Megha Ram vs State Of Rajasthan

The petitioner herein was posted as a Constable at the Police Station Mandalgadh. Summons were ordered to be issued to the witnesses in a criminal Case No.248/2018 titled as "State Vs. Ramesh & Ors.", pending in the Court of Additional Chief Judicial Magistrate, Mandalgarh, District Bhilwara. The matter was taken up on 01.07.2019, on which date, the trial court seems to have realized that some of the summons, which were handed over to the petitioner Constable, were not delivered at the Police Station Mandalgrah. Thereupon, the learned Magistrate proceeded to initiate suo moto proceedings against the petitioner for the offence under Section 166 IPC by order dated 01.07.2019. The petitioner has approached this court by filing this miscellaneous petition under Section 482 CrPC for assailing the said order.

I have heard and considered the submissions advanced by Mr. R.S. Choudhary, learned counsel representing the petitioner, and the learned Public Prosecutor and have gone through the impugned order.

This court is apprised that number of such orders have been passed by the Presiding Officer initiating suo moto criminal proceedings against the police officials for failing to get the summons served. In the present case, it is not in doubt that prior to taking cognizance for the offence under Section 166 IPC, prosecution sanction is a sine qua non. However, the learned trial court tried to bypass this requirement observing that the petitioner was a police Constable and thus, he was not removable by the State Government and hence, there was no requirement to procure the prosecution sanction before taking cognizance against him.

In this regard, it may be mentioned here that the State Government has issued the Notification No.F.20 (7) Home (Gr.VI)/74 dated 31.07.1974, whereby the benefit of Section 197 CrPC has been extended even to police officers in the rank of Constables. Thus, the prosecution of the petitioner cannot be permitted for want of prior sanction.

That apart, I am of the opinion that the trial court acted with undue harshness and haste while straightaway directing that cognizance be taken against the petitioner. Before initiating such stringent action, it was at least expected of the trial court to have sought explanation of the petitioner in relation to the allegations set out against him, more particularly, when the court was proceeding suo moto. Instances are not uncommon wherein, despite direction of the court, concerned clerk/Registry omits to issue the notices, summons or warrants, as the case may be. If the view taken by the learned Magistrate is approved, in every such case, the Ministerial staff of the Court would be liable to face prosecution.

Accordingly, in the considered opinion of this court, the impugned order cannot be sustained as the same amounts to a gross abuse of process of law. It is this court's firm opinion that trial court acted with undue haste and without ascertaining the complete facts before initiating the absolutely unwarranted suo moto criminal proceedings against the petitioner. Thus, the impugned order dated 01.07.2019 passed by the Additional Chief Judicial Magistrate, Mandalgarh, District Bhilwara is hereby quashed and set aside. The miscellaneous petition is allowed in these terms. The stay application is disposed of.

A copy of this order be placed before Hon'ble the Inspecting Judge of District Bhilwara for consideration.