Satyaprakash Aasure vs Smt. Kalpana Asure

The inherent powers of this Court are invoked u/s 482 Cr.P.C . for assailing the order dated 18.05.2017 passed by Special Judge (M.P.D.V.P.K. Act) Morena in Criminal Case No. 56/09 SPL. taking cognizance of offences punishable u/Ss 392, 323, 504 IPC, Sec. 11/13 of MPDVPK Act and Sec. 392 / 34 r/w Sec. 11 /13 of M.P.D.V.P.K. Act against the petitioners.

Learned counsel for the rival parties are heard.

Learned counsel for the petitioners submits that the impugned prosecution is an act of retaliation motivated by feeling of revenge nursed by respondent No.1 / complainant against the petitioners herein, who had registered a case of lurking house tress pass and theft against the son of the complainant / respondent No.1. It is further submitted that petitioners herein are police personnel working at the relevant time in different capacities at police station Sihoniya, District Morena in the year 2005. Crime No. 114/2005 and 115/2005 were registered alleging offences punishable u/Ss. 457, 380 IPC against unknown accused. During the course of investigation of said offences, petitioner No.1 received an information on 25.10.2005 from informer that the accused in the said offences are given shelter and harbour by complainant Gokaran Singh -respondent No.1. Petitioners reached the identified place and searched for the accused. In the process of searching when they knocked at the door of complainant Gokaran, accused Lokendra came out with a a country made pistol. The said Lokendra was immediately arrested and the said illicit firearm was seized from him and crime No. 134/2005 was registered against said Lokendra- son of the complainant for the offences punishable u/s 25/27 of the Arms and Act 11/13 of M.P.D.V.P.K. Act. In Crime No. 134/2005 investigation was held and charge sheet filed. It is submitted by the petitioners'' counsel that initiation of this prosecution against son of the complainant was not taken in good spirit by the complainant who started nursing animosity against petitioners and as a measure of retaliation to give vent to his feeling of animosity against the petitioners, the complainant lodged the complaint in question by manufacturing and concocting the facts by projecting a story that the petitioners during incident of their visit to the house of the complainant in the night of 25.10.2005 were the assailants and thus were made accused.

Copy of complaint has been filed dated 18.03.2008 perusal of which does not indicate the same to be the original complaint u/s 200 Cr.P.C . Original copy of the complaint has not been brought on record either by petitioners or by respondent - complainant. From bare perusal of the so called complaint dated 18.03.2008 it appears that original complaint was filed by respondent No.1 / complainant alleging offences punishable u/Ss 323, 324, 425 and 504 IPC whereas by the said subsequent complaint dated 18.03.2008 request is made for adding Sec. 395 IPC read with Section 11/13 of M.P.D.V.P.K. Act.

Despite the Court directing filing of original complaint by order dated 10.03.2016, no effort has been made by either of the rival parties to bring on record the original complaint. 5.1 In support of the complaint, statements of complainant Gokaran Singh, his wife Tara Bai, his daughter Preeti and investigating officer Ghanshyam Singh Tomar, Lokendra and Dr. Rambabu Sharma were recorded before the trial Court. It is not disputed at the bar that the prosecution story of commission of cognizable offences alleged in the complaint were more or less supported by statement of complainant and his wife, son and daughter.

It is also clear from the bare perusal of the allegation made in the statement of complainant and his witnesses that the offences alleged in the complainant appear to be prima facie made out. 6.1 However, learned counsel for the petitioners has assailed the prosecution in question on the ground of malice by submitting that petitioners, who are police personnel, are being targeted to give vent to feeling of revenge of complainant who was piqued by the fact of his son Lokendra having been implicated in the offences punishable u/s 25 and 27 of the Arms Act and 11/13 of M.P.D.V.P.K. Act bearing Crime No. 134/2005. Another ground which has been taken by the petitioners'' counsel is that impugned cognizance of offence against the petitioners should not have been taken in the absence of sanction for prosecution by the competent authority in view of Section 197 Cr.P.C.

6.2. It is also relevant to observe that the ground of absence of sanction is not raised as one of the grounds in the present petition but has been canvassed by learned counsel for the petitioners in his oral arguments. Since the said ground pertains more to law than to facts, the same shall be considered and dealt with in this order along with other grounds of malice if occasion arises.

Taking up the first ground of malice, it is seen from the record that the incident which gave rise to crime No. 134/2005 registered against the son of the complainant and which happens to be the bedrock of the ground of malice herein, is based on the incident which took place on 25.10.2005 at 6:35 pm as per the FIR filed by the petitioners along with list of documents. The said FIR graphically describes the incident where Lokendra, son of complainant, was made sole accused for possessing illicit firearm, and was apprehended after coming out of the house of the complainant from where the petitioners heard scream of a woman during their investigation in the theft case bearing crime NO. 114/05 and 115/05. The list of documents is further accompanied by the copy of Rojnamcha of 25.10.2005.

On the other hand, the complainant alleges incident of the same date and time sometime in the night of 24.10.2005 which is evident from the testimony of Ghanshyam Singh Tomar (PW-4) & Lokendra (PW-5). Thus, it needs to be seen as to whether the evidence produced in support of the ground of malicious prosecution is sufficient and cogent enough to impel this Court to excise its inherent power to truncate the impugned prosecution at the early stage where even adducing of evidence has not yet started in the trial Court. The Apex Court in the case of State of

State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors reported in AIR 1992 Supreme Court 604 has laid down certain tests and eventualities on the arising of which criminal prosecution can be quashed at the initial stage. The said guidelines as enumerated in the said judgment are as follows :-

"108 (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) 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."

8.1 The facts attending the instant case appear to fall within the clause 7 of para 108 of Bhanan Lal''s case (supra) as the criminal proceedings are manifestly attended with malafide and also have been maliciously instituted to wreak vengeance on the accused due to personal grudge nursed by the complainant against the accused. 9. From the above, it is evident that the prosecution in question, appears to be motivated more by malice than actuality and thus should be truncated at the earliest stage so that neither of the rival parties to have undergo the ordeal of prolonged trial.

This court feels disabled due to non-availability of exact original complaint made by the respondent No.1 / complainant which could have enabled this Court to know of the initial allegations made by the complainant and the time, date and nature of the incident. It is unfortunate that respondent No.1 / complainant who has been duly represented by counsel since 19.06.2014 has not cared to file the original complaint. Thus, in the considered opinion of this Court, the benefit of this default on the part of respondent No.1 / complaint must visit the petitioners / accused.

Petitioners / accused have prima facie established the case of malicious prosecution. Petitioners in due discharge of their official duties registered the offences bearing crime No. 134/2005 against the son of complainant arising out of incident which is of the same date and nearly of the same time when incident giving rise to the complaint in question took place. It is obvious from the common incident giving rise to both the offences i.e. Crime No. 134/2005 on one hand and Crime No. 114 & 115/2005 on the other, that one of these is fictitious. The fact that they are not cross- cases emboldens this inference. Absence of injuries on body of complainant and his relatives who are alleged to have been brutally beaten by petitioners further supports the view. More so, complainant has failed to demonstrate that either he or his relatives who allegedly received beating were medically examined.

Besides the default on the part of complainant / respondent to come out with correct facts by failing to file the original complaint, this court is of the considered view that the impugned prosecution is tainted with the vice of malafide and deserves to be truncated at this very stage to avoid the ordeal of long drawn trial.

Before parting, it would be appropriate to consider the grounds of absence of sanction for prosecution of the petitioners who are Govt. servant.

The Apex Court in the case of Anil Kumar and Ors. VS. M.K. Aiyappa and Anr. reported in (2013) 10 SCC 705 while dealing with the same issue has held that for criminal prosecution of Govt. servants the sanction for prosecution is required from the competent authority not only at the cognizance stage but also at pre-cognizance stage. For convenience and ready reference, the relevant para is reproduced below :-

"22. Further, this Court in Army Headquarters VS. CBI reported in (2012) 6 SCC 228. opined as follows:- 82.Thus, in view of the above, law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him ..... 83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio...." 15. In view of the aforesaid law down by the Apex Court and the fact that record do not indicate any sanction from competent authority ( appointing / disciplinary authorities of the petitioners) has been obtained before taking impugned cognizance, the impugned prosecution is rendered vitiated in the eyes of law even on this count.

Consequently, the present petition is allowed and the impugned order dated 18.05.2009 of taking cognizance of offences punishable u/Ss. 392, 323, 504 IPC, Sec. 11/13 of MPDVPK Act and Sec. 392 / 34 r/w Sec. 11 /13 of M.P.D.V.P.K. Act. pending in shape of case No. 56/2009 before the Special Judge (M.P.D.V.P.K. Act) Morena is hereby quashed.