ORDER
1. Shri S. B. S. Tiagi, Assistant Commissioner of Police, Shri Prem Nath, Inspector, former SHO Police Station Roshnara, Delhi, and ASI Mohan Singh have filed have petitions u/S. 482 of the Code of Criminal Procedure for quashing the criminal complaint u/Ss. 302/120B, IPC. These three petitions are disposed of by this judgment. In these petitions, it is also prayed that order of summoning passed by Shri J. M. Malik, Metropolitan Magistrate Delhi, dated 9th May, 1988 and the order of the learned Sessions Judge dated 9th June, 1989, (dismissing the criminal revision No. 121/88) be set aside. The complaint was filed before the court of Chief Metropolitan Magistrate, Tis Hazari by Smt. Surender Krishnan wife of Late Dr. P. G. Krishnan. The complainant is a practicing advocate in Delhi and wife of the deceased Dr. P. G. Krishnan, Professor of Law in the Delhi University, Delhi.
2. It is stated in the complaint that Late Dr. P. G. Krishnan was staying with his wife and 3 daughters at first floor of house No. 7/22. Roop Nagar, New Delhi-7, as tenants of Smt. Gian Devi Suri who lives along with her son Shyam Suri, his wife Nirmala Suri and their children, namely, Smt. Renu Khanna alias Dolly. In the complaint, it is stated that Smt. Renu Khanna, grand daughter of Smt. Gian Devi was harassing Late Dr. P. G. Krishnan and his family members with the object of making them forcibly vacate the tenanted portion. The landlady never got repaired the dilapidated roofs of the tenanted portion in spite of the repeated requests, since 1978.
3. On 8th January 1987, Smt. Renu Khanna committed house trespass and inflicted intentional insult by abuses to provoke breach of peace and criminal intimidation as a result of which DD No. 21-A dated 8-1-1987 was lodged by the deceased husband of the complainant at Police Station Roshnara, Delhi. A detailed complaint of the facts leading to the incident of 8th January 1987 was made on 9th January, 1987 to the S.H.O., Police Station Roshnara, Delhi, and was acknowledged by the Police Station on the same day.
4. That instead of taking any appropriate action against Smt. Renu Khanna, Gian Devi Suri and others on DD No. 21-A dated 8th January, 1987, followed by a complaint dated 9th January, 1987, the S.H.O., Police Station Roshnara, Delhi framed Kalandra against the complainant and her deceased husband, as one party and Smt. Gian Devi and Renu Khanna as other party vide DD No. 17-A dated 15-1-87 u/S. 107/150, Code of Criminal Procedure.
5. In the complaint, it is mentioned that the accused had the knowledge of the fact that the deceased Late Dr. P. G. Krishnan is a heart patient and in 1985, he suffered a massive heart attack.
6. It is further mentioned that the accused No. 1 Shri S. B. S. Tiagi who was Assistant Commissioner of Police (North) and was performing the duty of Special Executive Magistrate, and accused No. 2 Prem Nath was the then S.H.O. Police Station Roshnara, Delhi, and accused No. 3 namely, Mohan Singh, ASI, who prepared the Kalandara against the complainant and her husband on 15th January 1987 and submitted it to the then Special Executive Magistrate Shri O. P. Tiwari, Assistant Commissioner of Police. Shri S. B. S. Tiagi took over from O. P. Tiwari, and after taking over the charge of a Special Executive Magistrate, accused Nos. 2 and 3 were posted. Accused No. 4 Narender Singh executed the intentional illegal act of the accused Nos. 1 and 3 by threatening to arrest the husband of the complainant Late Dr. P. G. Krishnan through illegal non-bailable warrants issued by respondent No. 1. It is further alleged in the complaint that the Special Executive Magistrate Shri Tiagi had no power in dealing with the security or keeping peace or good behavior but in spite of that he issued non-bailable warrants on 17-6-87 against the complainant and her deceased husband which was executed through S.H.O., Police Station Roshnara, Delhi intentionally and in furtherance of their conspiracy to cause death of the husband of the complainant. On 18-7-87, accused No. 4 came to the residence of the complainant and her husband and gave threats of arrest by non-bailable warrants. The deceased husband of the complainant suffered a mental shock. Accused No. 4 did not find the condition of the deceased husband of the complainant good, and without executing the warrants of arrest, told that he would come again for the same.
7. It is further alleged that the husband of the complainant felt seriously uncomfortable because Accused No. 4 asked the deceased and the complainant to reach Police Station Roshnara, Delhi at 9 a.m. on 19-8-87 and then he would take both of them to the court of the Assistant Commissioner of Police. It has been mentioned in the complaint that because of this humiliating act of accused No. 4, the condition of the deceased deteriorated and immediately, the husband of the complainant was rushed to his daughter's residence at Mayur Vihar, (driven by his youngest daughter Renu Krishnan) and he collapsed and died due to the act of accused No. 1.
8. On 21-8-87, Ms. Rashmi, another daughter of Late Dr. P. G. Krishnan made an application to Deputy Commissioner of Police (North) which was received by Deputy Commissioner of Police on the same date but no action was taken. It is stated that the complainant made an application to the Lt. Governor on 9th September, 1987 for obtaining sanction u/S. 197, Code of Criminal Procedure but no reply has been received. It is further stated in the complaint that all authorities want to protect these Police Officials. thereforee, the complaint was filed in the Court of Chief Metropolitan Magistrate without obtaining the sanction u/S. 197 of the Code of Criminal Procedure.
9. The learned Metropolitan Magistrate issued process to the accused persons vide his order dated 19-5-1988. The accused persons aggrieved by the order of the Metropolitan Magistrate dated 19-5-88 preferred a revision petition before the Session Judge, Delhi. The revision petitions filed by the petitioners were dismissed by the learned Additional Sessions Judge, Delhi, vide his order dated 9-6-89. Aggrieved by the order of the learned Metropolitan Magistrate dated 19-5-88 and the order of the Additional Sessions Judge, dated 9-6-89, the accused persons have preferred these proceedings, u/S. 482. Code of Criminal Procedure for quashing complaint u/S. 302/120B, IPC. In these petitions, it is averred that Shri S. B. S. Tiagi, Special Executive Magistrate passed the order in performance of his duties in the course of proceedings u/S. 107/150, Code of Criminal Procedure, the execution of which was entrusted to a constable Narender Singh, who allegedly visited the house of the respondent (complainant) on 18th August, 1987 and returned without effecting arrest, but directing them to report at the Police Station on 19-8-87 where from they would be accompanied to the court of Special Executive Magistrate, as 19th August, 1987 was the date fixed for hearing.
10. Shri S. B. S. Tiagi, Special Executive Magistrate-cum-Assistant Commissioner of Police, North Headquarters, ASI, Mohan Singh who prepared the report/kalandara u/S. 107/150, Code of Criminal Procedure, suggesting to bind both the parties who were making report against each other to maintain peace and constable Narender Singh who took the warrants of arrest for execution are sought to be prosecuted for conspiracy to commit murder of Late Dr. P. G. Krishnan.
11. On the basis of the complaint and evidence on record, the learned Metropolitan Magistrate vide his order dated 19-5-88 summoned the accused persons. Learned Metropolitan Magistrate also mentioned in his order that according to him, it was not necessary to get the permission for the prosecution of the accused persons. The Additional Sessions Judge in revisions upheld the order passed by the Metropolitan Magistrate. The petitioners have approached this court with the prayer that this court must exercise its inherent powers to get the petitioners justice.
12. Counsel appearing for the petitioners mentioned that in the instant case, there has been a total abuse of the process. The innocent petitioners have been unnecessarily driven to a situation where they are required to face the rigmarole of a long drawn criminal trial.
13. Shri K. K. Sud, appeared on behalf of Prem Nath, Inspector, former SHO, Police Station Roshnara, Delhi, and Shri Dinesh Mathur, Senior Advocate, appeared for S. I. Mohan Singh and Shri S. S. Tyagi for Shri S. B. S. Tiagi, Assistant Commissioner of Police.
14. It was seriously contended by counsel for the petitioners that the death of Dr. P. G. Krishnan cannot be correlated with the orders issuing non-bailable warrants, and visit of the constable to execute the warrants. Any such correlation is erroneous, illegal and bound to lead to miscarriage of justice. It was further contended that Dr. P. G. Krishnan was a Professor of Law in Delhi University. A mere order u/S. 107/150 of the Code of Criminal Procedure cannot disturb such a highly educated person who is also so well versed in the law. Filing of complaint and issuance of process by the Metropolitan Magistrate is clearly an abuse of the process of law.
15. Shri Mathur appearing for one of the petitioners has contended that there is legal bar to the initiation of criminal proceedings and taking cognizance of offences allegedly committed by any public servant while acting or purporting to act in the discharge of his official duties, without sanction u/S. 197 of the Code of Criminal Procedure, and provisions of S. 140 of the Delhi Police Act. In the concluding portion of the complaint, it was mentioned, 'The complainant made an application to the Lt. Governor, Delhi dated 9-9-87 for obtaining sanction u/S. 197 of the Code of Criminal Procedure, received by the Lt. Governor on 9-9-87, but no action has been taken or communicated to the complainant until he filed the complaint. Even the respondents were aware that no prosecution may be launched against the public servants unless there is a valid sanction. The sanction was declined later on by the Government. It was submitted by Shri Mathur that the entire proceedings against the petitioner are totally illegal, void and against the law of the land.
16. It was also submitted that the sanction was later on declined and no prosecution against the petitioners was maintainable in the eye of law.
17. In the present case, it may not be necessary to examine the case from the point of view whether the prosecution without the sanction is maintainable because even by bare reading of the complaint, the conclusion is irresistible that the death of the complainant's husband Dr. P. G. Krishnan cannot be correlated with the issuance of non-bailable warrants, the visit of the constable to execute the warrants. The complainant's husband was a professor of law in the Delhi University and it is presumed that he ought to have understood the orders passed under S. 107/150 of the Code of Criminal Procedure in proper perspective. Orders passed u/Ss. 107/150, Code of Criminal Procedure are not so serious nature as would result in disturbing the mental condition of an average prudent person to the extent of leading to his death.
18. In case complainant's husband was in fact so aggrieved by the order of the learned Metropolitan Magistrate dated 19-5-88, who prevented him from approaching the higher Court for quashing, setting aside or modifying the order dated 19-5-88. No such application was ever submitted.
19. These petitioners were discharging their obligations under the law and they cannot be harassed or humiliated and compelled to face a criminal prosecution on that count. The petitioner S. B. S. Tiagi was admittedly performing the duties of a Special Executive Magistrate, being the Assistant Commissioner of Police (North Headquarters). The order which the learned Executive Magistrate being the Assistant Commissioner of Police passed was within the domain of his jurisdiction. Aggrieved person could have challenged that order, but how can he be prosecuted for passing an order in due discharge of his duties. The other petitioners Shri Prem Singh was then the SHO, Roshnara Police Station and petitioner No. 3, namely, Shri Mohan Singh Assistant Sub-Inspector, Roshnara Police Station. To allege that the conspiracy was hatched by these petitioners to commit murder of Professor P. G. Krishnan would in fact be an abuse of the process of law.
20. I have heard learned counsel for the parties at length and perused the relevant record, which was necessary to dispose of the present petitions. I have given serious consideration to the submissions made at the bar. On the facts and circumstances of this case, it can safely be said that there was no nexus of the petitioners act to the death of Dr. P. G. Krishnan.
21. This submission is further fortified by the fact that Dr. Krishnan was a highly educated and intellectual person. In case he found any infirmity or arbitrariness in initiating proceedings u/S. 107/150, Code of Criminal Procedure he would have very well challenged the same in the court of competent jurisdiction. The complainant also had adequate knowledge of law being a practicing advocate. The fact that these highly intelligent persons, with all the resources at their disposal, did not challenge the proceedings manifestly establish that they were not at all bothered and had no tension, fear or anxiety. By no stretch of imagination death of the complainant's husband can be correlated with the petitioners orders issued in discharge of their duties. The other submission which has been made by Shri Mathur is also prima facie quite weighty, that no prosecution can be launched without proper sanction from the Government and such a prosecution is totally void and is manifestly an abuse of the process. It is not necessary to examine the veracity of this submission particularly when on the averments of the complaint, I have come to the conclusion that there was no nexus of the petitioners act with the death of Dr. Krishnan. The order passed by the petitioner in the proceedings u/Ss. 107/150, Code of Criminal Procedure was admittedly done in the course of discharge of his duties and obligations. Even if the order which he had passed was erroneous, then also he cannot be prosecuted for that reason because it is always open to the aggrieved party to assail and challenge the order before the higher court.
22. On the facts and circumstances of this case, in the interest of justice, I deem it appropriate that the proceedings u/Ss. 302/120B, of the Indian Penal Code pending before the Court of the Additional Chief Metropolitan Magistrate, Delhi, are liable to be quashed. The order dated 19-5-88 summoning the accused persons and order dated 9-6-89 passed in Criminal Revision Nos. 120, 121, 126 of 1988 are also set aside.
23. These three petitions preferred by the petitioners are allowed. The warrants issued against the accused persons shall stand cancelled.
24. Petitions allowed.