CRR-3948-2013 1 IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH Date of decision : 08.05.2014 1.
CRR-3948-2013 Constable Bohar Singh ..Petitioner Versus Shamsher Singh and another ..Respondents 2.
CRR-72-2014 Ajaib Singh ..Petitioner Versus Shamsher Singh and another ..Respondents CORAM: HON'BLE MRS.JUSTICE REKHA MITTAL Present: Mr.R.S.Rai, Senior Advocate with Mr.Gautam Dutt, Advocate for the petitioner(in both petitions).Mr.R.K.Girdhar, Advocate for respondent No.1(in both petitions) Mr.Neeraj Sharma, AAG, Punjab(in both petitions) REKHA MITTAL, J.(ORAL) By way of this order, I shall dispose of CRR-3948-2013 “Bohar Singh versus Shamsher Singh and another”.
and CRR-72-2014 “Ajaib Singh versus Shamsher Singh and another”.
as these have arisen out of the same judgment dated 03.12.2013 passed by the Additional Sessions Judge, Sr.Muktsar Sahib and identical questions of law and facts being involved for adjudication.
For the sake of convenience, facts are taken from CRR-3948- Davinder Kumar 2014.05.20 11:01 I attest to the accuracy and integrity of this document CRR-3948-2013 2 2013.
Shamsher Singh complainant (respondent) initiated the criminal proceedings against Constable Bohar Singh, Head Constable Ajaib Singh, Head Constable Satpal Singh (since deceased) and ASI Hukam Chand by filing a criminal complaint for offence punishable under Sections 323, 324, 342, 427, 506 read with Section 34 of the Indian Penal Code (in short 'IPC').It was alleged that the complainant is a taxi driver by profession and resident of Bhullar Colony Sr.Muktsar Sahib.
He along with his brother Gurjit Singh owns two caRs.indica bearing registration No.DL3CP-7256 and second bearing No.PB10-AL-4142.
On 23.02.2006, the complainant came back from Amritsar after dropping the passengeRs.Ajaib Singh Head Constable, Bohar Singh Constable and Satpal Singh Head Constable came at Malout road, Ajmer Palace and directed him (complainant) to take them to Ferozepur but the complainant said that he was tired as he had come back after dropping the passengeRs.The aforesaid persons threatened him that they would see how he would not take them to Ferozepur and started calling bad names and used filthy language.
They gave merciless beatings to the complainant.
He suffered injuries on his arMs.back of chest, wrist, finger and blood started oozing from his eyebrows.
On his rising commotion “Mar Dita Mar Dita”., Gurjit Singh and Gurbachan Singh separated them.
After 10/15 minutes, one police Zipsy came on the spot and took the complainant and Gurjit Singh to City Police Station Sr.Muktsar Sahib.
The two cars belonging to the complainant and his brother were also taken along with and both the brothers were given beatings.
Jaswinder Singh his father came to the police station and pleaded for releasing his sons but to no result.
Father Davinder Kumar 2014.05.20 11:01 I attest to the accuracy and integrity of this document CRR-3948-2013 3 of the complainant moved an application on 24.02.2006 to the Chairman, Human Rights Commission, Chandigarh.
In the Police Station, ASI Hukam Chand called bad names to the members of the Panchayat who approached him for release of the complainant and his brother and also gave beatings to both the brotheRs.The Indica Car was badly damaged by the accused.
One gold ring of three graMs.Rs.700/- from the pocket of the complainant and Rs.450/- from the pocket of his brother were taken but not shown in the recovery memo.
The learned trial Court, on appreciation of evidence, adduced by the complainant after securing presence of the accused, consisting of examination of Dr.
Sulekha, Medical Officer, Civil Hospital, Sr.Muktsar Sahib, Bakshish Singh, Jaswinder Singh, Gurbachan Singh, Manjit Singh and the complainant himself held the accused guilty of committing offence punishable under Sections 342, 324, 323, 427, 506, 34 IPC and accordingly they were sentenced for the said offences.
The appeal preferred by the petitioners against their conviction and sentence by the learned trial Court was partly allowed and their conviction and sentence under Sections 342, 323 and 506 IPC was affirmed whereas conviction and sentence for offence under Section 324 IPC was set aside.
Feeling aggrieved by the verdict of the courts below, separate petitions have been preferred by Constable Bohar Singh and Head Constable Ajaib Singh.
Counsel for the petitioners contends that one of the co-accused in the case namely ASI Hukam Chand filed a separate appeal against his conviction and sentence by the learned trial Court but his appeal was Davinder Kumar 2014.05.20 11:01 I attest to the accuracy and integrity of this document CRR-3948-2013 4 accepted by the Additional Sessions Judge, Sr.Muktsar Sahib vide judgment dated 03.12.2013 (Annexure A1) and one of the grounds for acceptance of his appeal is that he could not be prosecuted for want of sanction under Section 197 of the Code.
Counsel, on the same analogy, argued that even if the petitioners have caused any injury to the complainant or wrongly confined him during discharge of their official duty, the complainant was not competent to initiate the criminal proceedings without necessary sanction by the competent authority in view of the provisions of Section 197 of the Code.
Another submission made by counsel is that the learned trial Court seriously erred in taking into consideration the evidence produced in the police case registered against the respondent vide FIR No.39 dated 23.02.2006 at the instance of a police official.
Counsel in the alternative has submitted that keeping in view the nature of the offence and the period of custody already undergone by the petitioners since dismissal of their appeal, the petitioners may be released on probation of good conduct or their sentence may be reduced to the period already undergone.
Counsel for respondent No.1, on the contrary, has submitted that no fault can be found with consistent and concurrent findings of fact recorded by the courts below holding the petitioners guilty for committing offence under Sections 342, 323 & 506 IPC, therefore, the petitioners do not deserve indulgence of this Court in exercise of limited revisional jurisdiction.
It is further submitted that the petitioners being the members of police force, assigned with a noble task of protecting the lives and liberty of the people are guilty of causing as many as 16 injuries to the respondent Davinder Kumar 2014.05.20 11:01 I attest to the accuracy and integrity of this document CRR-3948-2013 5 proved by Dr.Sulekha, their sentence needs to be enhanced to make it as an eye opener for the other members of the police force.
I have heard counsel for the parties and perused the records.
The petitioners have raised a legal issue in regard to their being entitled to protection of Section 197 of the Code being members of the police force and the alleged act if committed was in discharge of their official functions.
The contention is misconceived and merits outright rejection.
It is none of the part of the official duty of a member of the police force to compel a private person to accede to his command for transporting him to a particular place and refusal in that regard causing him thrashing with sticks.
The protection under Section 197 of the Code is available to the public servants in order to save them from false and frivolous prosecution.
The act complained against the petitioners by no stretc.of imagination falls within the preview of their official duties to attract the protection available under Section 197 of the Code.
This brings the Court to the submission that the trial Court has taken into consideration certain facts brought on record in the criminal proceedings pertaining to FIR No.39 dated 23.02.2006.
It is pertinent to mention that the said FIR was lodged against respondent Shamsher Singh (complainant).The criminal proceedings against Shamsher Singh before the trial Magistrate culminated in judgment of acquittal and concededly there is no challenge to the said judgment.
Even if the trial Court has taken into consideration a single fact that in the police case there was no allegation of use of Dandas/ sticks, the said fact alone is not at all sufficient to find fault with consistent findings recorded by the Courts below.
There is no material Davinder Kumar 2014.05.20 11:01 I attest to the accuracy and integrity of this document CRR-3948-2013 6 irregularity much less illegality committed by the courts below as would call for rectification in exercise of limited revisional jurisdiction.
I have given my thoughtful consideration to the submissions made by senior counsel Mr.R.S.Rai for reduction in sentence to the period already undergone or release on probation of good conduct.
The petitioners are admittedly members of the police force assigned with the onerous and noble task to protect the people.
If the protectors of law becomes its violators and looteRs.they cannot be allowed benefit of the provisions meant for other criminals who needs to be provided an opportunity to reform themselves.
The contention of the petitioners in the circumstances of the present case is devoid of merit and accordingly rejected.
The criminal proceedings were initiated against the petitioners in the year 2006.
They have faced pangs of crimina proceedings for the past more than 8 yeaRs.Their conviction under Sections 323, 342 and 506 IPC has been affirmed in appeal and they stand acquitted of the other offence(s).They are in custody since the dismissal of their appeal by the Additional Sessions Judge, Sr.Muktsar Sahib.
Keeping in view totality of the facts and circumstances, the substantive sentence awarded to the petitioners is reduced to rigorous imprisonment for a period of 9 months.
The petition stands disposed of with modification in the aforesaid terMs.(REKHA MITTAL) JUDGE May 08, 2014.
Davinder Kumar Davinder Kumar 2014.05.20 11:01 I attest to the accuracy and integrity of this document