IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No.525 of 2008 Date of Decision: April 29, 2010 State of West Bengal & Others .....PETITIONER(S) VERSUS State of Punjab & Another .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. A.P.S. Shergill, Advocate, for the petitioners. Ms. Rajni Gupta, Additional Advocate General, Punjab, for respondent No.1. Mr. D.S. Kamra, Advocate, for respondent No.2. . . . AJAI LAMBA, J (Oral) The revision petition has been filed by the State of West Bengal and three persons namely Pradip K. Rakshit, Prabir Kumar Pal and Ashok Kumar. Petitioner Nos.2 to 4 are police officials serving in Calcutta (West Bengal). Challenge in the petition is to order dated 12.1.2008 (Annexure P-1) whereby the Crl. Revision No.525 of 2008 [2] application filed by Pradip K. Rakshit, Prabir Kumar Pal and Ashok Kumar under Section 245 Cr.P.C. for discharge has been dismissed. On perusal of the impugned order, I find that State of West Bengal is not even a party in the lis. The application on which the Trial Magistrate has adjudicated was not filed by the State of West Bengal. In such circumstances, State of West Bengal is neither a relevant party nor necessary party. The Judicial Magistrate Ist Class, Bathinda, vide the impugned order has dismissed the application filed by the above named three persons on the ground that the accused cannot be discharged at this stage as without appreciation of evidence, no conclusion can be formed as to whether the petitioners were acting as public servants and were discharging their official duties or they were acting at the behest of a private person. Reference has been made to the order earlier passed by the High Court in a petition filed under Section 482 Cr.P.C. Although the impugned order refers to the order earlier passed by this Court in petition under Section 482 Cr.P.C, however, the said order has not been placed on record Crl. Revision No.525 of 2008 [3] alongwith the revision petition. The order has been placed on record by respondent No.2 alongwith reply as Annexure R-2/3. On perusal of order passed by this Court while dealing with Criminal Miscellaneous Nos.M-5054 of 2003 and M-9242 of 2003 decided on 26.7.2006 by a common order, it becomes evident that the petitions were filed by the petitioners in this petition, praying for quashing of criminal complaint titled `Sunil Inder Singh vs. Jagdeep Singh & Others’ in which the present impugned order under Section 245 Cr.P.C. has been passed. The grounds taken by the petitioners in the said petitions under Sections 482 Cr.P.C. were that complainant, Sunil Inder Singh is an accused in four FIRs registered in Police Station, Jorasanko, Kolkata. The petitioners were acting in discharge of their official functions as police officials. For investigation of the FIRs, the petitioners had come to Bathinda from Kolkata to effect the arrest of Sunil Inder Singh (respondent No.2 in the present petition). Due process of law was followed. Sunil Inder Singh was subsequently allowed bail by a Court at Kolkata. Sunil Inder Singh had lodged an FIR Crl. Revision No.525 of 2008 [4] bearing No.309 dated 8.7.2000 alleging the commission of offence under various provisions of Indian Penal Code at Police Station, Kotwali, Bathinda. While investigation is still pending, the present complaint has been lodged in regard to the same incident as alleged in the FIR. In the complaint case, petitioners had been summoned to stand trial for commission of offence under Sections 209, 323, 329, 342, 347, 348, 357, 364, 365, 367, 368, 379, 386, 452, 307, 506, 311 read with Section 120-B/34 IPC. The main argument raised before this Court in the petitions under Section 482 Cr.P.C. was that sanction under Section 197 Cr.P.C. was required to be taken in view of the fact that petitioners were acting in discharge of their official duties. Since sanction had not been obtained, therefore, the Court had no jurisdiction. The other arguments were that complaint was belated, and summoning order is non speaking order without application of mind. Since there is chequered history to the case, for reference, the relevant portion of the order passed in Criminal Miscellaneous Nos.M-5054 of 2003 and M-9242 of 2003 is required to be extracted which is as under:- “Learned counsel for respondent No.2, while referring Crl. Revision No.525 of 2008 [5] to the pleadings in the detailed reply, has stated that respondent No.2 is a businessman and was running a unit manufacturing and supplying laminated jute bags to National Fertilizers Ltd., after purchasing the material from Kolkata from one Kirpal Singh (since dead) and one Jagdeep Singh (accused No.1 in the complaint). In certain consignments, the supplied material was sub-standard and the dispute in that regard was amicably resolved but the supplier wielding influence in the State of Punjab, started pressurising respondent No.2 through police personnel into paying for the sub-standard material. In prosecution of such evil designs, respondent No.2 was picked up and was forced to sign blank documents in police compound itself. Respondent No.2 had to approach the civil Court for protection and a civil suit for permanent injunction was instituted seeking an injunction restraining those persons from using coercive methods/police pressure for extracting the disputed amount. The suit, after context, was decreed in favour of respondent No.2 on 15.11.1999. A copy of the judgment is placed on record as Annexure R-2/1. It has further been pleaded in the reply that the said persons had lost limitation for filing a civil suit and faced with the order of the civil Court, adopted a novel method by setting up the transporter of the goods; namely, Harminder Singh, accused No.3 of M/s Punjab Bengal Carrier Private Limited, Kolkata, as a complainant through filing of complaints at Kolkata and getting the same referred u/s 156(3), Cr.P.C., for getting registered four FIRs against respondent No.2 and 12 truck drivers, who were employees of Harminder Singh himself, u/ss 407/120-B, IPC. No move was made to interrogate the employees of the complainant but warrants of arrest were obtained against respondent No.2 although no case u/s 407, IPC, could have been instituted against respondent No.2 as the provisions involved criminal breach of trust by a carrier, etc., while respondent No.2 was the consignee of the goods. It is considering these facts that while granting bail, the Court at Kolkata observed in the following terms:- “Bail moved for the accused stating that there was an injunction order of the ld. Civil Judge, Senior Division, Bhatinda in civil suit no.75 of 1998. There is no material of section 407 of I.P.C. against the accused person because he was not the carrier. According to the petition of complaint, he was the consignee and the defacto complt. Is not the consignor as paras 1, 4 and 6 of the petition of complaint will reveal that the consignor was M/s. Kirpal Singh. So, there is no material of section 407 of I.P.C. against the accused and he may be enlarged on bail. The ld. Chief P.P. (North) submitted that it is a question of law whether 407 of I.P.C. will be attracted or not and he submitted Crl. Revision No.525 of 2008 [6] that if the accused is the consignee according to the petition, then section 407 of I.P.C. is not attracted against them. Perused the complaint. From the paras in the petition of complaint is appears that the consignor was M/s. Kirpal Singh and company and this accused was the consignee. I find sufficient force in the argument of the ld. Lawyer for the accused that accused Nos.2, 3 and 4 are men of the defacto complt. Or M/s Kirpal Singh and they were the drivers. Section 407 of I.P.C. may lie against them but not against this accused. Considering all these aspects, I am inclined to grant interim bail to this accused. Accordingly, accused no.1 Sunil Inder Singh may find interim bail of Rs.5000/- with two sureties of Rs.2,500/- each till 15.2.2000 and with condition to report to the I.O. twice a week until further order and with further condition that he shall not leave Kolkata until further order.” Giving further background, respondent No.2 has further pleaded in the reply that upon his return from Kolkata, he was repeatedly summoned to Kolkata by the petitioners and, therefore, agitated against the illegal acts of the petitioners. FIR bearing No.309 dated 8.7.2000 was registered with P.S. Kotwali, Bathinda (Annexure P-9). The arrest warrant was obtained for the arrest of the Ludhiana based accused at whose instance, the petitioners were abusing their official position. After apprehending the accused from Ludhiana, they were released on the directions of one Shri R.S. Gill, IG (Zonal), Patiala, who is a close friend of Harminder Singh (accused No.2). Constrained with such pressure of police and helplessness, respondent No.2 brought the facts to the notice of the Chief Justice of Punjab and Haryana High Court, Chandigarh. Telegram dated 28.7.2000 is appended with the reply as Annexure R-2/5. The Principal Secretary, Department of Home Affairs and Justice, was also addressed vide letter dated 31.7.2000 (Annexure R-2/6). Although, it was the duty of the police to arrest the accused in FIR No.309, however, respondent No.2 had to move an application (Annexure R-2/7) on 1.8.2000 in the Court of CJM, Bathinda, for directing the police to execute the arrest warrant. While giving details of the inaction on the part of the police and the efforts having been made by respondent No.2 to seek justice, it has been mentioned in the reply that cancellation report was prepared and the arrest warrants were surrendered unexecuted. Detailed reference to facts, documents and allegations against various senior police officers ha been made. Cancellation report filed before the court of CJM, Bathinda, was not entertained and was not Crl. Revision No.525 of 2008 [7] accepted by the CJM and the matter lies at that stage so far as the prosecution of FIR No.309 is concerned. The conduct of the petitioners after the order of summoning had been issued, has been highlighted to say that ever since the summoning order dated 27.3.2001 vide which all the accused were summoned through non-bailable warrants was passed, the petitioners did not appear in the trial Court and, therefore, have scant respect for the process of law. With regard to the offences committed by the petitioners as far as the averments in the complaint are concerned, it has been stated that all through the period from 3.2.2000 till 11.2.2000, the petitioners have been carrying out vexatious criminal proceedings. It has been stated that the petitioners were wearing the cloak of public servants and were doing objectionable acts on the instructions and asking of the private persons/accused in the criminal complaint so as to pressurise respondent No.2 to make payment as per the whims of those private accused. While referring the allegations, it has been stated that the contents of the complaint show that the petitioners were acting as henchmen and there was no reasonable connection between the acts done by the petitioners and discharge of their official duties. The pleadings show that on 4.2.2000 at about 9.30 a.m., the petitioners came to the residence of respondent No.2 and started pressurising him to pay money in respect of the disputed material and on his refusal, assaulted him, snatched his wrist watch and wallet and put a revolver on his chest and beat him up. On raising alarm, they fled. While respondent No.2 was proceeding towards his office to collect documents and to report the matter to the police, the petitioners along with other accused, again, threatened respondent No.2 and bundled him into a vehicle bearing No.PB-10(T)-0186 make Tata Indica, registered in the name of M/s K.K. Jute Traders and Manufacturers (P) Ltd. (i.e. the private accused) and took the respondent to Police Station Kotwali, Bathinda, where he was shown as formally arrested at 1.15 p.m. Transit warrant was obtained for transporting respondent No.2 to Kolkata. It has been pleaded that the Transit Warrant was treated as carte blanche and respondent No.2 has taken from Bathinda to Ludhiana. It has been pleaded that although there were number of trains from Bathinda to Kolkata or from Bathinda to Kolkata via Delhi, yet respondent No.2 was taken to Ludhiana and was handed over to co-accused i.e. the private respondent, who illegally confined respondent No.2, abused him and beat him the whole night. Even thereafter, respondent No.2 was taken by means of Ferozepur-Dhanbad Express on 5.2.2000 at 9.30 p.m. On reaching Dhanbad on 7.2.2000, respondent No.2 was taken by a Taxi to Kolkata which is 700 kms away. Respondent No.2 in these regards has relied on documentary evidence to establish that the petitioners were acting as henchmen of the private accused. Crl. Revision No.525 of 2008 [8] While referring to other documentary evidence/material, it has been stated that the Memo of Arrest itself discloses the number of the car in which respondent No.2 was taken, which shows the involvement of private respondent and establishes that the petitioners were only wearing the cloak of public servants while acting as the musclemen of the private accused. Respondent No.2 was housed in a hotel in Ludhiana. Even the bills and Certificate issued by the Hotel owner has been appended to show that respondent No.2 was taken by the petitioners to Ludhiana at the behest and asking of the private accused.” In the concluding portion of the order, the following has been said:- “Having considered the case of both the sides, I am of the considered opinion that it is not a case wherein, an opinion can be formulated at this stage itself as to whether the petitioners were performing duty in discharge of their official act and not in dereliction thereof. The validity or otherwise of an order of sanction is required to be considered having regard to the facts and circumstances of the case and furthermore, when a contention has to be gone into as to whether the act alleged against the accused has any direct nexus with the discharge of his official act, this Court in these proceedings while taking evidence on affidavit, cannot decide. Accordingly, considering the facts and circumstances of the case and the law as discussed above, no interference is called for under Section 482, Cr.P.C. However, it shall be for the trial Court to examine the question at a later stage while considering the facts and law on the issue as to whether the petitioners were acting as public servants and were discharging their official duties or were acting at the behest of the private accused and were merely henchmen or musclemen and, therefore, were simply wearing the cloak of public servants for doing the objectionable acts. With the above observations, both the petitions are dismissed.” In the impugned order, the Trial Court has dismissed the application for discharge on the ground that the petitioners could not be discharged at this stage. It would be only after appreciation of evidence that a conclusion could be drawn on the issue in question. The contents Crl. Revision No.525 of 2008 [9] of extracted portion above would indicate that in view of peculiar facts and circumstances of the case, the application for discharge is misfounded. This Court has already dealt with the issue in the earlier petitions. The order makes it clear that it would be only after examining the evidence that the innocence of the petitioners can be judged. At this stage, only prima facie case is to be seen which on consideration does not make out a case for discharge of the petitioners. Considering the totality of facts and circumstances of the case as noticed above, no ground for interference is made out. The petition is dismissed. Before parting with the order, I have to observe that the petitioners have been carrying the judicial process at their whims. Complaint was filed as far back as in the year 2001. One or the other petition/ application is filed so as to delay the process. Conduct of the petitioners has been such that they have been able to delay the process of Court on one pretext or the other. In view of the above, the Magistrate dealing with the complaint is directed to proceed with the matter expeditiously. Crl. Revision No.525 of 2008 [10] (AJAI LAMBA) April 29, 2010 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?