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for illtreatment and he was beaten up by a police constable at the instance of the appellant and the Officer-in-charge of the Phoolbagan Police Station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the General Diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract [SECTION] of the Code. Going by the principles, stated by the Constitution Bench in [PRECEDENT] (supra), it has to be held that a sanction under [SECTION] of the [ACT] is necessary in this case."
9. Ld. Defence Counsel further relied on a case Rakesh Kumar v. [ENTITY] (NCT of Delhi), (supra) wherein the Delhi High Court observed that:
"9. The first and foremost question that arises before this Court is whether the petitioner was acting in his official capacity while the alleged offence was committed by him? In this case admittedly, petitioner was the driver of the crane and had gone to the spot of the incident to remove the vehicle bearing No.DL IV-6092 which was illegally parked on the public road. The presence of the petitioner at the spot was on account of his official duty. Applying the principles laid down in the case of [ENTITY] (Supra) the act of the petitioner can be said to be done in pursuance of his official capacity and while performing duty as a traffic constable. Thus concomitantly, a sanction under [SECTION] of the [ACT] was mandatory so as to institute proceedings against the petitioner. To say that the provisions of [SECTION] of the [ACT] would not apply in the case of the petitioner as the act committed by him was not part of his duty, would be incorrect.
12. I find that the learned Metropolitan Magistrate as well as the learned ASJ have failed to apply their mind and dismissed the application/revision of the petitioner only on the ground that sanction under [SECTION] of the [ACT] was not necessary. In view of the decision rendered in the case of [ENTITY] (Supra), I find that in the facts of this case, the sanction was not obtained within the period of limitation, as per the provisions of [SECTION] of the [ACT]. The offence herein was admittedly committed on 03.01.2002, thus limitation for obtaining the previous sanction of the administrator for institution of the criminal prosecution under [SECTION] of the [ACT], expired on 02.01.2003. The challan in this case was filed in the court by the prosecution on 12-13.5.2003 without obtaining the previous sanction from the administrator. The sanction for institution of criminal proceedings was obtained on 23.09.2003. Thus it is crystal clear that the sanction for prosecution was obtained well after the period of limitation was over. It has been held by the Apex Court in the case of Manjula Sinha v. [ENTITY] of UP & Ors., 2007 [3] JCC 2054, that if the Court comes to the conclusion that continuance of proceedings would amount to an abuse of the process of the Court and quashing all the proceedings would serve the ends of justice, the proceedings should not be continued.
13. Having considered the fact that on account of the basic lacunae, the complaint is not likely to succeed, there would be no useful purpose in keeping the same pending. In the facts and circumstances of this case and having regard to the provisions of [SECTION] of the [ACT]; taking into consideration that the mandatory requirement of sanction was not fulfilled; and also the fact that respondents had filed the sanction but beyond the period of limitation, hence there exists no sanction in the eyes of law, accordingly, this petition deserves to be allowed. Consequently, order dated 13.07.2004 passed by the learned Metropolitan Magistrate and order dated 30.10.2004 passed by the learned Additional Sessions Judge, Delhi, in [CASE NUMBER] under [SECTION] [ACT], are set aside and proceedings quashed against the petitioner."
10. The facts which are necessary for disposal of present revision are that on 10.05.2008 at about 5 / 5:30 p.m. at Surya Nagar red light signal traffic police was present there and two of them got the vehicle of complainant [ENTITY] stopped and started preparation of challan on the ground that her vehicle was at over-speed. She offered Rs.400/- and asked the police to permit her to leave. Another traffic police official Mr. [ENTITY] seeing her at bad eyes came there and started talking in bad manner and manhandled her when her brother tried to save her, 4-5 more police official assaulted her and in the meantime her gold chain and mobile were disappeared. The public gathered there and the police official pushed her back side by putting hands on her breast and also abused her. She reported the matter and a FIR u/[SECTION] [ACT] was registered against Sh. [ENTITY].
11. Turning to the case in hand I find that the offence alleged against accused was committed when he was discharging his duties as a Sub Inspector therefore it was necessary for the prosecution to obtain sanction for his prosecution. Admittedly no sanction for prosecution was applied or obtained. Rather the police filed a final report/cancellation report as per provisions of [SECTION] [ACT] as the evidence against the accused was deficient. The proceedings of Ld. M.M. shows that complainant was even not traceable. The principles of law laid down in cases Rakesh Kumar v. [ENTITY] (NCT of Delhi), (supra), [PRECEDENT] (supra), [PRECEDENT]., (supra), [ENTITY] v. Sadhna Das & Anr., (supra), and provisions of [SECTION] of [ACT] and [SECTION] of [ACT] provide benefit/protection to the accused. Ld. M.M. did not consider this aspect in the impugned order. In the absence of sanction for prosecution u/[SECTION] of the Code, it was not just fair and legal for Ld. M.M. to take cognizance against the accused/revisionist. Therefore, the impugned order cannot be termed as an order beyond any inaccuracy, incorrectness or illegality or impropriety. Therefore, impugned order is set aside. Accordingly, the revision petition is allowed.
12. Trial court record be returned along with copy of this order.
13. Revision file be consigned to Record Room. Announced in the Open Court on 04.02.2012 (DR. [ENTITY]) Additional Sessions Judge-02,East Karkardooma Courts, Delhi