C.K.Buch, J.
1. The petitioner-revisionist is the orig. complainant of Criminal Case No.71/98 (Orig. No.6/96) filed in the Court of learned Judicial Magistrate First Class, Lalpur, Dist. Jamnagar. The respondent nos.1 to 4 shown in the cause title of the memo of the petition are the police officials. Of course, the name of respondent no.3 i.e. Sukhdevsinh Narendrasinh is mentioned for administrative reasons in the cause title of the memo of the petition as he has died pending litigation. Hence, Criminal Case against deceased Sukhdevsinh, obviously, has been declared abated. The respondent no.5 is the State of Gujarat and is supporting the respondent nos.1 to 4. The respondent no.1-Subhash Trivedi, at present serving as Dy. Director (Civil Defence), Public Protection, Ahmedabad, on the relevant days of the incident i.e. on 2nd August, 1996 and 3rd August, 1996, was Dy. Superintendent of Police, Jamkhambhalia Sub-Division, Dist. Jamnagar. The respondent no.2, Police Inspector serving at present wit City Police Station, Junagadh, was the Police Sub-Inspector, Salaya Police Station and the respondent no.4 at present working at Special Squad, Jamnagar, with the office of the District Superintendent of Police, Jamnagar. In the complaint, it is alleged that over and above four police officials named in the complaint, about 100 police personnel were also there who have committed offence mentioned in the complaint punishable under Sections 147,149, 323,452, 324,380,392,395,427,504,506(2) and 341 of the Indian Penal Code.
2. The backbone of the complaint filed is that once in the year 1991, the petitioner's brother namely Suleman Mamad was found involved and, thereafter arrested in connection with murder of one Juvansinh Jadeja, Member of District Panchayat and after trial alongwith other accused Suleman Mamad was acquitted. Therefore, the respondent no.2 i.e. Police Sub-Inspector, Lalubha Jadeja was keeping ill-feeling with Suleman Mamad and the petitioner. The respondent no.2 is the cousin of deceased Juvansinh and because of this vengeance, the police officials were trying to harass the family of the petitioner and his brother. Alleging this motive, the aforesaid complaint as to the commission of the abovementioned offences was filed. In view of the fact that the complaint was against the police officials, which was filed in the Court of learned Judicial Magistrate First Class, Lalpur as private complaint, it was registered as Inquiry Case No.6/1996. After detailed inquiry and examining the complainant and his witnesses under Section 202 of the Criminal Procedure Code ( for short 'the Code'), the learned Judicial Magistrate First Class issued process against four persons mentioned in the heading of the present petition for the offences punishable under Sections 114, 323, 504, 506(2) of the Indian Penal Code. For rest of the offences though mentioned in the complaint, the Court has not issued any process. Non-inclination to grant process for the other offences has not been challenged. So it can be ultimately inferred that the Court refused to issue process for the grave offences that were mentioned in the complaint viz. Sections 147,149,452,324,380,392,395,etc. of the Indian Penal Code. The complaint ultimately came to be renumbered as Criminal Case No.71/98. A copy of the original complaint filed by the present petitioner is on record at Annexure-A. On service of process, the respondents preferred a discharge application on 14th October, 1998 and ultimately, vide order dated 1st October, 2003, the learned Judicial Magistrate First Class, Lalpur allowed the application on the ground that in absence of statutory sanction as contemplated under Section 197 of the Code, the Criminal Case cannot proceed further and ultimately the Court passed the order of revocation of issuance of process. Feeling aggrieved by and dissatisfied with the order dated 1st November, 2003, passed below Exh.10, discharging the respondents-accused from the said offences, the present Revision Application is moved. Of course, present Application is not moved within the period prescribed i.e. within 90 days, and there is a delay of 51 days in preferring the Revision Application. According to the petitioner, the delay has been explained and sufficient cause within the meaning of Section 5 of the Limitation Act, has been shown for the delay caused. So it is simultaneously prayed that delay in preferring the present Criminal Revision Application may kindly be condoned and the Criminal Revision Application may be allowed and the findings recorded by the learned Judicial Magistrate First Class may be reversed.
3. When the application praying condonation of delay of 51 days came to be circulated for admission, the Court issued Rule, returnable on 3rd May, 2004. The learned APP had waived the formal service of Rule on the very day i.e. on 9th April, 2004 but rest of the respondents after appearing through their learned counsel resisted the request to condone the delay and submitted that there is no justification for the delay caused and, therefore, the same is not to be condoned. The affidavit-in-reply is submitted by respondent no.2, wherein various contentions have been raised and it is contended that there is no cogent or convincing reason as to how the delay has occurred and the same has remained unexplained. Over and above, it is contended that there is no scope of success as the petitioner has no fair and arguable case. So the delay should not be condoned for the sake of condoning it. Ultimately, on the day of hearing, the learned counsel appearing for the parties namely Mr. Maulik Shelat, learned counsel appearing for the petitioner and Mr. P.M. Thakkar, learned senior counsel for the respondent nos.1 to 4 jointly submitted that the delay condonation application as well as the Revision Application may be taken up for hearing simultaneously and may be decided by a common judgment because the Criminal Complaint is of 1996 and the police officers, who are named as accused are unnecessarily kept under handing sword of a criminal case against them. The ld. APP appearing for the State has also consented to the proposal and therefore, the delay condonation application as well as Criminal Revision Application are being disposed of by this common judgment, treating both the matters as admitted by fixing the Rule forthwith.
4. The first submission of Mr. Shelat, learned counsel appearing for the petitioner, is that the delay caused in preferring the present Revision Application has been satisfactorily explained by the petitioner in para:2 of the application and delay of 51 days cannot be said to be a gross delay. There is neither malice in causing delay nor there is any negligence. It is submitted that the approach of the Court in such cases should be liberal and pragmatic; especially when one of the party respondents is a very senior Police Officer, the petitioner may seek to collect various opinions, including the legal opinion, for challenging the order before the High Court. Thus, this ground is justified and sufficient.
5. On the other hand, the say of respondent nos.1,2 and 4 is that the petitioner-orig. complainant is a head strong man and he is aware about the nitty-gritty of the law. Therefore, the delay has caused at every stage i.e. in applying for the certified copy, in obtaining the certified copy which was lying with the Registry ready for delivery and the period spent after obtaining the certified copy by the petitioner and when there is no explanation for each day's delay, the delay should not be condoned. It is mentioned in para: 6 that from 1996 to 1998, different persons including the police officials have filed eight criminal cases against the present petitioner and some of the offences are of grave nature punishable under the Indian Penal Code. The petitioner was also charge sheeted and prosecuted for the offences punishable under Section 25(1) of the Arms Act and Section 286 of the Indian Penal Code in the year 1984. Not only that, it is contended that for the alleged incident occurred on 2nd August, 1996 and 3rd August, 1996, the sister of the present petitioner had approached this Court making serious allegations against the police officials including the respondent nos.1, 2, 3 and others, with a habeas corpus writ petition being Special Criminal Application No.1080/1996. However, the Court found the allegations made in the petition are false and the accused persons named at Annexure-A to the said petition, were lawfully arrested for the serious offences and this Court dismissed the said petition of habeas corpus and directed the petitioner-Jenuben Mamad Sapiya to pay costs of Rs.10,000/-. Thus, it is argued by Mr. Thakkar that there is no reasonable justification or sufficient cause, so the present Revision Application requires to be dismissed in limine on the point of reliefs being time barred.
6. Though there is some force in the say of Mr. P.M. Thakkar, learned senior counsel, the ratio of the decisions of the Apex Court in 'n' number of cases in such or similar situation twirls the balance in favour of the petitioner and the case of the petitioner is not a case which requires to be thrown out on technical ground of limitation. Substantive justice is required to be done. So taking liberal and pragmatic view, this Court hold that the delay is construed to have been condoned. So on the point of limitation, the petitioner succeeds.
7. So far as the submissions of Mr. Shelat are concerned on merit, they centre around animosity between the Police Sub-Inspector Shri Lalubha Jadeja and the family of the accused. Time and place of the incident, the conduct of the larger number of police officials who were about 80 to 100 in number who had cornered the residential premises of the petitioner and two different places referred to in the complaint i.e. village Bhojabedi and village Nana Kanba. Of course, no geographical distance between these two villages has been mentioned by any of the counsel for the parties but it appears that they are nearby villages and probably just adjacent villages and, therefore, by crossing the fields in between, one can reach from Bhojabedi to Nana Kanba and vis-a-vis. It is also relevant that the complainant has referred the residential premises located in the respective fields of both these villages. So again distance between the two houses referred to in the complaint is relevant but there is no evidence as such on record on this point. Selection of odd hours for carrying out the alleged raid is also focused by Mr. Shelat. It is argued that the learned Judge has seriously erred in holding that the accused persons even if they have committed any wrong then the same has been committed during the course of acting or performing or in discharging of their official duty. The fact of causing damage to the property has been ignored by the learned Magistrate and there was no business for the police officials to insult the present complainant and her family members. In presence of many persons of village, the petitioner was beaten and insulted and such a conduct cannot be said to be an act done in discharge of official duty.
8. The second phase of argument of Mr. Shelat is that the learned Magistrate has erred in holding that prior sanction as contemplated under Section 197 of the Code is required to proceed with the matter. Because the facts mentioned do not go to show that the accused have committed a criminal wrong in discharging of their duty. On the contrary, under the guise of investigation in respect of a complaint allegedly registered with Lalpur Police Station vide C.R. No.I-66/96, they have misused their power. In reality, if the time of registration of offences is considered, it was possible to conclude that the complaint has been registered only to meet with the allegations that may be made by the complainant or any other injured persons from the family of the petitioner.
9. Mr. Shelat has focused his arguments placing reliance on the decision in the case of S.S. Khandwala v. State of Gujarat reported in 2003 (1) GLR 802, wherein this Court has held that :
'....if a public servant is charged with abduction, grievous hurt, extortion of confession, wrongful confinement and abetment of such offences are the gravamen of the charges against the public servant, then by no stretch of any part of the alleged acts can even claimed to be committed while discharging the official duty or to be within the permitted range of official duties and such claim of the accused are pretended and fanciful. It is further observed that if when there is gross violation of the fundamental rights by the accused than it can hardly be claimed that the alleged act amounting to an offence was committed while acting or discharging to act in discharge of official duties.'
Mr. Shelat has pointed out observations made by the Apex Court from the cases where criminal wrongs have been found established during custodial interrogation.
10. So according to Mr. Shelat, the facts mentioned in the complaint and the process issued for the offences mentioned in the order clearly indicates that none of the acts done by the accused persons are done in performing their official duty. How a police officer can give threat to life, even to the accused who is to be arrested for the offence committed by him is the question posed by Mr. Shelat during the course of his arguments. According to Mr. Shelat, once the process has been issued in a private complaint, the proceedings should not be terminated; especially when a fundamental right of life was brought under serious threat by high-handed actions of the accused persons mentioned in the complaint.
11. I have gone through the papers of investigation and the facts brought to the notice of the Court. The arguments of Mr. P.M. Thakkar, learned senior counsel, if appreciated in light of the decision cited, it emerges that the learned Magistrate has not committed any error either of law or of facts in disposing of the application Exh.10. The learned Magistrate has thrashed out the basic facts emerging from record and has considered the facts in light of the decisions cited before him. The learned advocate representing the orig. complainant before the trial Court has mainly hammered on the argument that except the averments made in the complaint, the learned trial Judge did not suppose to consider the case of the defence because the order of issuance of process is passed on the facts placed by the complainant and his witnesses. So whether the learned Magistrate was justified in issuing process on facts given by the prosecution witness and the complainant during inquiry or not is the only relevant aspect and the learned Magistrate has committed jurisdictional error as he has focused on the defence version.
12. The say of Mr. Shelat before this Court is also of similar type and it is, therefore, argued that the accused should be asked to face the trial and if their stand is justified, they can be acquitted by the trial Court but there was no scope for the learned Magistrate to discharge any of them. But the ratio of the decision in the case of S.B. Jain v. Pandey Ajay Bhushan and ors., reported in I 1998 CCR (SC) is the direct answer to the arguments advanced by Mr. Shelat, wherein the Apex Court while considering the very question in reference to Section 197(1) of the Code has observed that :
'197(1) : When any person who is or was a Judge or Magistrate or a public servant not removable fro his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.'
13. Certain relevant portion of the order under challenge i.e. paragraph nos.3.2, 3.3 and 3.4, is found relevant. This Court can say, in short, that the reasons assigned by the learned trial Judge are logical and satisfactory and, therefore, the same are adopted. But for the sake of convenience, I would like to reproduce the relevant part of the order under challenge :
'3.2 It is not in dispute that the document which can be looked into at this stage should be relevant, which require no formal proof. Mark 11/1 is the copy of judgment of Honourable High Court of Gujarat in Special Criminal Application No.1080 of 1997, Mark 11/2 is copy of affidavit filed by C.P.I. Jamnagar in same proceedings and Mark 59/1 is the copy of the petition filed by Jenuben Mamad in Special Criminal Application No.1080 of 1996. That these are the copy of originals but genuine of the same is not disputed by otherside. Mark 11/5 is copy of FIR of Lalpur Police Station I. C.R. No.66 of 1996, Mark 11/8 to 11/14 are the copies of C.R. Nos., Mark 11/15 to 11/16 are copy of dogiears form, Mark 11/17 to Mark 11/29 are the certified copies of the production reports, remand applications, order below remand applications of Lalpur Police Station I.C.R. No.66/1996, Exh.59 is an affidavit filed by accused no.4 stating that all the accused were on duty at the time of alleged act and they went to maintain law and order as per the order of their superior officers. Mark 69/1 is document regarding the presence of accused no.1 at Bhojabedi by an order of his superior officer. These documents are not disputed by the complainant and nothing is on record to deny the correctness of these documents. Only the copy of judgment of the Honourable High Court of Gujarat in Special Criminal Application at Mark 11/1 has been objected by Learned Advocate A.J. Sindhi as it is not certified copy. But to my view it can also be considered as genuine as it is xerox copy of true copy.
3.3 Now upon taking into consideration the above mentioned documents it appears that after the incident of C.R. No.66 of 1996 the accused no.1 and other police personnel have visited the Bhojabedi village to maintain law and order and about 30 persons have been arrested by Police in connection with Lalpur Police Station I.C.R. No.66 of 1996. Some of the persons were arrested later on and accordingly everybody was produced before Magistrate within stipulated time, thereafter they were remanded to police custody and then again produced before Magistrate court on completion of the period of remand. Thereafter they have been sent into judicial custody. The present complainant was arrested on 8.8.1996 at 20.00 hours and was produced before Magistrate Court on 9.8.1996 alongwith remand application then he was remanded to police custody upto 13.8.1996 and on 13.8.1996 he was sent to judicial custody. Accused No.1 was posted at Jam-Khambhaliya and he has been called upon by DSP Jamnagar at Bhojabedi village to maintain law and order. It is pertinent to note that accused no.1 has nothing to do with Lalpur Police Station as it is not under his jurisdiction. At the relevant time Mr. T.J. Thakur was CPI at Lalpur Police Station and all the accused of C.R. No.66 of 1996 were arrested and investigated by him but nothing is alleged against him though as per law during police remand and pre-production stage the accused were in his custody. The accused no.3 and 4 were also members of the squad who has been assaulted by villagers of Bhojabedi as alleged in complaint of C.R. No.466 of 1996.
3.4 The above facts are discussed to see whether the accused in present case required to be protected under Section 197 of the Criminal Procedure Code or not? These facts came before this Court after issuance of process under Section 204 of the Criminal Procedure Code. In complaint at para 6 the reference of C.R. No.66 of 1996 appears and in statement of complainant and Jenamben and Ajitsingh it also transpires that all the accused and other Police persons have beaten them and abused and whisked them into vehicle on 3.8.1996. The only allegations of threat to kill was made by complainant at the time of production before court and Ajitsingh says that it was at the time of arrest. Upon perusal of documents it is also clear that all this affair has been carried out during the investigation of Lalpur Police Station I.C.R. No.66 of 1996. This version is supported by prosecution also and this court itself at para 2 of its order dated 11.2.1998 below Exh.1 has accepted the same while denied the issuance of process under Sections 148, 149 of the I.P. Code.'
14. The medical certificates shown to the Court clearly reveal that many police officials were injured in the assault made by the complainant and the group of persons supported by him in the incident. Firstly a small group of police officials had been to the residential premises of the petitioner and they were in private dress and not in police uniform. They had parked their jeep car at some distant place so that the accused persons, who were to be apprehended, if they are really there in the houses-'hideouts'- may not escape on hearing the notice of police jeep car. That group of police officials was beaten by a mob instigated by the petitioner and his family members and, therefore, they were taken to hospital for treatment and the doctors have no reason to state anything false. It appears that on return of police personnel in injured condition, the D.S.P. arranged for a bigger force and cornered the entire area and injured police personnel were asked to go to the Government Hospital. The injury certificates clearly support the say of the respondents. Therefore only, the District Superintendent of Police had arranged immediately for the police force available in the nearby area i.e. adjacent police station, outposts and available SRPF (State Reserved Police Force) personnel were also deployed and the residential premises of the petitioner and relevant area was cornered. Obviously, therefore, the incident occurred at odd hours. There is no element of either malice or intention of harassment by one single officer i.e. respondent no.2 namely Lalubha Jadeja. Why Mr. Trivedi, Dy. SP or DSP should accept to become a party in settling quarrel on one Police Sub-Inspector serving in one of the police stations of District Jamnagar is the question; that has not been satisfactorily answered either by the complainant or by the learned counsel appearing for the petitioner. The registration of offence at a later point of time for the assault made on the body of the police personnel, of course is relevant but it would be wrong to say that it should be viewed with suspicion because it is supported by independent document from the Government Hospital and no police officer would inflict injury on his body voluntarily-self infliction only with a view to browbeat and harass the petitioner and his family. On the contrary, it emerges that but far the serious offence committed qua the injured police personnel who had gone to the residential premises of the complainant is relevant to ascertain as to whether criminals who were to be arrested have been really given shelter there in that village or in the houses in the area. Therefore, if the police in couple of hours reacts strongly then it can be inferred that some over doing even if it is found then also, it was done at the command of the DSP and each police personnel was discharging his respective duty. The learned Magistrate has rightly appreciated the facts alleged in the writ petition filed by the sister of the present petitioner referred to hereinabove and the fact of imposition of costs of Rs.10,000/- The learned trial Judge has considered number of judgments including the decision of (i) Gaurishankar Prasad v. State of Bihar, reported in AIR 2000 SC 3517 and (ii) State of Bihar v. Kamala Prasad Singh, reported in III-1998 CCR SC 61. The ratio of the decision in the case of Aher Pola Parbat Barad v. Chitturi Sahib, Assistant Superintendent of Police, Veraval, reported in 2003 (1) GLR 2054, wherein this Court has observed that if during the course of investigation the police officers resort to atrocity, the same may amount to offence. However, it cannot be said that the offence has not been committed in discharge of their official duty. If such is the interpretation, Section 197(1) of the Code would become nugatory. The learned Magistrate has also rightly appreciated the ratio of the decision in the case of S.S. Khandwala (supra). So when it is apparently clear that the respondents-accused were performing their official duty and during the investigation of Lalpur Police Station the offence vide C.R. No.I-66/96 has been committed, out of which meeting and abusing took place on 3rd August, 1996 and threat to kill was committed later on time to time; as and when the accused were produced before the learned Magistrate, even as per the say of the complainant then also the wrong can be said to have been committed in discharging of their official duty. Undisputedly, the present petitioner was also one of the persons arrested in the offence registered vide C.R. No.I-66/96. The Court was not supposed to consider the consequences for which the processes were not issued.
15. In view of the facts and circumstances emerging from record and especially the story unfolded by the complainant-himself suppressing certain material aspects and the fact that no immediate disclosure of commission of offence was made by him and that he approached at a belated stage on 30th August, 1996 i.e. after several days from the date of getting bail in the offence in which he was arrested, the say of Mr. Thakkar shall have to be accepted that the ratio of the decisions in the cases of (i) Aher Pola Parbat Barad (supra), (ii) Abdul Wahab Ansari v. State of Bihar and anr., reported in 2000(8) SCC 5000 and (iii) State of Orissa v. Ganesh Chandra Jew, reported in 2004 Cr.L.J. 2011, would squarely apply. Let me reproduce para:10 of the decision in the case of Ganesh Chandra (supra) for the sake of convenience :
'10. Prior to examining if the Courts below committed any error of law in discharging the accused it may not be out of place to examine the nature of power exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the Code reads as under:
'197(1) : When any person who is or was a Judge or Magistrate or a public servant not removable fro his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
The sanction falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. for instance no prosecution can be initiated in a Court of Session under Section 193, as it cannot take cognizance, as a Court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the cognizance of any offence by any Court is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the character of the protection afforded to a public servant is brought out by the expression, 'no Court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.'
16. So the decision in the case of Khandwala (supra) or the decision cited by Mr. Shelat in the case of Jadeda Meramanji Pragji and ors. v. State of Gujarat, reported in 1963 (2) Cr.L.J. 713, would not help the petitioner. There is no element of either illegality or perversity in the decision of the learned Judicial Magistrate First Class and while exercising jurisdiction, this Court is not supposed to rewrite afresh the judgment by assigning new fresh reasons when it is found that the learned trial Court has applied proper judicial mind to the facts available on record.
17. Thus, I do not find any merits in the present Revision Application, so the Revision Application is hereby dismissed on merits. The order dated 1st November, 2003 passed by learned Judicial Magistrate First Class, Lalpur, below Exh.10 in Criminal Case No.71 of 1998, terminating the proceedings and discharging the respondents-accused is hereby upheld. All the respondent nos.1 to 4 are hereby freed from all the charges levelled against them i.e. offences punishable under Sections 147, 149,323,452,324,380,392,395,427,504,506(2) and 341 of the Indian Penal Code, for want of formal sanction required under Section 197 of the Code of Criminal Procedure. Rule is made absolute technically so far as Criminal Misc. Application No.3032/2004 is concerned and it is discharged so far as Criminal Revision Application No.210/2004 is concerned.