IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 171 of 2008 U.R. Arya. ………. Revisionist. Versus State of Uttarakhand and another. ..…. Respondents Present : Sri D.K. Sharma and Ms. Shivangi Gangwar, Advocate for revisionist. Sri. P.S. Bohara, Brief Holder for the State. Mr. Siddharath Sah, Advocate for respondent no. 2. Hon’ble Servesh Kumar Gupta, J. 1. By way of this Criminal Revision filed by revisionist under section 397, 401 Cr.P.C., the prayer has been made to set aside the order of cognizance dated 05.05.2003 and order of framing of charge dated 04.09.2007 in Criminal Case No. 949 of 2005 Jagdish Singh Vs. S.O. Police U.R. Arya and others, under section 330, 342 IPC. 2. Having heard learned counsel for either of the parties, it appears that revisionist, at the relevant time, was posted as Station Officer, Police Station Nanakmatta, District Udham Singh Nagar and occurrence took place within the territorial jurisdiction of his Police Station on 2/3 February, 2003 disclosing the offence under section 394 IPC against four unnamed persons, the FIR was lodged by one Bhagat Singh at Police Station on 04.02.2003 at 01.15 a.m. Being the overall Incharge to maintain the law and order in the territory of his police station, he tried to work out the said incident of robbery and in order to achieve the purpose, he summoned Jagdish Singh at Police Station on 08.02.2003. Jagdish Singh along with his father came to the Police Station on 08.02.2003 at 10.20 a.m. and after interrogation, he was sent off from the Police Station. 2 In this regard, entries in General Diary were made, copies whereof are annexure no. 3 to the revision. Contrary version which was made the basis of filing complaint by Jagdish Singh against revisionist is that on 06.02.2003 at about 12.00 in the night, revisionist along with Sub Inspector Malkeet Singh came to his house, they waked him up and exerted pressure for admission of the occurrence, as stated above. On denial, he was made to sit in the police vehicle and brought to the Police Station Nanakmatta, where he was pressurized by coercive means. On rendering resistance, he was abused and beaten brutally by police personnel. Next day, when kith and kin of Jagdish Singh went to the Police Station to know his whereabouts, the police allowed him to leave the Police Station. Jagdish Singh got himself medically examined on 08.02.2003 at 03.30 p.m. in Primary Health Centre, Khatima and filed complaint on dated 24.03.2003 i.e. almost one and half month after the medical examination in the court of Judicial Magistrate, Khatima. The Magistrate after recording the statement of the complainant under section 200 Cr.P.C. and his wife Surendra Kaur and one Amarjeet Singh under section 202 Cr.P.C. passed the order of cognizance on 05.05.2003 against revisionist and one another Sub Inspector Malkeet Singh for the offence under section 330, 342 IPC. 3. Since the case was in the nature of warrant trial, hence, statements under section 244 Cr.P.C. were recorded and before permitting the court to frame charge, revisionist raised plea for discharge on the basis of want of sanction under section 197 Cr.P.C. which is a pre-requisite for launching prosecution against a public servant. The Magistrate, after hearing the pros and cons, did not accede the contentions of 3 revisionist and was of the opinion that the said contention can be considered only after recording the evidence in full. 4. Feeling aggrieved, this composite revision has been filed challenging not only the order of Magistrate dated 04.09.2007 to frame the charges but also the initial order of cognizance dated 05.05.2003. 5. Learned counsel for the respondent no. 2 has relied upon the precedent of Hon’ble Apex Court in the case of Adalat Prasad Vs. Rooplal Jindal and others reported in 2004 SCC (Cri.) 1927 with the contention that order of cognizance, being passed on interlocutory stage, can be challenged only by way of filing petition under section 482 Cr.P.C. before the High Court and not by way of filing revision. This contention is not tenable at all because firstly, it has nowhere been the ratio of Adalat Prasad’s case that the order of issuing process under section 204 Cr.P.C. is of interlocutory nature. Rather, that question was not gone into by the Hon’ble Apex Court in the said precedent. In a galaxy of judgments, this question has been adjudicated by the Hon’ble Apex Court, few of the judgments can be cited as below: i. In the case of M/s Bhaskar Industries Ltd. Vs. M/s Bhiwani Denim reported in 2002 (1) J. Cr. C. SC 27, the Hon’ble Apex Court while constructing terms “interlocutory” has held that interdict contained in Section 397 (2) Cr.P.C. is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The 4 safe test laid down by this Court through a series of decisions is this: if the contention of the petitioner who move the superior court in the revisions, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage. ii. In another precedent, Dhariwal Tobacco Products Ltd. Vs. State of Maharastra, passed in criminal appeal no. 2055 of 2007 decided on 17.12.2008, arising out of SLP (Cri.) No. 2272 of 2007, the Hon’ble Apex Court unequivocally has held that indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This court in a large number of decisions beginning from R.P. Kapoor Vs. State of Punjab AIR 1960 SC 866 to Som Mittal Vs. Govt. of Karnataka 2008 (3) SCC 574, has laid down the criterion for entertaining the application under section 482 Cr.P.C. Only because a revision petition is maintainable, the same by itself in our considered opinion, would not constitute a bar for entertaining an application under section 482 of the Code. 6. As regards to the filing of revision straightaway under section 397 / 401 Cr.P.C. before this Court is concerned, there is no mandate of any law that party should first go to the Sessions Judge because provisions of section 397 Cr.P.C. as well as section 401 Cr.P.C. both envisage the parallel and equivalent power of Sessions Judge as well as High Court. Therefore, in 5 view of the above, this Court is of the view that revisionist cannot be directed to first approach to the Sessions Judge under section 397 Cr.P.C. He can straightaway approach the High Court to invoke powers of this Court under section 401 Cr.P.C. and that is what has been done by this revisionist in the instant case. 7. Another controversy, which is to be adjudicated upon, in this revision is regarding applicability of section 197 Cr.P.C. Learned counsel for the respondent no. 2 has relied upon the precedent of Hon’ble Apex Court in the case of Raj Kishor Roy Vs. Kamleshwar Pandey and another reported in 2002 Cr. L J 3780. In that case also there was a complaint against police officer alleging that police officer has falsely implicated him and had also falsely shown that illegal weapon was recovered from him, then quashing the order of cognizance by the High Court for absence of sanction to prosecute was held to be improper. In such cases, question whether accused officer had acted in official course of duty or not and whether “therefore” sanction is necessary or not should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. 8. Per contra, learned counsel for the revisionist has placed reliance upon the judgment of the full bench of Hon’ble Apex Court including the Chief Justice of India, in the case of Sankaran Moitra Vs. Sadhna Das and another reported in 2006 (4) SCC 584. It was also complaint case against police officer where the requirement of sanction under section 197 Cr.P.C. and stage for raising such question was considered. In that case, complaint contained that deceased a supporter of political party was beaten to death by police personnel at the instance of police officer near a polling booth on election day. 6 He had reached the spot on receiving information regarding some disturbances at the polling booth then, the Hon’ble Apex Court was of the view that police officer committed the act in question during the course of performance of his duty and sanction under section 197 (1) Cr.P.C. was necessary for his prosecution. The Hon’ble Apex Court set aside the contrary view taken by the High Court and held that High Court’s reasoning that killing of a person by use of excessive force could never be performance of duty, not proper. 9. In the instant case, the revisionist was also a police officer. His first and foremost duty to maintain law and order within the territory of his Police Station as well as to work out any occurrence of offence. Under Section 160 Cr.P.C., the Investigating Officer has powers to summon any person for interrogation to the Police Station. In this regard even he can issue a direction in writing. When the FIR of the incident, which occurred within the territory of Police Station Nanakmatta, was lodged, then it is the bounder duty of the SHO or the Investigating Officer to make every endeavour to sort out the perpetrators of the crime. It reveals from the perusal of the GD of the Police Station dated 08.02.2003 that complainant Jagdish Singh was called to the Police Station. So in the backdrop of criminal antecedents it was not unusual for the revisionist U.R. Arya to call the opposite party no. 2 for interrogation to detect the occurrence of crime in his area. He came along with his father and after being interrogated for almost half hour, he was sent off from there. Calling Shri Jagdish Singh at Police Station fortiori was not undesirable because he had a criminal history within the knowledge of police, as disclosed in the urgency affidavit dated 08.08.2011 filed by revisionist U.R. Arya in this Court. That criminal history is as below: 7 a. Case Crime No. 97/93 under section 25 Arms Act, P.S. Nanakmatta. b. Case Crime No. 96/93 under section 307/504 IPC, P.S. Nanakmatta. c. Case Crime No. 70/97 under section 25 Arms Act, P.S. Nanakmatta. d. Case Crime No. 71/97 under section 60 Excise Act, P.S. Nanakmatta. e. Case Crime No. 647/03 under section 494, 498A, 506 IPC and ¾ D.P. Act, P.S. Nanakmatta. 10. The version of the complainant Jagdish Singh does not inspire confidence, for the reason that all the injuries allegedly inflicted upon his body by the police officer are very shallow and superficial in nature. Had he been given violent beating by the police officer along with constables then injuries would have been much more, than, as has been adverted in the medical examination. 11. This court is also of the view that if the criminal complaint case instituted by Jagdish Singh with all exaggerated version coupled with embellishments is permitted to remain the basis for this rigmarole trial of him then moral of a police officer will be so shattered, as to make him entirely defunct to respond his duties. 12. In view of the above, this revision has merits. Revision is allowed. Accordingly, the order of cognizance dated 05.05.2003 passed by Magistrate as well as order dated 04.09.2007 passed by Special Judicial Magistrate finding the case fit for levelling charge against the revisionist, are hereby quashed. (Servesh Kumar Gupta, J.) 22.09.2011 SKS