K.N. Sharma (Kuldip N. Sharma) vs State of Gujarat and Another

Rajesh H. Shukla, J.—Amendment granted. Learned Sr. Counsel Mr. Raju is directed to carry out the amendment.

Rule. Service of rule is waived by learned Public Prosecutor Mr. Prakash Jani for respondent No. 1-State and learned advocate Ms. Archana Acharya for respondent No. 2.

The present petition has been filed by the petitioner, who is a senior officer of the rank of Addl. Director General of Police, praying for issuance of appropriate writ, order or direction quashing and setting aside the FIR at Annexure-F being C.R. No. I-8/2010 registered with CID Crime, Rajkot Zone, Bhuj-Kutchh Police Station, and also for stay of the proceedings with regard to the aforesaid complaint on the grounds set out in detail in the memo of the petition, inter alia, the mala fides, the delay and also the contentions with regard to the further proceedings which have taken place pursuant to the directions issued by the High Court in a Habeas Corpus Petition being Special Criminal Application No. 656/84 resulting in Sessions Case No. 42/88 and also Sessions Case No. 98/99.

Before adverting to the submissions advanced by both the sides with their own perceptions, shades and colours to the various submissions supported by pronouncements of the Hon''ble Apex Court, a few facts are required to be mentioned.

As stated in the FIR being C.R. No. I-8/2010 registered with the C.I.D. Crime, respondent No. 2, the first informant, has filed the aforesaid complaint with regard to the alleged encounter of two persons, one Umar and Fakir, on 10.5.1984 for which the brother of the complainant, Ibrahim Juma had given the complaint before the Court of Judicial Magistrate (First Class) at Bhuj against the police officers. It also refers to kidnapping and abduction of the father Juma Valimamad and elder brother Ibrahim who are said to have disappeared, and as he apprehends, have been killed. It also refers to the fact that the present petitioner was the DSP, Kutchh-Bhuj, at the relevant time and the uncle of the complainant, the first informant, had some quarrel with one Noormohmad Sodha and his aid Juma Ismail with whom the present petitioner is alleged to have had good relations and it is also stated that they were doing the activity of smuggling. It has a reference to the earlier Habeas Corpus petition being Special Criminal Application No. 656/84 filed before the High Court of Gujarat and the order dated 13.2.1985, wherein directions were given. Therefore, it has been alleged that the present petitioner as the head of the police department as DSP of Kutchh with his subordinates, one Mr. Bishnoi and others, had killed the aforesaid persons and the matter may be investigated with regard to the encounters and kidnapping.

It is required to be mentioned that as per the order passed by the Division Bench of this Court in Special Criminal Application No. 656/84 dated 13.2.1985 in a Writ of Habeas Corpus, directions were issued for producing the two persons Juma Valimamad, aged 78 years, and his son Juna aged 35 by the present petitioner who was the DSP, Kutchh and one Mr. Bishnoi, Reserve Police Sub-Inspector, and as recorded by the Division Bench in the said order with regard to the incident, a regular evidence was recorded considering the nature of allegations and the seriousness of the matter and the witnesses came to be examined on behalf of the petitioner and the respondents also and thereafter the aforesaid Special Criminal Application No. 656/84 for a Writ of Habeas Corpus was disposed of with a direction that the investigation be taken over by some agency at the State level like the CID Crime or the CBI so that there is full investigation of the crime registered at Bhuj Taluka Police Station being C.R. No. I-257/84. It was also observed that the truth may be brought to light and on the basis thereof, ultimately, the charge sheet was submitted before the Court of the Chief Judicial Magistrate, Bhuj, being Criminal Case No. 30/98, which was then committed to the Court of Sessions and registered as Sessions Case No. 98/99 and had resulted in acquittal of the accused Mr. Bishnoi of the charges for the offences u/s 341, 342, 364, 365, 506(2) of IPC vide judgment and order dated 7.6.2005 by the learned Addl. Sessions Judge, Fast Track Court No. 2, Bhuj-Kutchh.

Similarly another Sessions Case No. 42/88 was, as stated above, was registered with regard to the encounter for various offences u/s 147, 148, 307, etc. for which the complainant therein Ibrahim Juma had lodged a private complaint before the Court of Chief Judicial Magistrate, Bhuj for inquiry u/s 202 of Cr.P.C. and on the basis thereof it was registered as Inquiry Case No. 8/84 and the complaint qua other police officers No. 1 to 6 and 8 to 10 was dismissed, except against one Mr. Bishnoi, Reserve Police Sub-Inspector, who was original accused No. 7. The said case was ultimately tried as Sessions Case No. 42/88 for the alleged offences including the offence u/s 302 of IPC and had resulted in the acquittal of the sole accused Mr. Bishnoi, vide judgment and order dated 12.8.2004 by the Addl. Sessions Judge, Fast Track Court No. 4, Bhuj-Kutchh. There is no appeal against the said order and the matter rested there.

It is in this background of facts, the present petition has been filed under Article 226 of the Constitution of India r/w Section 482 of CrPC for the prayer of quashing the complaint being C.R. No. I-8/2010 registered with CID Crime, Rajkot Zone, Bhuj-Kutchh Police Station on the grounds which have been stated in detail in the Memo of Application and also by way of amendment.

Learned Sr. Counsel Mr. S.V. Raju appearing for the petitioner referred to the FIR at page 94 and submitted that the allegations are vague and it refers to three incidents, but it has no reference to the present petitioner. He pointedly referred to the record and submitted that one incident refers to disappearance of two persons and there is nothing alleged against the present petitioner. The second incident refers to killing of the two persons for which it is stated that a fax message was sent to the petitioner, who was DSP then, and the third incident is with regard to the complaint for offence u/s 307 of IPC.

9.1 Learned Sr. Counsel Mr. S.V. Raju referred to the private complaint filed by one Ibrahim Juma in the year 1984 before the Court of the Chief Judicial Magistrate against the police officials and submitted that the private complaint was filed by one Ibrahim Juma against 10 police officers, but the name of the present petitioner was not there and the applicant could have taken appropriate steps to arraign the present petitioner as an accused. Learned Sr. Counsel Mr. S.V. Raju therefore submitted that in fact the present complaint is given on the basis of mere hearsay as to what was stated to him. The original complainant Ibrahim Juma in his complaint before the Chief Judicial Magistrate has not referred to the present petitioner. Learned Sr. Counsel Mr. S.V. Raju submitted that as it was a complaint before the Court of the Chief Judicial Magistrate u/s 202 of Cr.P.C., the evidence was recorded and ultimately the said complaint was dismissed against nine police personnel, except against Mr. Bishnoi, who was later on tried and acquitted in Sessions Case No. 42/88 by the learned Addl. Sessions Judge, Fast Track Court No. 2, Bhuj-Kutchh.

9.2 Similarly, Learned Sr. Counsel Mr. S.V. Raju submitted that in another Sessions Case No. 98/99 also Mr. Bishnoi was acquitted. He submitted that the applicant could have made necessary application at the relevant time as, before the judgment could be given in the aforesaid two cases, he had attained majority and he could have taken appropriate steps including making the present petitioner as an accused and/or for additional evidence or for joining the present petitioner as an accused u/s 319 of Cr.P.C. Learned Sr. Counsel Mr. S.V. Raju referring to these details has submitted that it is too late now to make any investigation and rope in the present petitioner in such false complaint on the basis of vague allegations and suspicion.

9.3 In support of his submission, Learned Sr. Counsel Mr. S.V. Raju referred to and relied upon the judgment of the Hon''ble Court reported in State of Karnataka Vs. Arun Kumar Agarwal and Others, in the case of State of Karnataka v. Arun Kumar Agarwal and Ors. Similarly, Learned Sr. Counsel Mr. S.V. Raju has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Chunduru Siva Ram Krishna and Another Vs. Peddi Ravindra Babu and Another, and strenuously submitted that the court may exercise the inherent jurisdiction u/s 482 for quashing of the proceedings/complaint in the facts of the case when there is a delay of about 26 years regarding the incident which is complained of. He emphasized the observations in Para 34 to 36 and submitted that in the present case also there are vague allegations without any specific role attributed to the present petitioner.

9.4 He has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Neelu Chopra and Another Vs. Bharti, and emphasized the observations made in Para 9, 10 and 11 that the necessary ingredients for the alleged offences are not made out and mere mention of the Sections would not be sufficient.

9.5 Learned Sr. Counsel Mr. S.V. Raju referring to the papers submitted that there is a gross delay of about 26 years and it has not been explained and therefore it would amount to abuse of the process of law. He submitted that the complainant, the first informant, has not explained with regard to his absence during all this time and how the present complaint has been filed. It has been emphasized by Learned Sr. Counsel Mr. S.V. Raju that if the present complaint is not quashed and set aside, it would affect the right of the petitioner under Article 21 of the Constitution of India, which provide for the right to speedy trial and investigation as this judgment, referring to Article 21, has made a reference to both the trial and the investigation. He also emphasized the observations made in para 24,

It is well settled that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to all that proceedings in the court, but also includes within its sweep the preceding police investigation as well.

Therefore, Learned Sr. Counsel Mr. S.V. Raju referring to the observations made in this judgment submitted that it would amount to violating the fundamental and constitutional rights of the petitioner under Article 21 of the Constitution of India.

9.6 Learned Sr. Counsel Mr. S.V. Raju referred to the averments in the petition with regard to the mala fide and vengeance to support his submissions specifically referring to his allegations qua his ACRs noted by the Hon''ble Chief Minister and also the proceedings before the Central Administrative Tribunal (CAT) and insignificant postings given go him and the bias and prejudice. He has referred to these averments to put forward his case with regard to the bias and vengeance and submitted that it would be covered by the seventh Clause of guideline laid down in a judgment of the Hon''ble Apex Court reported in 1992 Supp (1) 335 in the case of State of Haryana and Ors. v. Bhajan Lal and Ors., and strenuously submitted that it was also a case with regard to exercise of discretion u/s 482 and the Hon''ble Apex Court has laid down the guidelines to which he pointedly referred to and submitted that one of the grounds mentioned in the guidelines at Serial No. 7 is "where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." Learned Sr. Counsel Mr. S.V. Raju referring to the averments has therefore submitted that it is only because of such mala fide and vengeance the complaint has been filed.

9.7 Learned Sr. Counsel Mr. S.V. Raju has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Priya Vrat Singh and Others Vs. Shyam Ji Sahai, which has again referred to Bhajan Lal''s case (supra) and Learned Sr. Counsel Mr. S.V. Raju has referred to the observations therein and submitted that in that case also it was noted that there was no explanation and no action was taken for 2 years. He emphasized and submitted that in the facts of the present case 26 years have passed and in any case after the sessions Court has recorded the acquittal against the sole accused Mr. Bishnoi who was tried in Sessions Case Nos. 42/88 & 98/99, there is no appeal and even during the trial no such applications have been made to join the petitioner as an accused. He pointedly referred to the observation, "All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist)" made in para 11 of this judgment and submitted that though inherent jurisdiction u/s 482 is required to be exercised sparingly and carefully, it can be exercised ''to do real and substantial justice for the administration of which alone the courts exist.''

9.8 Learned Sr. Counsel Mr. S.V. Raju has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Sundar Babu and Others Vs. State of Tamil Nadu, again referring to the scope of exercise of jurisdiction u/s 482 and the guidelines laid down in Bhajan Lal''s case (supra) to support his submissions. He has also referred to the papers and submitted that the incidents referred to in the present complaint are three for which a single FIR has been filed. It was submitted that there could not have been a single complaint or FIR for three separate transactions or incidents.

9.9 Again, referring to the aspect of delay, Learned Sr. Counsel Mr. S.V. Raju referred to Section 161 of the Bombay Police Act and submitted that the complaint or FIR is barred u/s 161 of the Bombay Police Act which expressly provides that no such complaint could be registered in respect of the act done in exercise of duty. In support of his submission, he has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of K.K. Patel and Another Vs. State of Gujarat and Another, He referred to this judgment and submitted that the scope of the provision is required to be considered and submitted that the words "under colour of duty" used in Section 161 have been considered and interpreted to include the acts done under the cloak of duty. Learned Sr. Counsel Mr. S.V. Raju submitted that in that case also allegations were made with regard to preparing false panchnama and false report and still it was considered that such complaint could not have been filed beyond the limitation provided u/s 161 of the Bombay Police Act. Therefore, Learned Sr. Counsel Mr. S.V. Raju referring to and relying upon this judgment emphasized that in view of the statutory provision expressly prohibiting that taking cognizance with regard to the act done in exercise of duty the present complaint would be barred.

9.10 Learned Sr. Counsel Mr. S.V. Raju also referred to and relied on the judgment of the Hon''ble Apex Court in the case of Virupaxappa Veerappa Kadampur Vs. The State of Mysore, and submitted that the words "under colour of duty" has been explained and considered. He has also referred to and relied upon the judgment/order of this Court (Coram: C.K. Buch, J.) in Special Criminal Application No. 1040/97. Therefore, Learned Sr. Counsel Mr. S.V. Raju submitted that the petition may be admitted and interim relief granted may be confirmed against any further proceedings on the basis of the complaint.

Mr. Kamal Trivedi, learned Advocate General, appearing for the respondent No. 1-State has stated, at the outset, that the predicament of the State may be considered inasmuch as on one hand if the complaint or FIR alleging about the serious offences about the encounter and kidnapping by the police officials like the petitioner is not registered, it would blame the State and the police authorities by the complainant, the first informant, respondent No. 2 herein. On the other hand, when the FIR or the complaint is registered by the concerned police officials, which they are under obligation to register once the complaint discloses cognizable offence, all the wild allegations are made to make out a ground for mala fide and vengeance against the State, including the Hon''ble Chief Minister. Learned Advocate General Mr. Trivedi submitted that though such allegations have been made to make out a ground for mala fide, it may not be entertained as the present proceedings are for quashing the complaint u/s 482 of Cr.P.C and reference to the ACR grading and insignificant postings, etc. are separate issues considered by the competent forum, namely, CAT as well as the High Court. Further, he has submitted that the allegations are made to make out a ground for mala fide.

10.1 Learned Advocate General Mr. Trivedi has made a reference to the observations made by the Hon''ble Apex Court in a judgment in the case of Parkash Singh Badal and Another Vs. State of Punjab and Others, wherein it has been observed,

A plea of mala fides has not only to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegations and suspicions would not be sufficient. The person against whom mala fide conduct is attributed is interestingly not a party in the proceedings.... Merely because the political opponent was the complainant that does not per se lead to an inference that the complaint has to be thrown out or that no notice should be taken thereof.

Again, the learned Advocate General referring to this judgment has emphasized the obligation cast upon the officer in-charge of the police station to register the offence.

10.2 He has also referred to the judgment in the case of State of Maharashtra and others Vs. Ishwar Piraji Kalpatri and others, and emphasized that mere such allegations of mala fide intention cannot be a reason for quashing the First Information Report as this Court could not embark upon judging the probability, reliability or genuineness of the allegations made in the complaint at this stage. He has emphasized and submitted that the investigation is only at the threshold and the investigation is being done and if at all there is any material and evidence, he would have his remedy, but the investigation which is at the initial stage cannot be thwarted. He submitted that by making the allegation he cannot get away without facing the charges. It was submitted that the petitioner may, on the contrary, as a senior officer, should co-operate with the investigation and he can say whatever he wants to say and ultimately if there is no nothing the matter will take its own course. Therefore, Learned Advocate General Mr. Trivedi submitted that at this stage the court may not entertain this petition.

10.3 Learned Advocate General Mr. Trivedi has also submitted referring to the complaint that though the learned Counsel for the petitioner has referred to the two Sessions Cases where acquittal has been recorded, the court may take notice of the fact about the serious allegations made for which even the Division Bench of this Court, while passing the order in Special Criminal Application No. 656/84 dated 13.2.1985, had recorded the evidence and thereafter had directed further investigation by CID Crime or the CBI. He further submitted that the charges are with regard to the encounter, kidnapping and the petitioner who was the DSP at Kutchh and others were his subordinates and as stated in the complaint a telegram was also sent to him which he has not explained with regard to his bona fides or the steps taken by him. Learned Advocate General Mr. Trivedi has also referred to the observations made by the learned Sessions Judge while deciding Sessions Case No. 42/88 making the observation with regard to the manner of investigation wherein it is specifically stated that when the doctor had opined that the death has been caused by firing from the rifle/service revolver, no such weapon has been recovered. The opinion of the ballistic expert has not been obviously obtained that if the bullet is found from the dead body, necessary evidence is required to be gathered. Learned Advocate General Mr. Trivedi has submitted that the court had also made a specific observation that had the investigation been made properly or by the CBI, the result could have been different and therefore he had recorded that the benefit of doubt is given.

10.4 Learned Advocate General Mr. Trivedi has therefore submitted that merely because there is delay would not be a ground to brush aside everything, particularly when the National Human Rights Commission has also issued guidelines for registering FIR/offence of such violation of human rights.

10.5 Learned Advocate General Mr. Trivedi submitted that mere say of the petitioner that the concerned persons have been acquitted is required to be considered in background of the totality of the facts and circumstances and also considering the further fact that the petitioner was head of the district police administration as DSP and therefore his name may not have been there as stated in the complaint itself. Further, his brother was the Collector of the district and therefore it was not brought to light and the appeal may not have been preferred. He further submitted that though the submissions have been made referring to the FIR that there is no specific allegation with regard to the role of the petitioner, the same is without substance. A bare perusal of the FIR would make it clear about the charges levelled against the petitioner. Learned Advocate General Mr. Trivedi referred to and relied upon the judgment in the case of Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, He has also referred to and relied upon this judgment reported in State of West Bengal Vs. Narayan K. Patodia,

10.6 Learned Advocate General Mr. Trivedi strenuously submitted that at no point of time the role of the petitioner was investigated, and as observed by the Sessions Court, it would make it clear that the investigation was not made properly. He submitted that the High Court while passing the order in Special Criminal Application No. 656/84 had given the direction and the present complainant is the son who was a minor at the relevant time whose father was killed and therefore the matter is required to be investigated for which the petitioner cannot have any grievance and he can come out with flying colours. He also submitted that in fact the FIR conveys a lot more and submitted that the lapse of time should not be construed that it is a closed and shut case for all time to come.

10.7 In support of his submission he has referred to and relied upon the judgment of the Hon''ble Apex Court reported in the case of State of Karnataka v. Arun Kumar Agarwal and Ors., (supra) referred to by learned Sr. Counsel Mr. Raju for the petitioner and submitted that in this case the investigation was permitted and reference is made to the earlier judgment in the case of Vineet Narain and others Vs. Union of India and another, and he submitted that in that case also the probe had not proceeded properly as the persons involved were holding high positions.

10.8 Learned Advocate General Mr. Trivedi again referred to the FIR in the present case at page 94 and submitted that the allegations cannot be said to be vague. He has also produced some of the statements recorded pursuant to this complaint and submitted that the court may peruse such statements.

10.9 Learned Advocate General Mr. Trivedi has referred to the delay and submitted that much emphasis given referring to Section 161 of the Bombay Police Act has to be considered in light of the guidelines issued by the National Human Rights Commission and the issue involved. He submitted that the bar u/s 161 would not apply in such cases and when there are allegations about the violation of human rights with the allegations of offence u/s 120B that at the instance and behest of the present petitioner the subordinates, including Mr. Bishnoi, had carried out the operations resulting in death of human lives. Therefore, it was submitted that the relevant aspect would be whether it can be said to be in exercise of duty or not and the words "colour of duty" which has been much emphasized cannot be considered as such an act or crime cannot be said to have been committed in exercise of his duty for which one can claim protection u/s 161 of the Bombay Police act.

10.10 Learned Advocate General Mr. Trivedi has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of State of Maharashtra Vs. Narharrao, and has also referred to and relied upon the judgment reported in AIR 1968 SC 1323 in the case of Bhanuprasad Hariprasad Dave and Anr. v. The State of Gujarat and particularly the observations made in para 9 and emphasized that "under Section 161 of the Bombay Police Act, 1951, the words "under colour of duty" have been used to include acts done under the cloak of duty, even though not by virtue of the duty...."

10.11 Learned Advocate General Mr. Trivedi therefore submitted that the investigation is at the threshold and no investigation is made yet and therefore these allegations of mala fide are premature and if the investigation is not permitted to be made, the State could be blamed for not complying with the directions of the National Human Rights Commission and also the allegations that may be made by the complainant.

10.12 Learned Advocate General Mr. Trivedi has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of K.K. Patel and Anr. (supra) and submitted that the Hon''ble Apex Court had considered the provisions of Section 161 of the Bombay Police Act and has considered and interpreted the words "under the colour of duty". He pointedly referred to the observations in Para 10 and emphasized the observations in Para 15 of the judgment referring to the earlier judgment of the Hon''ble Apex Court in the case of Virupaxappa Veerappa Kadampur (supra) which is also quoted that "when the colour is assumed as a cover or a cloak for something which cannot properly be done in performance of the duty or in exercise of the right" and therefore there cannot be any protection. He again referred to the judgment in the case of Bhanuprasad Hariprasad Dave (supra) and submitted that in para 9 it has been specifically observed,

All that can be said in the present case is that the first appellant a police officer, taking advantage of his position as a police officer and availing himself of the opportunity and authority afforded by the letter Madhukanta handed over to him, coerced Ramnanlal to pay illegal gratification to him. This cannot be said to have been done under colour of duty. The charge against the second appellant is that the he aided the first appellant in his illegal activity.

Learned Advocate General Mr. Trivedi submitted that it was a case with regard to corruption charges and still it cannot be said that it was any colour of duty and there has to be a connection between the duty performed and the act done, which is not the case here. He submitted that in any case it is a matter of further investigation and therefore the court may not stop the investigation which is at the threshold.

10.13 Learned Advocate General Mr. Trivedi also submitted that the submission made by the learned Counsel for the petitioner that there cannot be one FIR for three different incidents cannot be accepted in view of the clear observations made by the Apex Court in a judgment reported in the case of Nirmal Singh Kahlon Vs. State of Punjab and Others, wherein the Hon''ble Apex Court, in para 60, has specifically observed and quoted referring to the earlier judgment of 3-Judge Bench of the apex court in the case of Upkar Singh v. Ved Prakash reported in (2004) 13 SCC 292:

From the above it is clear that even in regard to a complaint arising out of a complaint on further investigation if it was found that there was a larger conspiracy than the one referred to in the previous complaint then a further investigation under the court culminating in another complaint is permissible.

Learned Advocate General Mr. Trivedi has referred to this observation with further observations in para 67 that if the investigation was not proper and the aspect of conspiracy was left out from the purview of the investigation in the earlier case or the incidents, then it would not bar such investigation. Learned Advocate General Mr. Trivedi submitted that the ultimate object is to find out the truth for which even the Division Bench of this Court has earlier observed in Special Criminal Application No. 684/84 and has also given the directions.

10.14 Learned Advocate General Mr. Trivedi has also referred to and relied upon the judgment reported in Sakiri Vasu Vs. State of U.P. and Others,

Learned Sr. Counsel Mr. S.B. Vakil for respondent No. 2 original complainant has submitted that the prayer in the present petition is for quashing the registration and not the complaint. He referred to Section 154 of Cr.P.C. and submitted that when the information about a cognizable offence is made, the police are bound to register the offence and it has to be investigated on the basis of the factual foundation. In support of this submission, he has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Rajesh Bajaj Vs. State NCT of Delhi and Others,

11.1 Learned Sr. Counsel Mr. Vakil submitted that quashing of a complaint is different from registration of a complaint and the complaint is filed to start the investigation and when the FIR is made, the investigation is made and the court would not consider whether it would result in acquittal or conviction and it has to consider prima facie the allegations whether it is regarding cognizable offence or not. If it discloses the allegations about cognizable offence, then, the court should be slow in interfering with the investigation and the FIR cannot be quashed in exercise of powers u/s 482.

11.2 He emphasized that the prayer is for quashing the complaint and not qua registration. It was submitted that, therefore, when the complaint is registered, the investigation would follow. He referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Parkash Singh Badal and Another Vs. State of Punjab and Others, and referring to para 68 it was submitted that when any information disclosing a cognizable offence is led before the officer in-charge of the police station satisfying the requirement of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register the case on the basis of such information.

11.3 He therefore referred to the complaint and submitted that the narration in the complaint clearly referred to a serious cognizable offence and on that basis a complaint has been registered. Learned Sr Counsel Mr. Vakil submitted that the submission that the allegations in the FIR are vague and does not refer to any specific role also cannot be believed in view of the observations made by the Hon''ble Apex Court in a judgment in the case of Suresh Chand Jain Vs. State of Madhya Pradesh and Another, Referring to this judgment, Learned Sr Counsel Mr. Vakil submitted that as observed in the judgment, it is not necessary that every ingredient has to be stated and if one or more ingredients are clearly stated, it would be sufficient to set the investigation into motion. He has also referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Rajesh Bajaj Vs. State NCT of Delhi and Others, in support of his submission and submitted that the test to be applied is, does the complaint disclose about a cognizable offence and whether it provides the basis for investigation or not. Learned Sr Counsel Mr. Vakil further submitted that if the complaint discloses a cognizable offence, the police officer has to register the offence. In support of this submission, he has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Ramesh Kumari Vs. State (N.C.T. of Delhi) and Others, as well as in a judgment in the case of Lallan Chaudhary and Ors. v. State of Bihar and Anr. reported in (2006) 12 SCC 229.

11.4 Learned Sr. Counsel Mr. Vakil also submitted that once the complaint for a cognizable offence has been registered, then, the investigation has to proceed. He referred to the judgment of the Hon''ble Apex Court in the case of Bhajan Lal (supra) and submitted that as laid down in this judgment, the investigation of a cognizable offence is a field exclusively reserved for the police officers whose powers are unfettered so long as such powers could be exercised in accordance with the provisions of law.

11.5 Learned Sr. Counsel Mr. Vakil further referred to the provisions of Section 161 of the Bombay Police Act and submitted that this provision has no application as the registration of FIR is mandatory as required u/s 154 of Cr.P.C. He further submitted that the provisions of Section 161 further provides that the act must be in respect of an act done under the colour or in discharge of duty. Learned Sr. Counsel Mr. Vakil submitted that it is not so in the present case. He submitted that registration of the FIR is not the prosecution. Prosecution would mean trial of the proceedings which is a separate stage envisaged in law.

11.6 He therefore submitted that after the investigation when the material is placed before the court for framing of charge, whether the court would enter upon the trial after framing of the charge based on the material is a separate issue. He emphasized that at that stage the accused or the petitioner will also have an opportunity to contest by appropriate application for discharge. Therefore, Learned Sr. Counsel Mr. Vakil submitted that at this stage the investigation may not be stopped in exercise of the discretion u/s 482 of Cr.P.C. which is required to be exercised very sparingly.

11.7 Learned Sr. Counsel Mr. Vakil also referred to the aspect of colour of duty and submitted that with the allegations made, can it be said that the act was done under colour of duty?

11.8 Learned Sr. Counsel Mr. Vakil referred to the FIR and submitted that the allegations are made that the FIR is registered at the behest of the State Government including the mala fides. However, he submitted that respondent No. 2-complainant is not concerned with the petitioner''s fight with the government with regard to his proceedings before the CAT, his postings or promotion and it cannot be mixed up. He submitted that there are no allegations against respondent No. 2 and he was a minor at the relevant time and he has lost the persons in his family for which he is now setting the law into motion for getting justice.

11.9 Learned Sr. Counsel Mr. Vakil submitted that much emphasis has been given referring to the earlier Sessions Cases and the acquittal that after the investigation for the same incident has resulted in trial of the concerned accused and also acquittal, the second FIR could not be filed is misconceived. In support of his submission learned Sr. Counsel Mr. Vakil referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Upkar Singh v. Ved Prakash and Ors. reported in (2004) 13 SCC 292, and emphasized the observations made in Para 15, 18, 21 and 24 and he also emphasized that as observed in this judgment, even if the first complaint is registered, it is possible to file further complaint based on the material gathered subsequently. He further emphasized referring to the observations in Para 24 that the Hon''ble Apex Court has clarified that the right of an aggrieved person to file a counter claim has to be considered and it is permissible.

11.10 Similarly, Learned Sr. Counsel Mr. Vakil has referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Bank of Rajasthan v. Keshav Bangur and Anr. reported in (2007) 13 SCC 145, and submitted that there is a specific observation made quoting from the earlier judgment that when there are different versions in respect of the same episode or transaction, it could take shape of two different FIRs and investigation can be carried on under both the FIRs by the investigating agency.

11.11 Learned Sr. Counsel Mr. Vakil referred to the aspect of delay and submitted that the delay by itself is not a ground for not entertaining any proceedings, and again referring to the judgments and observations of the Hon''ble Apex Court, as stated above in a judgment reported in the case of Lallan Chaudhary and Ors. (supra), he submitted that even delayed complaint could be considered in the interest of justice.

11.12 Learned Sr. Counsel Mr. Vakil further submitted that it is also not so that the delay has caused any prejudice. He referred to the judgment in the case of Ram Chand and Others Vs. Union of India (UOI) and Others, and referred to the observations in Para 16. He submitted that as observed, by not initiating or delay in initiating the proceedings cannot be said to have caused any prejudice.

11.13 Learned Sr. Counsel Mr. Vakil again emphasized referring to the facts of the case that the petitioner was the head of the police department in the district and the persons from the family of the complainant have been killed and it was the duty of the petitioner to protect lives of the people in the district, which he has failed to discharge in spite of the telegram sent to him. He therefore submitted that he cannot now complain of delay and he cannot say that prompt action has not been taken. As a matter of fact, it was for the petitioner to take appropriate action which he has failed to take as there was connivance and the allegations in the FIR that at the behest of the petitioner, his officers had done the encounter and committed the offence as alleged which is required to be investigated.

11.14 Learned Sr. Counsel Mr. Vakil referred to and relied upon the judgment in the case of Dr. Kashinath G. Jalmi and another Vs. The Speaker and others, and submitted that the ultimate object should be protecting the interest of the people and thereby promoting public interest. He submitted that in that case the court has considered the powers of the Speaker and the Hon''ble Apex Court had considered the provisions of the limitation prescribed by law in invoking the writ jurisdiction. He submitted that ultimately it is the good governance and the criminal justice system which has to be considered and any person can set the criminal law in motion. He submitted that respondent No. 2 is an affected party and he has a fundamental right to life and the persons who were killed also had a right to life and therefore on such ground of delay the doors should not be closed.

11.15 Learned Sr. Counsel Mr. Vakil submitted that the submissions made by the learned Counsel for the petitioner with regard to mala fide and vengeance with political colour cannot be accepted. He emphasized and submitted that the learned Advocate General has dealt with the case referring to the judgment of the Hon''ble Apex Court in the case of Parkash Singh Badal and Anr. (supra) and also in the case of B. Jagdish and Another Vs. State of A.P. and Another, and submitted that he is raising such contention as defence which would not be available as, for the purpose of quashing of the complaint filed by respondent No. 2, his allegations qua his promotion and the mala fide action of the State would not be relevant. Therefore, he submitted that considering the scope of discretion u/s 482 which is required to be exercised with utmost care and circumspection, it does not call for any such exercise of discretion in the present case.

Learned Sr. Counsel Mr. Raju referred to the submissions made and he tried to submit with regard to the vicarious liability referring to the judgment of the Hon''ble Apex Court in the case of Maksud Saiyed Vs. State of Gujarat and Others, and the judgment in the case of Nirmal Singh Kahlon (supra). He submitted referring to the observations in the case of Nirmal Singh Kahlon (supra) that no finality had attached with that case, whereas the facts in the present case are totally different. He further submitted referring to the alleged offence of conspiracy u/s 120B of IPC and submitted that though it is vaguely referred to, not a whisper is made about the conspiracy. There are no allegations with regard to conspiracy and therefore these submissions cannot be believed.

12.1 Learned Sr. Counsel Mr. Raju referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Neelu Chopra and Another Vs. Bharti, and submitted that mere mention of the Sections would not be sufficient, particulars and the role in the offence have to be specifically stated.

12.2 He has also submitted that Section 161 of the Bombay Police Act prohibits such complaint and again he referred to the colour of duty which has been explained and considered in various judgments. He emphasized the observations made in a judgment in the case of Sankaran Moitra Vs. Sadhna Das and Another, and submitted that though the reference is made to Section 197, however, the material which can be placed by the person accused of like the petitioner can be considered.

12.3 Learned Sr. Counsel Mr. Raju also referred to the judgment reported in State of Bihar Vs. Baidnath Prasad @ Baidyanath Shah and Another, and submitted that in that case the charge was not framed, whereas in the facts of the present case 10 police officers were accused and in a complaint before the Magistrate, ultimately, the complaint was dismissed qua all, except one, who was later tried and acquitted. Therefore, it was submitted that it cannot be now re-opened after 26 years. Otherwise, it would amount to double jeopardy or vexatious litigation.

12.4 Learned Sr. Counsel Mr. Raju submitted that respondent No. 2 complainant was a major subsequently when the trial had proceeded and the acquittal was recorded and at that time he could have come forward making appropriate application including an application u/s 319, which was not made. He referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Palanisamy Gounder and Anr. v. State represented by Inspector of Police reported in (2005) 12 SCC 327 and submitted that at that time, had an application been made, even the court would have considered and it was incumbent upon the prosecution before impleading the petitioner as an accused to satisfy about sufficient evidence. He submitted that as observed in this case, without any solid foundation, it may not be necessary to implead the present petitioner as an accused and therefore as there was no sufficient material he may not have been impleaded as an accused even if such an application was made and therefore, now, at this stage, it cannot be reopened.

12.5 Learned Sr. Counsel Mr. Raju further referred to and relied upon the judgment of the Hon''ble Apex Court in the case of Michael Machado and Another Vs. Central Bureau of Investigation and Another, and submitted that as observed in this judgment, mere suspicion would not be sufficient and it was held that there was no justification for proceeding against the appellant by recommencing the trial. Learned Sr. Counsel Mr. Raju submitted that, that was when the trial was in progress and still the court declined to permit such an application u/s 319 of Cr.P.C., whereas in the facts of the present case, the acquittal of the accused has been recorded against which there is no appeal, and even at the stage of appeal, the respondent No. 2 complainant could have made some application when the State has not filed any appeal.

12.6 Therefore Learned Sr. Counsel Mr. Raju submitted that it is not permissible in law to reopen the entire case. He submitted that when the entire issue has reached finality, it cannot be reopened on the ground of ''issue estoppel''. In support of his submission, he has referred to and relied upon the judgment in the case of Bhagat Ram Vs. State of Rajasthan, and emphasized the observations made therein.

12.7 Similarly, he has referred to the judgment of the Hon''ble Apex Court reported in The State of Rajasthan Vs. Tarachand Jain, and emphasized the observations made in para 14.

12.8 Lastly, Learned Sr. Counsel Mr. Raju referred to the judgment reported in (2006) 13 SCC 252 in the case of State, CBI v. Sashi Balasubramanian and Anr., and submitted that the word ''prosecution'' has been considered and it has been specifically observed in Para 29 and 30 that the term ''prosecution'' would include institution or commencement of a criminal proceeding. He also submitted and emphasized the observation,

In its wider sense, the prosecution means a proceeding by way of indictment or information, and is not necessarily confined to prosecution for an offence.

He, therefore, submitted that the submission made by learned Sr. Counsel Mr. Vakil for respondent No. 2, referring to this aspect and registration of the complaint, may not be accepted.

12.9 He also submitted that the gross delay may also be considered as it would affect his right of speedy trial which may also include right of speedy investigation.

In view of rival submissions, it is required to be considered whether the discretionary jurisdiction u/s 482 of Cr.P.C. can be exercised and whether the peculiar facts and circumstances call for exercise of such discretion or not.

13.1 There cannot be a quarrel with regard to the scope of the discretion u/s 482 that it has to be exercised with care and circumspection. Though the words ''rarest of rare case'' was emphasized to suggest the limitations on the power, it is required to be appreciated that the Hon''ble Apex Court in a judgment in the case of Som Mittal Vs. Government of Karnataka, has considered this aspect analyzing the judgments which have been observed in para 9 that the words "the rarest of rare cases" are used after the words "sparingly and with circumspection", meaning thereby, what was intended to be conveyed was that such power has to be exercised sparingly and with circumspection and reference is made to other judgments including the judgment of the Hon''ble Apex Court in the case of Bhajan Lal (supra) laying down guidelines with regard to exercise of discretion.

13.2 Therefore, it is well accepted that the wider the discretion, more circumspection is called for and in this judgment also the Hon''ble Apex Court has observed that it has to be exercised with care and circumspection depending upon the facts and circumstances of each case. Therefore, when the submissions have been made on this aspect as well as other aspects by the learned Counsels with their perception and different shades referring to the same judgments, the court is required to appreciate it in context of the facts and the ultimate object underlying the criminal jurisprudence.

13.3 Therefore, the undisputed facts brought on record are required to be considered that the said incident or the transaction had taken place 26 years back. A petition for Habeas Corpus was filed before this Court and the Division Bench of this Court had, in Special Criminal Application No. 656/84, by its order dated 13.2.1985, after recording the evidence in the High Court itself gave directions with regard to further investigation by the CID Crime or the CBI, and as it transpires, Sessions Case No. 98/99 was ultimately registered resulting in acquittal of the accused therein, Mr. Bishnoi, against which no appeal has been filed after the judgment was delivered by the Sessions Court on 7.6.2005.

13.4 Similarly, a private complaint was filed by Ibrahim Juma Mokha before the Court of Judicial Magistrate (First Class) at Bhuj against 10 police personnel, which didn''t figure the name of the petitioner herein, and on the basis thereof, the learned Judicial Magistrate had ultimately dismissed the complaint qua 9 police personnel and only had registered the complaint qua Mr. Bishnoi, who was then tried in Sessions Case No. 42/88 for the offence u/s 302. The said judgment has referred to the lapse in the investigation like not recovering the revolver or the rifle, not calling for report of the ballistic expert and also expressing that had it been investigated by an independent agency like the CBI, it could have been a different matter and therefore the benefit of doubt was given. Tough it has been observed in the judgment at that time that there is no other option with the court, it cannot be accepted as the court could have, in exercise of the power under the Cr.P.C., call for further evidence or additional evidence.

13.5 In any view of the matter, when the said judgment was delivered by the Sessions Court on 12.8.2004, respondent No. 2, who is the relative of the complainant before the Magistrate, at whose instance ultimately the aforesaid Sessions Case No. 42/88 was registered against one Mr. Bishnoi, could have taken steps as it related to the same incident of death of his family member. Therefore, after he became major he could have taken appropriate steps. Assuming that at that time the court has not taken the steps, he could have filed an application for bringing additional evidence on record or any other proceedings could have been initiated as may be advised or at least he could have moved the High Court when no appeal was preferred.

13.6 Further, before the judgment was delivered in the aforesaid Sessions Case No. 42/88, or even in Sessions Case No. 98/99, respondent No. 2 complainant could have given an application for arraigning the present petitioner as an accused or at least for further investigation or additional evidence. This has not been done.

13.7 It is in background of these facts, which would stare in the face, the complaint has been filed by respondent No. 2, which undoubtedly discloses a cognizable offence of a serious nature, and in light of the settled legal position that once a complaint u/s 154 of Cr.P.C. disclosing a cognizable offence is made, the concerned police officer is under obligation to register it as the mandatory nature of Section 154 requires registering the same. Therefore, it has been registered also.

13.8 The moot question, therefore, is that on one hand is the law as it stands for registration of an offence and on the other the peculiar facts and circumstances of the present case with the lapse of time coupled with the delay in moving the court by respondent No. 2 have to be considered.

13.9 There cannot be any quarrel with regard to the provisions of Section 154 and the obligation for registration of the complaint disclosing a cognizable offence for which both the sides have referred to a number of judgments and the submission of learned Sr. Counsel Mr. Raju for the petitioner that the complaint itself is vague, cannot be readily accepted in light of the observations, particularly the observations made by the Hon''ble Apex Court in a judgment in the case of Lallan Chaudhary and Ors. v. State of Bihar and Anr. reported in (2006) 12 SC 229 as well as in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, about the genuineness or credibility of the information and the police officer cannot embark upon the enquiry as regards reliability of the information at the stage of registration of an offence. The justiciability of the procedure and registration of such complaint at a belated stage in that case after 14 years was also considered in light of Article 21 of the Constitution and the Hon''ble Apex Court has observed that though quick justice is a sine qua non of Article 21, but when grave miscarriage of justice is committed by the police officer, delay would not be relevant as otherwise it would not scuttle the miscarriage of justice. However, the facts in that case were different and the delay was attributed to the appellants therein only which is not the case here.

13.10 Therefore, the delay as well as other peculiar facts like issue estoppel and also the subsequent developments will have to be considered in totality of the facts and circumstances coupled with the attitude or the conduct of respondent No. 2 complainant. On the one hand there is an application for registering a complaint for a cognizable offence which has been registered. On the other, the petitioner has come forward with the prayer for quashing of the said complaint on various grounds including delay and mala fides.

13.11 In these peculiar circumstances, therefore, as discussed above, a close scrutiny of the material and evidence would not permit further proceedings or investigation inasmuch as for the same transaction or the incident, when the person complained of has been either discharged or one officer has been acquitted after the trial, against which there is no appeal. Moreover, the issue is settled and cannot be reopened on the ground of issue estoppel when for the same transaction or the alleged incident the procedure has been followed, and the persons accused of are either not arraigned when the complaint is rejected qua other nine accused persons and one of the accused Mr. Bishnoi was tried and acquitted or the petitioner has not been arraigned at that time. Further, when respondent No. 2 complainant had not taken any steps, would it be justified to allow the investigation to proceed?

13.12 Assuming that further investigation is allowed, what fate it would have, as, the when the weapon has not been recovered, there is no opinion of the ballistic expert and the only aspect which perhaps could have relevance is with regard to the allegations of the offence of conspiracy u/s 120-B of IPC. It is not in dispute that two persons have died also, but at the same time, one Mr. Bishnoi has been tried for the same and has been acquitted of the charges.

13.13 Therefore, at this stage, what could be the ultimate result, though, normally, such aspect should not weigh with the court, but in the peculiar facts of the case, it will have to be considered.

13.14 Therefore, even if this complaint is accepted, the time which has passed will not permit such re-opening or reconsideration of the facts inasmuch as it would be a futile exercise even to trace any evidence for the offence u/s 120B also. It is in these circumstances, as rightly emphasized by learned Sr. Counsel Mr. Raju, that the criminal jurisprudence also has considered the issue estoppel and it will have to be considered in light of the two judgments which have been cited by learned Sr. Counsel Mr. Raju reported in Bhagat Ram Vs. State of Rajasthan, and in the case of the The State of Rajasthan Vs. Tarachand Jain, Both these judgments have considered the aspect of "issue estoppel" and referring to the earlier judgment which has been quoted, it has been specifically emphasized,

...The rule of issue estoppel prevents relitigation of the issue which has been determined in a criminal trial between the State and the accused. If in respect of an offence arising out of a transaction a trial has been taken place and the accused has been acquitted, another trial in respect of the offence alleged to arise out of that transaction or of a related transaction which requires the Court to arrive at a conclusion inconsistent with the conclusion reached at the earlier trial is prohibited by the rule of issue estoppel.

13.15 This aspect of issue estoppel coupled with the fact about the conduct of respondent No. 2 and his failure to take appropriate steps at the appropriate time would require this Court to consider the exercise of discretion u/s 482 of Cr.P.C.

13.16 There may be a complaint for a cognizable offence registered at the instance of respondent No. 2, but the aforesaid two aspects of issue estoppel and his own conduct coupled with the passage of time and the delay will have a bearing for deciding the issue regarding investigation on the basis of the complaint filed by respondent No. 2 and exercise of inherent jurisdiction u/s 482 of Cr.P.C. by this Court.

13.17 The submission made by learned Sr. Counsel Mr. Raju that material of unimpeachable character can be referred for the purpose of deciding the present petition u/s 482 of CrPC referring to the judgment of the Hon''ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, and also the judgment of the Hon''ble Apex Court reported in Priya Vrat Singh and Others Vs. Shyam Ji Sahai, is required to be considered. However, it will not have much relevance as it could be at the stage of framing of the charges when the material and evidence is placed before the court which the court may consider before proceeding further. In the judgment in the case Priya Vrat Singh and ors (supra), the Hon''ble Apex Court has also made the observations that such points can be raised at the time of framing of charges. Therefore, these judgments have relevance for the purpose of deciding the charge against the accused at the relevant stage. Moreover, learned Sr. Counsel Mr. Vakil referring to the case of Parkash Singh Badal (supra) has submitted that at the stage of investigation this should not be considered. Learned Sr. Counsel Mr. Vakil has emphasised the observation referring to the judgment in the case of Bhajan Lal (supra) that,

the investigation of a cognizable offence is the field exclusively reserved for police officers whose powers in that field are unfettered so long as such power to investigate into the cognizable offence is legitimately exercised in accordance with law. The court are not justified in obliterating the track of the investigation when the investigating agencies are well within their legal bounds.

13.18 There cannot be a quarrel with the proposition canvassed by learned Sr. Counsel Mr. Vakil as well as the learned Advocate General on this aspect. However, it refers to the guidelines which had to be followed and that should be the approach normally. However, the facts of the present care are peculiar and it will therefore have to be considered in a given set of facts.

13.19 Therefore, the inherent powers u/s 482, though are to be exercised with care and circumspection, the Hon''ble Apex Court in catena of judicial pronouncements has cautiously, while emphasizing on the exercise of power with care and circumspection, made it clear that no absolute rule or guideline can be laid down, leaving it to be exercised by the concerned Court depending upon the facts and circumstances in each case. Even in Bhajan Lal''s case (supra) the Hon''ble Apex Court has, analyzing the provision and considering various aspects, laid down guidelines to be stated broadly. The guidelines though refer to the allegations made in the FIR or the complaint whether constitute a cognizable offence taken at the face value or not are required to be considered.

13.20 A useful reference can be made to the observations made by the Hon''ble Apex Court in the case of Chunduru Siva Ram Krishna and Anr. (supra) where, referring to the test to be applied by the court while exercising discretion u/s 482, the Hon''ble Apex Court has observed that

The principle that could be culled out is that when at an initial stage a prosecution is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint filed prima facie establish the offence. It is also for the court to take into consideration any special feature that may appear in a particular case while considering whether it is expedient and in the interest of justice to permit a prosecution to continue.

13.21 In the facts of the case, it cannot be said that the allegations in the FIR registered by respondent No. 2 do not disclose a cognizable offence, and therefore it has been registered by the concerned police officer. Normally, the investigation would have followed and should follow, but for the facts discussed hereinabove. Much emphasis given by the learned senior Counsel referring to Clause 7 of the guideline with regard to the mala fide and vengeance or grudge also cannot be accepted, which is considered hereinafter.

13.22 Therefore, this is a peculiar fact which would not be covered and the guidelines which have been provided are required to be considered normally, but in the present case it has to be considered in the peculiar facts of the case. Therefore, even after the registration of the complaint, with the lapse of time coupled with the conduct of respondent No. 2 and also the fact that at the relevant time the present petitioner has not been arraigned as an accused even when the trial was going on, or what has transpired after the direction given by the Division Bench of this Court to bring proper evidence on record with regard to the present petitioner or his involvement in the offence for the charge u/s 120B, it is too late in the day to permit any further proceedings in the matter. Also, the aspect of issue estoppel will have to be considered in peculiar facts of the case.

13.23 Another facet of the submissions which have been made by learned Sr. Counsel Mr. Raju referring to Section 161 of the Bombay Police Act that the complaint is barred cannot be readily accepted as it specifically refers to the act done under the colour or in exercise of any duty or the authority. The submissions which have been made by both the sides emphasizing on "the colour of duty" which have also been considered by catena of judicial pronouncements and which have been discussed and referred hereinabove, clearly suggest that it will have to be considered in the context of the accusations made for the alleged offence by the police officer and whether it could be covered within the phrase "under colour of duty".

13.24 The words "under colour of duty" have been defined in Stroud''s Judicial Dictionary, Third Edn., and referring to this aspect it has been observed by the Apex Court that it would include the acts done under the cloak of duty, even though not by virtue of duty.

13.25 Stroud''s Dictionary refers to it "as a veil to his falsehood", a reference to using or exercising the authority for an oblique purpose and there could be a dereliction of duty like corruption. Therefore, what it refers to is that the veil has to be lifted and whether a particular act could be under colour of duty is a question of appreciation of facts and evidence in each case and cannot be a matter of fixed norms. Therefore, the submission made by learned Sr. Counsel Mr. Raju referring to Section 161 of the Bombay Police Act regarding the bar on such complaint or proceedings cannot be accepted and it depends upon the facts and circumstances of each case.

13.26 Another facet of the submissions which have been made by learned Sr. Counsel Mr. Raju with much emphasis referring to the allegations made in the petition including imputing allegations against the Hon''ble Chief Minister and the State regarding mala fide and wreaking vengeance cannot be accepted and it is required to be noted that such allegations made are beyond the scope of this petition even if such allegations are made to make out grounds of mala fide. The allegations with regard to his having a quarrel with regard to the posting, promotion and the rating in the ACRs etc. is a subject-matter of adjudication before the competent forums like CAT as well as the High Court and therefore the petitioner would not be justified in making a reference to this case as rightly emphasized by the learned Advocate General particularly when he is imputing against somebody without joining him as a party.

13.27 The submissions referring to this aspect made by the learned Advocate General emphasizing on the observations of the Hon''ble Apex Court in a judgment reported in Parkash Singh Badal (supra) also require to be appreciated. Even in the case of Bhajan Lal (supra), the Hon''ble Apex Court has also negatived such contentions and has quoted its earlier judgment reported in Sheonandan Paswan Vs. State of Bihar and Others, observed,

It is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.

13.28 In the facts of the present case, there is no imputation against respondent No. 2 who is the first informant and the complainant and the allegations which have been made, to say the least, reflects the attitude of the petitioner. One may have his own views or high esteem, but cannot make allegations merely because some gradings are changed and he cannot assume that once a particular grade has been made it can never be changed with the change of circumstances or merely because some post is offered which is not suitable the allegations could be made.

13.29 Further, making a note of this, it is expressly made clear that while deciding the present application, it may not be treated as if it is approved or endorse the allegations of mala fide or vengeance which have been canvassed. The case has been considered depending on the peculiar facts with reference to the scope of Section 482 and the allegations with regard to the complaint and the circumstances like the delay, issue estoppel, and conduct of respondent No. 2 and his failure to take appropriate steps at the appropriate time.

13.30 Therefore, considering the aforesaid observations and particularly the observations made by the Hon''ble Apex Court in a judgment in the case ofChunduru Siva Ram Krishna and Anr. (supra) and also the observations made in a judgment reported in Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, where it has been observed that

where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage.

13.31 It is in this background and peculiar circumstances, as discussed above, the court is of the opinion that the present petition deserves to be allowed.

Accordingly, the present petition stands allowed. The FIR being C.R. No. I-8/2010 registered with CID Crime, Rajkot Zone, Bhuj-Kutchh Police Station is hereby quashed and set aside. Rule is accordingly made absolute.

FURTHER ORDER

After the order was pronounced, learned Public Prosecutor Mr. P.K. Jani has requested for stay of the operation of the order to enable him to approach the Hon''ble Apex Court, stating that, since the petitioner is protected against his arrest, further investigation may be permitted as it was pending the hearing of this petition.

Learned Sr. Counsel Mr. Raju has resisted this stating that when the FIR itself is quashed, such an order may not be passed.

In the circumstances, the prayer made by learned Public Prosecutor Mr. Jani deserves to be rejected and accordingly stands rejected.