Crl. Misc. No. M-9585 of 2008 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-9585 of 2008 (O&M) Date of Decision: July 20,2011 Smt. Urmila Devi ........................................ Petitioner Versus Sh. Yudhvir Singh ................................. Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. Jai Vir Yadav, Advocate for the petitioner. Dr. Balram Gupta, Sr. Advocate with Mr. Manav Bakshi, Advocate for the respondent. ... RITU BAHRI, J. This petition under Section 482 Cr.P.C. is for quashing of order dated 10.3.2008 passed by the Additional Sessions Judge, Panchkula (Annexure P4). The petitioner/complainant-Urmila Devi is a Pharmacist and is serving in ESI Dispensary situated in the premises of HMT Pinjore for the last about 20 years. The complainant is living along with her two daughters and son in official accommodation allotted to her by the dispensary Crl. Misc. No. M-9585 of 2008 (O&M) [ 2 ] authorities in Quarter No.8-4 ESI Dispensary, HMT Pinjore on the first floor. In the same premises, one Maya Rani is living on the ground floor. The petitioner filed a complaint under Section 500 IPC against Smt. Maya Rani on the allegation that she has authored a letter using objectionable and filthy language. The relationship between the petitioner and Smt. Maya Rani has not been cordial. On 20.6.1997, Bir Singh the then Tehsildar Kalka conducted an inquiry by coming to the house of the petitioner. After conducting the search, petitioner was directed to be present in the office on 23.6.1997. When she visited the office she came to know that Smt. Maya Rani had lodged a complaint against the petitioner accusing her of having relationship with one R.C.Chopra, SSI Ambala. Shri R.C.Chopra was also present there. Smt. Maya Rani had initiated a complaint dated 4.6.1997 against the petitioner. After getting a copy of this letter a complaint under Section 500 IPC was filed against Smt. Maya Rani in the Court of Chief Judicial Magistrate, Panchkula. Maya Rani and others were summoned to face the trial in his Court. One day before the evidence was to be recorded in the Court of the Chief Judicial Magistrate on the complaint filed by the petitioner under Section 500 IPC at about 10:00 P.M. Shri R.C.Chopra visited the house of the petitioner. At this time, a team consisting of ASI Onkar Singh, Head Constable Om Crl. Misc. No. M-9585 of 2008 (O&M) [ 3 ] Parkash and two persons with Video Movie Camera entered the house of the complainant in civil dress. They were followed by DSP Mrs. Rajshri Singh. During the investigation, Tehsildar along with SDM, Kalka, entered the house and directed the search of the house. The allegation in the complaint is that they threatened the petitioner/complainant to withdraw the complaint which was fixed for next day for evidence. It is alleged that the SDM had threatened the complainant and Shri R.C.Chopra that if they do not withdraw the complaint they will not remain in service. The allegation in the complaint is that the SDM-accused No.1 threatened the petitioner and Shri R.C.Chopra to withdraw the case against Smt. Maya Rani. Vide order dated 30.7.2001 the Chief Judicial Magistrate, Panchkula, summoned accused No.1 to 10 and 12 to face the trial under Sections 323, 354, 452, 458, 389, 500, 506 read with Section 34 and 120-B IPC. The accused No.1-SDM-cum-SDO (Civil), Kalka, filed an application for recalling the summoning order dated 30.7.2001 (Annexure P2). This application was dismissed on 4.7.2007 (Annexure P3) on the ground that the summoning order had been passed way back on 30.7.2001 and by holding that it would amount to recalling and reviewing the order which was not permissible. A revision was filed against this order before the Sessions Judge who vide detailed order dated 10.3.2008 (Annexure Crl. Misc. No. M-9585 of 2008 (O&M) [ 4 ] P4) accepted the revision petition and set aside the orders dated 30.7.2001 and 17.4.2007 stating that in view of the bar enjoined under Section 197 Cr.P.C. the SDM could not be summoned to face the trial. Mr. Jai Veer Yadav, counsel for the petitioner, has referred to the earlier order dated 30.7.2001 (Annexure P2). After going through the entire facts mentioned in the complaint the Court had come to the conclusion that the acts of accused No.1 to 6 did not fall in the scope and ambit of discharge of duty. There was no occasion to forcibly enter the complainant's house on the fateful night. The complainant was questioned about her relationship with Shri R.C.Chopra. The complainant and Shri R.C.Chopra were harassed by the police officials and accused No. 7 and 8 who had come with Video Movie Cameras further enhanced their harassment. Shri R.C.Chopra was made to take off his clothes in front of other officials. The complainant was examined by a male doctor as per her statement Dr. S.K.Gupta and Dr. Dewan. By no stretch of imagination this was done in the course of performance of official duties. He has relied upon the judgment of the Supreme Court in Choudhury Parveen Sultana v. State of West Bengal and Another (2009) 3 Supreme Court Cases 398 to contend that when an authority vested in a public servant is misused by doing things which are not otherwise permitted under law, Crl. Misc. No. M-9585 of 2008 (O&M) [ 5 ] such acts cannot claim protection of Section 197 Cr.P.C. At the time of summoning of an accused the Magistrate has not to scrutinize the evidence in detail. Counsel for the petitioner cites 1997 (2) R.C.R. (Criminal) 26 (Dev Raj Garg v. State of Punjab) and 2004(7) J.T. 243 (Adalat Prasad v. Rooplal Jindal) to contend that summoning order is an interim order. The accused can be discharged by the Magistrate under Section 245 Cr.P.C after recording the evidence he comes to the conclusion that no case against the accused is made out. Finally he has argued by placing reliance on the judgment of the Supreme Court in Raj Kishor Roy v. Kamleshwar Pandey & Another 2002 (3) R.C.R. (Criminal) 873 that the question of sanction under Section 197 Cr.P.C. can be raised any time after the cognizance, may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. Complaint cannot be quashed at the initial stage on the ground that no sanction under Section 197 Cr.P.C. was taken. The question of sanction should be left to be decided in the main judgment. Mr. Balram Gupta, Sr. Advocate, for the respondent, on the other hand, has vehemently argued that the respondent had received a complaint dated 19.6.1997 (Annexure R1) from Maya Rani in which it was alleged that false complaints have been made against her by Shri Crl. Misc. No. M-9585 of 2008 (O&M) [ 6 ] R.C.Chopra and Smt. Urmila Devi. It was alleged that Smt. Urmila Devi was living in Quarter No.B-4 since 1978 with the person named R.C.Chopra, who is not her husband. Shri R.C.Chopra was married to one Savitri who has a son about 27 years of age. Without divorcing his wife, he is residing with Smt. Urmila Devi. A petition is pending against Shri R.C.Chopra which has been filed by his wife (Smt. Savitri). Three employees of the dispensary where Smt. Urmila Devi is working have been made witnesses. Shri R.C.Chopra and Smt. Urmila Devi have initiated civil suits against these employees. They have given statement to the police that they did not know each other and have no relationship of any type. On this complaint, the SDM marked an inquiry to the Tehsildar. The Tehsildar vide his report dated 30.8.1997 concluded that some facts in the complaint were correct that Shri R.C.Chopra visited the house of Smt. Urmila Devi. The summons for Shri R.C.Chopra were sent on the address of Smt. Urmila Devi. It was concluded that he lives with Smt. Urmila Devi or comes regularly to her house. Shri R.C.Chopra has admitted his relationship with Smt. Urmila Devi. He admitted that a divorce petition is pending with his first wife in Court. Maya Rani is also a quarrelsome lady and it was recommended that both of them may be transferred to different places. After this report, a detailed investigation was marked to DSP Kalka to find out whether Shri Crl. Misc. No. M-9585 of 2008 (O&M) [ 7 ] R.C.Chopra is staying with Smt. Urmila Devi and whether they are staying as husband and wife. In pursuance to this, an investigation was conducted on 26.6.1997 by the investigation team led by DSP Mrs. Rajshri Singh. During investigation, Shri R.C.Chopra was found in the residence of Smt. Urmila Devi. They were medically examined. No case was registered against them and they were not arrested. The respondent acted only within the ambit of his official duties. He has placed reliance on the judgments of the Supreme Court in State of Maharashtra v. Dr. Budhikota Subharao 1993 (2) R.C.R. (Criminal) 482, Abdul Wahab Ansari v. State of Bihar and another AIR 2000 Supreme Court 3187, State of Orissa through Kumar Raghvendra Singh and others v. Ganesh Chandra Jew 2004 (4) J.T. 52, K.Kalimuthu v. State by D.S.P 2005 (4) S.C.C. 512 and Sankaran Moitra v. Sadhna Das & Another 2006 (2) R.C.R. (Criminal) 389 to contend that Section 197 Cr.P.C. should be liberally construed in favour of a public servant. Official duties implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. Once the act committed comes in the four corners of official duty then it must be given a liberal and wide construction so far its official nature is concerned. Crl. Misc. No. M-9585 of 2008 (O&M) [ 8 ] Heard learned counsel for the parties. After going through the facts of the above case, one thing is clear that there was an on-going rift between Smt. Maya Devi and Smt. Urmila Devi. They are both quarrelsome in nature and have been instigating each other on a number of occasions. On a complaint made by Smt. Maya Devi, who is a widow, inquiry was conducted by Tehsildar who concluded that Smt. Urmila Devi was residing with Shri R.C.Chopra without being legally wedded to him. To verify this fact the SDM had referred an inquiry to the DSP. In pursuance to this, a team had visited the house of Smt. Urmila Devi at 10:00 P.M. led by DSP Mrs. Rajshri Singh, ASI Onkar Singh and HC Om Parkash to verify the contents of the complaint made by Maya Devi. Shri R.C.Chopra was found residing with Smt. Urmila Devi. They were medically examined. No case was registered and they were not arrested. In a complaint by Maya Rani it was alleged that a divorce petition was pending between Shri R.C.Chopra and his wife Savitri. Shri R.C.Chopra and Smt. Urmila Devi had given false statements to the police in investigation that they did not know each other at all. The allegation that the SDM was present when the Investigation team visited the house is not being denied. After marking an inquiry, SDM was ceased of the complaint and his presence at best can be an act of omission towards his official duty. It cannot be said Crl. Misc. No. M-9585 of 2008 (O&M) [ 9 ] that his presence was not in the course of his service. The allegation in the complaint that he harassed the complainant Smt. Urmila Devi and Shri R.C.Chopra when the investigating team was doing their work can at best be termed as act of omission while doing official duty. As per the Supreme Court judgment in K.Kalimuthu v. State by D.S.P 2005 (4) S.C.C. 512 it has to be given a liberal and wide construction once it is found that the public servant was discharging his duty. In this judgment, reference has been made to a judgment in Matajog Dobey v. H.C.Bhari AIR 1956 SC 44 wherein it has been observed as under:- “The offence alleged to have been committed (by the accused) must have something to do, or must be related in some manner with the discharge of official duty .... there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” In the facts of the present case, seeing the nature of the complaint, this Court is of the view that there was an on-going rift between the two families who were residing in the same building and had been initiating complaints Crl. Misc. No. M-9585 of 2008 (O&M) [ 10 ] against each other. The petitioner/complainant had initiated a complaint under Section 500 IPC against Smt. Maya Devi in which the evidence was going on. Maya Devi had filed a complaint (Annexure P1) alleging that Shri R.C.Chopra and Smt. Urmila Devi were residing without being legally wedded and were in the habit of quarreling. They had given false statement to the police during investigation that they did not know each other at all. It was only to put an end to the factual dispute that inquiry had been marked by the SDM to verify whether Shri R.C.Chopra was staying with Smt. Urmila Devi and in what capacity. He was seized of the complaint. For all intents and purposes it comes within the official duty. He was present in discharge of his official duty. There is no infirmity in order dated 10.3.2008 passed by the Additional Sessions Judge, Panchkula (Annexure P4). The petition is dismissed with no order as to costs. 20.7.2011 ( RITU BAHRI ) Rupi JUDGE