_L w^ ^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR lliofc fft-^-s Cr . M.P. ^/ /2008 APPLICANT _ro^/o<g P.R. HB. Pr«»!£-!t'.^>- ?^l4 Baf<.....^^^^. 3_r. o/c6t< RESPONDENTS ; ^ cv? ABDUL SALEEM © MUNNA S/o Abdul Rauff, aged about 32 years, R/o Sindhi Colony, Chakradhar Nagar, Raigarh (C.G.) VERSUS STATE OF CHHATTISGARH. Through -Police station R.P.F. District: Raigarh (C.G.) (not mentioned in order sheet) Qjp^ 2 SAYYEb NIHAL AKHTAR. oW^ Station In-charge, R.P.F. Raigarh. ^.^^ 3. M.K. MUKHERJEE Sub-Inspector, ^^6 R.P.F. Raigarh. 4. AJAV SHARMA, Constable. R.P.F. Raigarh. PETITION UNDER S6CTION 48^ OF THE CRIMINAL PROCECECURE CObE :.f^-^^ ^-p^ (S) HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. JusticePritinker Diwaker) Cr. M. P. No. 46 of 2008 APPLICANT Abdul Saleemalias Munna VERSUS RESPONDENTS State of Chhattisgarh and others. Post for pronouncement of the order on ^.7.2010 Sd/- Pritinker Diwaker Judge ^' HIGH COURT OF CHHATTISGARH ATBILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr.M.P.No.46of2008 APPLICANT Abdul SaleemaliasMunna VERSUS RESPONDENTS State of Chhattisgarh and others Shri Gurudeo Sharan counsel for the applicant. Shir Vivek Sharma PL for respondent No. 1/State. Shri Sourabh Dangi counsel for respondents 2 to 4. PETITION UNDER SECTION482 OF THE CODE OF CRIMINAL PROCEDURE. ORDER (5^.07.2010) This petition is directed against the order dated 24.9.2007 passed by Sessions Judge, Raigarh in Criminal Revision No. 51/2006 affirming the order dated 9.3.2006 passed by the Chief Judicial Magistrate, Raigarh ih Criminal Case No. 211/2003 by which the respondents 2 to 4 have been discharged under Sections 323 and 452 IPC. 2. Facts of the case in brief are that on 26.11.1999 a complaint case was filed by the applicant againstthe respondents 2 to 4 for registration of thecase against them under sections 294, 323, 506-B and457/34 IPC. It is alleged that on 3.5.1999 at about 10.30 p.m. respondents 2 to 4 had entered his house and respondent No. 2 had put his service revolverin his mouth and also abused him. It isalleged that cousin of the complainant was taken by the respondents 2 to 4 to the police station where he was made naked and beaten brutally.It is alleged that the accused persons had demanded money from the cousin of the complainant.It is alleged that one false case has been registered against the complainant vide Crime No. 12/1999 under section 3-A ofthe Railway Property (Unlawful Possession) Act in which bail was granted to him on 21.5.1999. 3. In support of his case the complainant got recorded the statements of his witnesses under Section 200 of the Code of Criminal Procedure and after taking cognizance of the complaint case, the Court betow issued K M"\ .^e ^ R •M^/'^^' -gp^^?^ w^ iiiir'-;:' Slj.: ;E' ^' ^y^ ^Q ^ notices to respondents 2 to 4. In the said complaint case on 13.10.2003 | an application was filed by the respondents 2 to 4 under Section 197/245 i of the Code of Criminal Procedure for their discharge inter alia stating therein that the entire act attributed to them was done whileclischarging their official duty and as the Crime No. 12/1999 was reglstered against i the complainant also, entire exercise to file a falsecomplaint againstthem ; has been done by him. In this application it is contended by the respondents 2 to 4 that in the incident of which a reference has been given in the complaint a case was registered against him and ultimately he has been convicted vide judgment and order dated 21.2.2003 under section 3-A of the Railway Property (Unlawful Possession)Act. The above application was considered bythe learned Magistrateon 9.3.2006 who in the facts and circumstances of the case had discharged the accused persons and theirapplicatiQn filed under Section 197/245 ofthe Code of Criminal Procedure was allowed. This order of the Magistrate was challenged by the complainant in revision which by the order | impugned came to be dismissed and the discharge order passed by the Magistrate has been affirmed by the revisional Court. | 4. Counsel for the applicant submits that the application filed by the respondents 2 to 4 was premature and the Court below ought to have I recorded the statements of the witnesses and after cross-examination it should have decided the point whether the act of the respondents 2 to 4 , wasin discharge of the official duty or it was merely an individual act. He submits that the manner in which the complaihant has been terrorized by ! respondents 2 to 4 cannot be termed as the act done by them in discharge of their official duty. He submits that the application filed by | respondents 2 to 4 has been decided in a very mechanical manner and without even summoning the record of Crime No. 12/1999 and without l even completing the legal formalities required therefor. He ptaced reliance on the decision of Supreme Court in the matter of Kalimuthu v. State reported in 2005 Cri. L.J. 2190 and on the decision of Andhra Pradesh High Court in the matter of S. A. Azeez v. Pasam Hari Babu andanother reported in2003 Cri.L.J. 2462. 5. Replying to the arguments advanced by the counsel for the 1 applicants it is submitted by the counsel for respondents 2 to 4 thatthe i act done by the respondents 2 to 4 was in discharge of their official duty m^', .:l<i,^':. :'^^-^ ^'t. \'-".':u^. !e*?1 ii§3 IB ^•—•! -3 @ and the complaint case is nothing but a counter blast just to settle the score and ensure that they may not speak againstthe complainant in Crime No. 12/1999. He submits that admittedly the incident tobk place on 03.05.1999, complainant was arrested by the police and produced before the Magistrate but no complaint whatsoever was made by him beforethe Magistrate that he was subjected to the act as alleged by him in the complaint. He submits that the complainant kept quiet for about six months and then all of a sudden he has come forward with the complaint against the respondents 2 to 4 which prima facie appears to be nothing but an after thought. He submits that the case which was registered j against the complainant on 03.05.1999 ultimately led to hisconviction by the judgment and order dated 21.02.2003 undersectionS-A of the Railway Property (Unlawful Possession) Act. He submits that the; application under section 197/245 Cr.P.C. can be filed at any stage and j there is no bar for the Court to entertain the same. Moreover, he submits that before taking cognizance on the complaint the prosecution has not obtained sanction fromthe competent authority and on this count also the : Court below was justified in discharging the respondents/accused. He ] submits that the order of the Magistrate and the revisional Court arein j accordance with law and in a petition under section 482 Cr.P.C. such a well reasoned order cannot be subjected to unnecessary interference. He placed his strong reliance on the decisionof Supreme Court in the matterof State of Orissa and others v. Ganesh Chandra Jew reported in AIR 2004 SC 2179; in thematter of State of Bihar v. Kamla Prasad Singh and others passed in Criminal Appeal No. 769/1989 and in the matter of K. M. Mathew v. State of Kerala and another reported in AIR 1992 SC 2206. He submits that if the Government Officials are not afforded proper protection in discharge oftheir official duty, they will continue to be exposed tosuch vexatious andmalicious prosecution. 6. From the record it appears that the instant complaint was filed on 26.11.1999 whereas the incident is alleged to have taken place on 03.05.1999, complainant was arrested by the police and produced before the Magistrate but no complaint whatsoever was made by him before the ; Magistrate that he was subjected to the act as alleged by him in the | complaint. Record also shows that complainant kept quiet forabout six 1 ^:^^^-^ y^ '"^ ;::ji~^5.-1'11 ^ ;^'- ^^- 1»;. -4- months and then all of a sudden he has come forward with the present complaint against the respondents 2 to 4 which prima facie appears to be nothing but an after thoyght. Moreover, the sanction as required under section197 ofthe Cr.P.C. has also not been obtained by the pFosecution before taking cognizance of the complaint made by the complainant. Thus, the order passed by the Magistrate discharging therespondents 2 to 4which has beenconfirmed in revision by the order impugned have been passed after elaborately considering each and every aspect ofthe matter and the same cannot be subjected to be interfered with in a petition undersection 482 ofthe Code of Criminal Procedure. 7. Accordingly the petition has no force and the same is hereby dismissed. Order impugned is affirmed; 1 Sd/- Pritinker Diwaker Judge .1113;;;: