TaxTMI 
TaxTMI 
2013 (10) TMI 1471
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.... Chopra that if they did not withdraw the complaint filed by them earlier as against one Smt.Maya Rani, under Section 500 I.P.C., both of them will not remain in service. By an order dated 30.07.2001, the learned Chief Judicial Magistrate, Panchkula summoned the accused 1 to 10 and 12 to face the trial for the offences under Sections 323, 354, 389, 452, 458, 500 and 506, read with Sections 34 and 120-B of I.P.C. 4. The first accused who is the sole respondent herein, filed an application to recall the summoning order dated 30.07.2001. The said application was dismissed by the learned Chief Judicial Magistrate by an order dated 04.07.2007, on the ground that the summoning order, which was passed way back on 30.07.2001 and that recalling the order, would amount to reviewing of the order, which was not permissible in law. 5. The respondent preferred a revision before the learned Additional Sessions Judge, who by an order dated 10.03.2008, while accepting the revision, set aside both the orders dated 30.07.2001 and 17.04.2007, holding that in view of the bar enjoined under Section 197 Cr.P.C., the respondent herein who is a Sub-Divisional Magistrate, could not be summoned to face the....
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....ine the said question. 9. According to the appellant, on 26.06.1997, Shri R.C. Chopra came to her house at about 09.30 P.M. to discuss about the evidence to be adduced in the Court relating to the complaint filed by the appellant, as against one Smt. Maya Rani in the Court of the learned Chief Judicial Magistrate, Panchkula, that when they were discussing about the same, at the instance of the respondent herein, the Tehsildar, the second accused, DSP the third accused, ASI the fourth accused, Head Constable the fifth accused, along with accused No.7 and 8 who were having video cameras, forcibly entered the appellant's house in civil dress, woke up the children of the appellant and questioned them with a view to insult them in the presence of the children as to what R.C. Chopra was doing in her residence. It was further alleged that R.C. Chopra was directed to pull down his clothes and while such activities were going on, the appellant was pleading for mercy and the second accused directed for a thorough search of the suitcase, trunks, almirah and the personal belongings of the appellant and thus, created a nasty scene in her house. It was alleged that Shri. R.C. Chopra and the....
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.... Prasad vs. Rooplal Jindal and others - (2004) 7 SCC 338, Bholu Ram vs. State of Punjab and another - (2008) 9 SCC 140, N.K. Sharma vs. Abhimanyu - (2005) 13 SCC 213 and Subramanium Sethuraman vs. State of Maharashtra and another - (2004) 13 SCC 324, contended that only the jurisdiction of the High Court under Section 482 Cr.P.C. alone could have been invoked, as against the order of the learned Chief Judicial Magistrate deciding to issue summons against the respondent and not by way of revision under Section 397 Cr.P.C. 12. The learned counsel for the respondent relied upon the decisions in K.K. Patel and another vs. State of Gujarat and another reported in AIR 2000 SC 3346, where the earlier decisions of this Court in Amar Nath and others vs. State of Haryana - (1977) 4 SCC 137, Madhu Limaye vs. State of Maharashtra - (1977) 4 SCC 551, V.C. Shukla vs. State through CBI - 1980 2 SCR 380 and Rajendra Kumar Sitaram Pande and others vs. Uttam and another - AIR 1999 SC 1028, were followed, which was reiterated in Adalat Prasad (supra). Reliance was also placed upon the recent decision of this Court in Dharimal Tobacco Products Ltd. and others vs. State of Maharashtra and another repo....
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....was not purely interlocutory but intermediate or quasi final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of the bar under sub-section (2) of Section 397 of the Code." (Emphasis added) 15. This decision makes it clear that an order directing issuance of process is an intermediate or quasi final order and therefore, the revisional jurisdiction under Section 397 Cr.P.C. can be exercised against the said order. This view was subsequently reiterated by this Court in K.K. Patel (supra). After making reference to the cases of Madhu Limaye (supra), V.C. Shukla (supra), as well as Rajendra Kumar Sitaram Pande (supra), this Court laid down the test for finding out as to what order can be construed as an inter....
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....the scope of consideration made by this Court in Adalat Prasad (supra), the only question posed for consideration was whether the Court, which decides to issue summons, did possess the power to review under the provisions of the Code of Criminal Procedure or by way of exercise of its inherent power, where the question was ultimately answered to the effect that such power was neither inherent in the Magistrate to decide to issue process, nor was there any statutory provision available either to recall or review such a decision to issue process. Therefore, it has become incumbent upon this Court to make the position clear, as to how to construe an order passed by a Magistrate in exercise of its power under Sections 200 and 202 Cr.P.C. when it decides to issue the process as against the accused concerned and whether such an order could be the subject matter of challenge by way of revision under Section 397 Cr.P.C. 18. At the risk of repetition, we make it clear that when the Larger Bench of this Court in Adalat Prasad (supra) considered the earlier law declared by this Court in K.M. Mathew (supra), that there was neither inherent power nor statutory power either to recall or review t....
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....l position as under: (i) The order issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 Cr.P.C. would be an order of intermediatory or quasi-final in nature and not interlocutory in nature. (ii) Since the said position viz., such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the District Court or with the High Court can be worked out by the aggrieved party. (iii) Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Section 200 to 204 Cr.P.C., can always be subject matter of challenge under the inherent jurisdiction of the High Court under Section 482 Cr.P.C. 23. When we declare the above legal position without any ambiguity, we also wish to draw support to our above conclusion by referring to some of the subsequent decisions. In a recent decision of this Court in Om Kumar Dhankar vs. State of Haryana and another reported in (2012) 11 SCC 252, the decisions in Madhu Limaye (supra), V.C. Shukla (supra), K.M. Mathew (supra), Rakesh Kumar Mishra vs. State of Bihar and others reported in (2006....
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....s being enquired into by the learned Chief Judicial Magistrate, Panchkula where Smt. Maya Rani and others were summoned to face the trial. According to the appellant a day prior to the recording of evidence before the learned Chief Judicial Magistrate on the complaint filed by the appellant against Smt. Maya Rani (i.e.) on 26.6.1997 one Shri R.C. Chopra visited the house of the appellant, and that on that date at 10 pm a team consisting of ASI Onkar Singh, Head Constable Om Prakash and two other persons with video cameras barged into the house of the appellant in civil dress. The abovesaid persons were stated to have been followed by DSP Mrs. Rajshri Singh and that a little while later the Tehsildar along with the respondent, who was the SDM Kalka, also entered the appellant's house who directed the search of the appellant's house. It is the further case of the appellant that the respondent herein, who was the Sub-Divisional Magistrate and who has been arrayed as accused no.1, threatened the appellant and Shri R.C. Chopra to withdraw the case filed against Smt. Maya Rani pending before the Chief Judicial Magistrate, Panchkula. Based on the above allegations, the appellant p....
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....n 4(b) of Section 3 of Cr.P.C specifically stipulated as to the functions exercisable by an Executive Magistrate which reads as under: "3(4)(b) Which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate." The other relevant sections are Sections 20 to 23 of Cr.P.C which refers to Executive Magistrates, Special Executive Magistrates, the local jurisdiction of Executive Magistrates and the subordination of Executive Magistrates. 30. As far as issuance of search warrants are concerned, it is governed by Sections 91 to 94 of the Cr.P.C. Section 93 of the Code empowers a Court for issuance of warrant of search. However, such issuance of search warrant can be made only in respect of the requirement and fulfillment of Section 91 or sub-section 1 of Section 92. The only other provision relating to warrant of search or the power of search by a Magistrate is provided under Section 103 which states "any Magistrate may direct a search to be made in his presence of any place for the sea....
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....claiming to have acted as an Executive Magistrate for ordering searching operation of the premises of the appellant and having issued certain directions to physically examine the appellant and Shri R.C. Chopra. 33. The various provisions which we have referred to above when examined with reference to the complaint alleged to have been lodged by Maya Rani against the appellant, we find that the said alleged offence if to be taken cognizance of could have fallen under any of the offences falling under Chapter XX of Indian Penal Code. Under Section 198(1) of the Cr.P.C. it is specifically stipulated that no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. Sub-section (2) further states that for the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code and the proviso to the said section makes it clear that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the....
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....at may probably occasion a breach of peace or disturb the public tranquility. When the simple allegation of Smt. Maya Rani against the appellant was that the appellant was having some illegal relationship with R.C. Chopra in the premises in which the appellant was residing, there is absolutely no scope for the respondent to invoke Section 107 Cr.P.C and contend that he acted by virtue of the authority vested in him under the said provision. 37. Therefore, when the above provisions pursuant to which the respondent could have acted was not available to support the stand of the respondent, only other aspect to be examined is the conduct of medical examination on the appellant and R.C. Chopra which according to the appellant was also not in consonance with the provisions of the Code. Under Sections 53 and 54 of Cr.P.C. the scope of holding a medical examination on an accused is provided for. Under Section 53(1) when a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, such medi....
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....uch a behaviour of the respondent as narrated in the complaint of the appellant, if ultimately found to be true, can only be held to be a high handed one bordering on indecency of the highest order, wholly abusing his status as SDM and can never be held to have acted within the statutory framework of law. 40. At the risk of repetition it will have to be stated that when such an allegation could not have formed the basis for prosecution of an offence falling under Section 198 Cr.P.C. read along with the provisions contained in Chapter XX of the Indian Penal Code, none of the actions alleged against the respondent by the appellant can be held to be one in which he acted in his capacity as the Executive Magistrate. We are constrained to examine the above factors and steer clear of the factual position in order to state whether or not the conclusions reached by the Additional Sessions Judge and the High Court in the orders impugned to the effect that the invocation of Section 197 Cr.P.C became imperative before proceeding against the respondent based on the complaint lodged by the appellant. 41. In our considered opinion, having regard to our above conclusions, it will have to be hel....
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....of abuse of authority by public servants, despite several pronouncements of this Court in which such abuse has been deprecated, and the effect which such abuse has on the confidence of the people in the Rule of Law to which we are committed and the credibility of the institutions that are meant to preserve and nurture that confidence is what, in my opinion, calls for some elaboration. There is no gainsaying that excesses by those vested with power and abuse of official position by those who hold public offices cannot easily be eliminated, especially when respect for law is on the decline and enforcement machinery either insensitive or inadequate. Even when complete eradication of such excesses and abuse may be a far cry, the mechanism for redressal against such abuse ought to be efficient. Absence or failure of any such mechanism can lead to disturbing and in extreme cases disastrous consequences as was aptly prophesied by Lord Denning in his first Hamlyn Lecture of 1949 under the title "Freedom under the Law" when he said: "No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which....
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....otally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental. xxx xxx xxx ...Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen." (emphasis supplied) 4. The decisions of this Court in Smt. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and Anr. (2003) 7 SCC 749 and Sube Singh v. State of Haryana and Ors. (2006) 3 SCC 178, among several other pronouncements, reiterate what was stated in D.K. Basu....
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....acets of the Rule of Law and anyone found to have acted in breach of law could be punished for any such breach. This Court observed: "In a country governed by the rule of law police excesses whether inside or outside the jail cannot be countenanced in the name of maintaining discipline or dealing with anti-national elements. Accountability is one of the facets of the rule of law. If anyone is found to have acted in breach of law or abused his position while exercising powers that must be exercised only within the parameters of law, the breach and the abuse can be punished. That is especially so when the abuse is alleged to have been committed under the cover of authority exercised by people in uniform. Any such action is also open to critical scrutiny and examination by the Courts. Having said that we cannot ignore the fact that the country today faces challenges and threats from extremist elements operating from within and outside India. Those dealing with such elements have at times to pay a heavy price by sacrificing their lives in the discharge of their duties. The glory of the constitutional democracy that we have adopted, however, is that whatever be the challenges posed by....
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....ent. That view has been assailed before us primarily on the ground that the respondent was neither acting nor could be said to be acting in the purported discharge of his official duty so as to entitle him to the protection of Section 197, Cr.P.C. which to the extent the same is relevant for our purposes reads as under: "197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. (2) xxxxx (3) xxxxx (4) xxxxx" 9. A car....
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......As adjective, belonging to an officer: of a public officer; in relation to the duties of office." "Office...The word "office" refers to the place where business is transacted." 13. The term "duty" is defined by Black's Law Dictionary in the following words: "Duty. 1. A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right." 14. The expression "official duty" would in the absence of any statutory definition, therefore, denote a duty that arises by reason of an office or position of trust or authority held by a person. It follows that in every case where the question whether the accused was acting in discharge of his official duty or purporting to act in the discharge of such a duty arises for consideration, the Court will first examine whether the accused was holding an office and, if so, what was the nature of duties cast upon him as holder of any such office. It is only when there is a direct and reasonable nexus between the nature of the duties cast upon the public servant and the act constituting an offence that protection under Section 197 Cr.P.C may be available and not otherw....
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....rts to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197 (1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision." (emphasis supplied) 16. The law was reviewed once again by this Court in General Officer Commanding etc. v. CBI and Anr. etc. (2012) 6 SCC 228, where this Court relying upon the decisions in P.Arulswami and B. Saha's cases (supra) summed up the legal position in the following words: "The protection given Under Section 197 Code of Criminal Procedure is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their officia....
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.... an inquiry to the DSP. In pursuance to this, a team had visited the house of Smt. Urmila Devi at 10:00 P.M. led by DSP Mrs. Rajshri Singh, ASI Onkar Singh and HC Om Parkash to verify the contents of the complaint made by Maya Devi. Shri R.C. Chopra was found residing with Smt. Urmila Devi. They were medically examined. No case was registered and they were not arrested. In a complaint by Maya Rani it was alleged that a divorce petition was pending between Shri R.C. Chopra and his wife Savitri. Shri R.C. Chopra and Smt. Urmila Devi had given false statements to the police in investigation that they did not know each other at all. The allegation that the SDM was present when the investigation team visited the house is not being denied. After marking an inquiry, SDM was ceased of the complaint and his presence at best can be an act of omission towards his official duty. It cannot be said that his presence was not in the course of his service. The allegation in the complaint that he harassed the complainant Smt. Urmila Devi and Shri R.C. Chopra when the investigating team was doing their work can at best be termed as act of omission while doing official duty." 18. It is difficult to a....