Brijinder Rai, D.I.G.Police, Haryana vs State of Haryana

N.K. Agarwal, J.

This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, the `Code'') for quashing the criminal complaint (Annexure P1) filed by respondent No. 2, Vijay Pal Singh, Advocate, in the Court of Chief Judicial Magistrate, Bhiwani.

Respondent No. 2, Vijay Pal Singh, filed on September 26, 1987, a criminal complaint against K.K. Jalan, IAS, Deputy Commissioner, Bhiwani and Brijinder Rai, IPS, Senior Superintendent of Police, Bhiwani, alleging offences under Sections 120B, 342, 353 and 365, Indian Penal Code. It was stated in the complaint that the complainant, Vijay Pal Singh, Advocate, was contesting municipal election from Ward No. 25 of Municipal Committee, Bhiwani. Election was held on August 30, 1987. On that day, he was asked to leave the polling station though he was a candidate and had a right to enter and stay at the polling station. Both the Deputy Commissioner and Senior Superintendent of Police threatened and abused him when he protested. He was caught by the police men and made to sit in the Government vehicle. The complainant further alleged in his complaint that he was humiliated and forcibly abducted and also confined in the police vehicle. His wife, who was inside the polling booth as a polling agent, was also turned out of the polling station. He was brought at the residence of the then Deputy Chief Minister, Shri Banarsi Dass, where another Minister, Shri Dharam Pal, was also present. He was released after about half an hour.

Learned Counsel for the petitioner, Brijinder Rai, has argued that respondent No. 2 has already filed an application (C.M. No. 11315 of 1993) seeking permission to withdraw his complaint from the Court against K.K. Jalan. Therefore, there remains no sufficient cause to proceed with the prosecution of Brijinder Rai. It is also argued that, from the facts of the case, it is apparent that K.K. Jalan as well as Brijinder Rai were performing their official duty and were acting in the discharge of that duty. Therefore, their action could not be challenged without sanction under Section 197 of the Code. It is also pointed out that respondent No. 2 filed an application (Annexure P2) before the Chief Secretary, Haryana, seeking sanction for prosecution of K.K. Jalan and Brijinder Rai. It further showed that sanction for prosecution was necessary. In the absence of such sanction, no Court can take cognizance of the offence. In support of this argument, reliance is placed on a decision of the Supreme Court in Mohd. Hadi Raja v. State of Bihar, 1998(2) RCR(Criminal) 582.

On a consideration of the matter, it is noticed that the nature of the incident is specified in the criminal complaint filed against the petitioner. It is clear that the petitioner being the Senior Superintendent of Police was acting in the discharge of his official duty. Sanction under Section 197 of the Code was, therefore, necessary.

In view of the above discussion, the present petition is allowed. Cognizance of the offence taken by the Chief Judicial Magistrate, Bhiwani, is quashed.