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Judgment
S. S. Grewal, J.
This petition, under section 482 of the Criminal Procedure Code (hereinafter referred to as `the Code'') relates to quashment of complaint filed by Mohinder Singh against the present petitioner as well as against Head Constable Sukhjinder Singh under sections 342, 347 and Section 409 read with Section 34 I.P.C., (Annexure P2), letter (Annexure P3) whereby, Senior Superintendent of Police, Ludhiana informed the Judicial Magistrate, Ist Class. Ludhiana, regarding the attachment of pay of A.S.I. Joginder Singh and letter (Annexure P5) whereby the Judicial Magistrate Ist Class. Ludhiana had again requested the Senior Superintendent of Police. Ludhiana to attach the salary of A.S.I. Joginder Singh and Bead Constable Sukhjinder Singh under clause (a) or clause (c) or both of subsection (4) of Section 83 of the Code.
In brief, facts relevant for the disposal of this petition, as emerge from complaint (Annexure P2) are, that the complainant, who, was a licensee of Indian made foreign liquor, was running L2 vend under the name and style of M/s. Mohinder Singh & Co. at Overlock Road, Ludhiana, whereas Shri Kuldip Singh brother of the complainant, was running a L2 vend under the name and style of M/s. Kuldip Singh & Co., Link Road, Ludhiana. Father of the complainant was also running L2 vend under the name and style of M/s. Sardari Lal Makin & Co. at Sangeet Cinema Road, Ludhiana. Mool Raj and Inder Kumar were the salesman at firm M/s. Kuldip Singh & Co. L2 vend, Link Road, Ludhiana. The time for running the liquor vend was from 1000 A.M. to 1000 P.M. It was further alleged that on 28121984, the complainant went to the premises of firm M/s. Kuldip Singh & Co. for the collection of sale proceeds. After collecting the sale proceeds of the other two vends, at about 900 P.M. the complainant was taking the accounts of daily saleproceeds from his salesmen Shri Mool Raj and Inder Kumar, when a customer Shri Keshav came to purchase liquor. In the meantime, A.S.I. Joginder Singh with Head Constable Sukhjinder Singh came to L2 vend of M/s. Kuldip Singh & Co. and told the complainant, the salesmen and the customer that they were under arrest, as they had violated the orders of the district authorities by not closing the liquor shop at 8.00 P.M. A.S.I. Joginder Singh arrested the complainant along with aforesaid three persons and also took into possession about Rs. 19, 000/ and wrist watch from the possession of the complainant at the time of his arrest. The complainant told the A.S.I. and Head Constable that there was no such order for closing the shop at 8.00 P.M. and, that they had no authority to arrest them. The police officials, however, abused and obtained the signatures of the complainant as well as three others, on blank papers. Thereafter, the complainant and the aforesaid three persons were illegally and dishonestly arrested by the A.S.I. Joginder Singh under Section 188 of the Indian Penal Code and all these persons including the complainant were illegally confined in order to extort money from the complainant. The complainant and other three persons were released on bail in the Policestation on the following day, without, producing them before the Magistrate. Amount of Rs. 19,000/ was not shown by the said A.S.I. in Jamatalashi and the said A.S.I had dishonestly and fraudulently misappropriated the said amount for his own use. All these facts were brought to the notice of S.H.O. Division No. 6, Ludhiana, and, later on to the Senior Superintendent of Police, Ludhiana, and, later on to the higher authorities but no action was taken against the aforesaid police officials. It was further alleged that it was well within the knowledge of the police officials that there was no prohibitory orders for closing the vend at 8.00 P.M. in December, 1984.
The learned counsel for the parties were heard.
On behalf of the petitioner it was mainly contended that no cognizance against the police officials including the present petitioner can be taken under section 342, 347 and sections 409 read with section 34 I.P.C. as no prior sanction from the Government for the prosecution contemplated under subsection 2 of section 197 of the Code has been obtained; that both the police officials had acted, or, purported to have acted in discharge of their officials duties, and, the learned Magistrate is not competent to take cognizance against the police officials.
The question as to whether it was necessary to obtain any sanction u/s 197 (2) of the Code, on the basis of the plea put forth on behalf of the petitioner about the orders passed by the District authorities concerning closure of liquor shops at 800 P.M, as well as to notifications u/s 197(3) and 45 (2) of the Code bearing Nos, 31242H (1 83/7774, & 31242 H(1) 83/7773 dated 5.5.83 which are meant for providing protection to nongazetted officers and other ranks of the Police Department from prosecution without sanction of the State Government can be looked into by the trial Court itself. Such allegations have to be decided by the trial Court on the basis of the evidence produced before it by the parties to prove as to whether a valid order had been passed by the District authorities prohibiting the closure of liquor shops after 8.00 P.M. in the area of Ludhiana in December, 1984, or, not.
As far as the commission of offence in respect of misappropriation of alleged, embezzlement of Rs. 19,000/ mentioned in the complaint, is concerned, at this stage, it cannot be prima facie held that in respect of the said allegations A.S.I. Joginder Singh had acted, or, purported to have acted in discharge of his official duties. As such there does not seem to any legal bar for prosecution of the accusedpetitioner under section 409 I.P.C. This petition is accordingly dismissed.
Before parting with this judgment, it will be necessary to refer to sorry state of affairs, whereby, the two accused in this case who belong to a law enforcing agency have failed to appear in the trial Court for a period. of over four years. The orders passed by the trial Court for attachment of salary of the petitioner and his other coaccused had not the desired effect on the two accused, who are still in police service. Such negligence on the part of the petitioner or his other coaccused has to be depricated. In the circumstances of the case it is the duty of Senior Superintendent of Police, Ludhiana and higher police authorities to take appropriate action against the defaulting police officials including A.S.I. Joginder Singh petitioner and ensure their production in the trial Court on the next date of hearing. Copy of this order is directed to be sent to the Director General Police, Punjab State and Senior Superintendent of Police, Ludhiana for information and strict compliance. Both these authorities are also directed to intimate this court within two months about the action taken in the matter. A copy of this order be also sent to, the trial Court for compliance and the trial court would also inform to this Court through the Sessions Judge. Ludhiana in case two police officials including the present petitioner, fail to appear in the trial Court on the next date of hearing. Trial Court is also directed to dispose of this case expeditiously.
JUDGMENT accordinly.