Labhuram Vs. Prakash Hegde and Another - Court Judgment

(Prayer: This Crl.P Filed U/S. 482 Cr.P.C. By The Advocate For The Petitioners Praying That This Hon'ble Court May Be Pleased To Set Aside The Order Dated 05.7.2012 Passed By The Jmfc Suliya In Pcr No. 94/2012 Produced At Annexure-A Taking Congnizance Of The Complaint Filed By Repondent No.1 Dated 05.7.2012 Produced At Annexure-E And The Order Dated 31.7.2013 Passed By The Jmfc, Suliya In Pcr No. 94/2012 Taking Cognizance Of The Offence And Ordering For Registering Crl. Case Against The Petitioner Herein Which Is Numbered As C.C.No. 659/2013 Produced At Annexure - B.)

1. Petitioner is a combatant police officer of the State Government presently serving as the Deputy Commissioner of Police (Crime),Bangalore. He has brought in question initiation of prosecution against him and others on the complaint of the 1st respondent-Prakash Hegde for offences punishable under the provisions of Sections 323, 324, 330, 504 and 506 read with Section 34, I.P.C. in PCR.94/12 vide Annexure-A.

2. Upon prior notice, the 1st respondent is represented by his choice, Mr P.P. Hegde and the State is represented by Mr.Nazrulla Khan.

3. Learned counsel, Mr.Prasanna Kumar would draw my attention to the allegations in the complaint which reveals that the 1st respondent filed complaint under Section 200, Cr.P.C. alleging he belongs to Jain community and has worked as Vice President of Sulia Town Panchayat. On 15.12.2011, petitioner herein (arraigned as 4th accused) along with other officers of the police station arrested one P.K.Umesh from his house and took him to Sulia police station. They started the journey at 2.00 a.m. and when they reached Ubaradka, 1st accused restrained the complainant who informed him that he wanted to meet Umesh who was arrested, accused persons named in the complaint are alleged to have intimidated and threatened the life of the complainant and abused him in filthy language, describing him as BJP 'goonda.' He alleged, 1st respondent assaulted him with lathi and forcibly felled him down. When his friends Kishan, Kiran, Dinesh, Sathish tried to pacify, 3rd accused assaulted them. In this manner, 2nd accused commented on the conduct of the complainant and indulged in vulgarity asking him to bring his sisters, etc. He has also attributed individual overt acts to the petitioner stating they were sitting in the police station verandah and were treated badly. Thus he sought action against persons indicated above.

4. Learned counsel for the petitioner submits the incident relates to imposition of order for maintaining peace and as there was assembly of persons more than five, 1st accused had commanded them to disperse. Instead of dispersing, complainant and others indulged in acts of violence requiring them to use force. He submits, that act was the result of discharge of official duty and therefore he is protected by virtue of the provisions of Section 132, Cr.P.C. He submits, initiation of prosecution itself is vitiated for want of sanction and therefore it is liable to be quashed.

5. From the submission of the learned counsel, it is seen petitioner had availed the benefit of discharge before the magistrate which request was turned down by order dated 31.7.2013. Hence a question has arisen as to whether such order is revisable under Section 392,Cr.P.C.

6. Petitioner's counsel has cited the decision of the apex court in the case of DHARIWAL TOBACCO PRODUCTS LIMITED .vs. STATE OF MAHARASHTRA and ANOTHER ([2009] 2 SCC 370) wherein the apex court opined, despite availability of remedy of revision under Section 392, Cr.P.C. where grave illegality is committed, the high Court will be justified in interfering and exercising suo moto power. Accepting the proposition laid down, I have entertained this petition.

7. On behalf of the respondent-complainant, learned counsel relying on the decision in the case of CHOUDHURY PARVEEN SULTANA .vs. STATE OF WEST BENGAL and ANOTHER ([2009] 3 SCC 398) submits, no sanction is required to prosecute the petitioner. He submits, Section 197, Cr.P.C. is not necessary when overt acts attributed to public servants are such that it cannot be construed as acts in performance of official duty.

8. From the contentions of both sides, it boils down to decide only whether in facts like this, Section 132 or 197, Cr.P.C. applies. As could be seen from the narration of facts which has crystallized into the substance of allegations against the petitioners to proceed against them for offences indicated above, petitioners are alleged to have acted in excess of their official duty or unjustifiably to use force against persons who were members of the assembly exceeding five. It is also not disputed by the complainant that there was an order restraining assembly of more than five persons and police officers were required to curtail the act of violence and in furtherance of that object, reasonable force has been used. This act is described as unwarranted and hence complainant seeks prosecution.

9. Be that as it may, even if the overt acts attributed to the petitioner has been committed, the question is, whether the magistrate could have entertained the complaint under Section 200, Cr.P.C. to initiate criminal prosecution. Section 132, Cr.P.C. is very clear in its terminology. It reads thus:

132. Protection against prosecution for acts done under preceding sections-

(1) No prosecution against any person for any act purporting to be done under Section 129, Section 130 or Section 131 shall be instituted in any criminal court except-

(a) with the sanction of the Central Government where such person is an officer or member of the armed forces;

(b) with the sanction of the State Government in any other case.

(2) (a) no Executive Magistrate or police officer acting under any of the said sections in good faith;

(b) no person doing any act in good faith in compliance with a requisition under section 129 or section 130;

(c) no officer of the armed forces acting under section 131 in good faith; which he was bound to obey, shall be deemed to have thereby, committed an offence.

3) In this section and in the preceding sections of this Chapter,-

a) the expression 'armed forces' means the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating;

b) "officer', in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non- commissioned officer and a non- gazetted officer;

c) "member", in relation to the armed forces, means a person in the armed forces other than an officer.

Thus it is clear, the provision of Section 132, Cr.P.C. does not permit 'initiation' of prosecution. The words used are 'No prosecution against any person for any act purporting to be done under Sections 129, 130 or 131 shall be instituted in any criminal court..' Therefore while entertaining the complaint of the 1st respondent, the magistrate was required to examine the nature of allegations, circumstances in which the offence is committed and then to decide whether the situation was covered under Sections 129, 130, or 131, Cr.P.C. and then insist upon the complainant to obtain prior sanction. That has not been done.

10. So far as the provision under Section 197, Cr.P.C. is concerned, though it looks to be similar, but there is a marked difference in its application. The provision would be attracted and available when any person who is or was a judge or magistrate or a public servant not removable from 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.' Therefore the provision deals with requiring of prior sanction to take cognizance for the offence, but Section 132, Cr.P.C. is does not permit even 'initiation', without prior sanction. In the circumstances, registration of private complaint by the magistrate and issuance of process amounts to institution of criminal case against the petitioner which is a bar under Section 132, Cr.P.C.

11. In the result, the petition is allowed. Proceedings in PCR.94/12 on the file of JMFC, Sulia, resulting in filing of C.C.659/13 are hereby quashed.