1. Heard learned counsel for the petitioner as well as learned Additional Government Advocate for respondent no.1-State, and gone through the entire record.
2. Present petition under Section 482 CrPC by the petitioner, a police inspector, has been filed for setting-aside the order dated 11.01.2021 passed by the learned Chief Judicial Magistrate, Sitapur in Criminal Misc. Case No.487 of 2019 whereby the learned Magistrate has directed to register an FIR and investigate the offence on an application filed by the respondent no. 2 under Section 156(3) CrPC.
3. The respondent no. 2 filed an application under Section 156(3) CrPC, stating therein that the respondent no. 2, along with his wife, who is a teacher, carry out the work of shuttering; on 21st July, 2019, at around 7 p.m., respondent no. 2 and, his friend Virendra, son of Vishram Bhargav, resident of Gopalpur, Police Station Manpur, District Sitapur were coming from their site to Masterbagh on a motorcycle; on the way, near Ganeshpur, one Bolero Car, white colour, came from behind, crossed by touching the motorcycle of the respondent no. 2 as a result thereof, respondent no. 2 and, Virendra fell down; Bolero stopped and Ram Prakash, son of Jagdish Rathaur and Manoj, son of Ram Prakash, Pawan, son of Ram Prakash, resident of Hardoi Goojar, District Jalaun started dragging respondent no. 2 inside the car; the respondent no. 2 raised alarm and called for help from Bhargav; Virendra Bhargav tried to pull the respondent no. 2 away from the clutches of the said persons; at that time, Pawan, son of Ram Prakash fired at the respondent no. 2, however, the fire hit Virendra, who fell down; hearing the gun shot, many passersby got collected and, the assailants fled away towards Masterbagh.
4. The respondent no. 2 also got injuries on his chest, shoulder and foot in the scuffle; he dialed 100 number to call for police; the police came there and, injured Virendra was taken to Kasmanda Hospital where Circle Officer and Station House Officer, Kamalapur also arrived; after making some enquiry, injured Virendra was sent to District Hospital; the respondent no. 2 was taken to the place of incident and, thereafter, on the basis of the complaint given by him, a case under Sections 307 and 323 IPC was registered; after treatment in the hospital, respondent no. 2 was allowed to go home, saying that he had to make some 'service' to the police; the respondent no. 2 came home and, after taking some money, went to District Hospital by his car where injured Virendra was receiving treatment for gun-shot injury. On 22nd July, 2019, at around 10-11 a.m., when respondent no. 2 along with one Guddu went at the gate of the Hospital to bring tea, he saw two persons indulging in verbal quarrel; at that time, Station House Officer came there; he along with respondent no. 2 went to see Virendra inside the hospital; the respondent no. 2 was asked to get his X-ray done; the respondent no. 2 was taken to the police station with his car on the pretext of getting his X-ray done; after X-ray was conducted, the respondent no. 2 was taken inside the police station and locked in the lock up; in the night, the said Station House Officer came and asked whether he had made arrangement to provide 'service' to the police; when the respondent no. 2 denied any arrangement, Station House Officer could see some money in the pocket of the respondent no. 2, which he brought from his home for treatment of injured Virendra.
In the complaint, it is alleged that the Station House Officer told him that he could establish contact with accused Ram Prakash etc. and, he had spoken to them that the present case was a false case. It was also said that since the respondent no. 2 did not do any 'service' to the police, Virendra would be made a approver in the case and, he would be sent to jail in connection with Crime/FIR No.0231 of 2019, under Section 307 and the case would be closed; the respondent no. 2 was asked to give money, whatever he had and rest of the amount later on; the respondent no. 2 said that he had brought money for treatment of injured, Virendra; thereafter, the Station House Officer came and gave a country-made pistol in the hand of the respondent no. 2 and clicked a photograph of the respondent no. 2 with country-made pistol; on the basis of this photograph, an FIR as Crime No.0234 of 2019, under Section 25 (1-B) Arms Act was registered against the respondent no. 2 at police station on 23rd July, 2019, alleging that he was apprehended with the country-made pistol at 2.05 p.m. at the place of incident where Virendra received gun-shot injury and, he was sent to jail on 24th July, 2019.
5. The petitioner herein took out driving licence, key of the car and, Rs.30,500/- from the pocket of the respondent no. 2; after the respondent no. 2 was admitted on bail, he was given back his driving licence and Rs.10,000/- and, rest of the amount was kept by the petitioner herein. It was alleged that the respondent no. 2 was falsely implicated in the offence registered at Crime/FIR No.0234 of 2019, under Section 25 (1-B) Arms Act as he did not pay the money demanded by the petitioner herein and, to affect the investigation of offence registered at Crime/FIR No.0231 of 2019, under Section 307 IPC; the fact is that the respondent no. 2 was taken to police station on 22nd July, 2019, at around 6.30 p.m. and remained in lock up inside the police station till he was taken on remand on the next day; it was also said that recording of CCTV Camera installed at the Police Station would verify the said fact; on 06.08.2019, the respondent no. 2 sent a letter to the Director General of Police, Lucknow and, other officers in respect of this incident and his false implication.
6. In view of the aforesaid, it was stated that since the respondent no. 2 was falsely implicated by the petitioner herein in a false case, an FIR against him should be registered and, the case should be investigated properly. Police report from the police station was called for and, it was stated in the police report that no such offence was registered at the police station. The respondent no. 2 had given complaints to the Director General of Police of the State and other higher authorities. In compliance of the direction issued by the Director General of Police, Superintendent of Police of the District conducted an inquiry and sent a letter dated 22.01.2020 to the Director General of Police, stating therein that "mijksDr tkap ls fnukWd 23-08-2019 dks le; 14-05 cts vfHk;qDr t'kjkt jkBkSj dh bf.Mdk dkj ua0 ;w0 ih0 92 bZ0&7473 ls ,d vnn reUpk 32 cksj] ,d ftUnk dkjrwl 32 cksj o ,d [kks[kk dkjrwl cjken gksuk QnZ esa n'kkZ;k x;k gS rFkk mDr vfHk;ksx ds oknh m0 fu0 Jh lS;n vCckl jtk] Fkkuk deykiqj ds gejkgh gs0 dka0 jkeiyV ;kno dh fnukad 23-08-2019 dks le; 14-04 cts Fkkuk dk;kZy; deykiqj esa lh0lh0Vh0oh0 QqVst esa mifLFkr fn[kkbZ nsuk ?kVuk dks lafnX/k cukrk gSA pWwfd vfHk;ksx ds foospd m0 fu0 Jh fouksn dqekj 'kekZ }kjk vfHk;ksx esa foospukijkUr vkjksi i= la[;k [email protected] fnukad 30-08-2019 dks iszf"kr fd;k x;k gS tks ekuuh; U;k;ky; izsf"kr fd;k tk pqdk gSA izdj.k dh tkap ls vk;s mijksDrkafdr u;s rF; ds lEcU/k esa Fkkuk deykiqj ij iathd`r eq0v0la0 [email protected]] /kkjk 25¼1&ch½ vk;q/k vf/kfu;e dh iquZfoospuk /kkjk&173¼8½ na0iz00 ds vUrxZr vU; fdlh Fkkus ds mifujh{kd ls djk;k tkuk U;k;ksfpr gksxkA"
7. The learned Magistrate, considering the facts and circumstances of the case, has been of the opinion that it would be appropriate to direct registration of the FIR on the allegation made by the respondent no.2 in his application under Section 156(3) CrPC and, investigate the case.
8. The learned counsel for the petitioner submits that the direction for lodging of the FIR under Section 156(3) CrPC against the petitioner could not have been issued by the learned Magistrate without sanction for prosecution in view of the judgment of the Supreme Court in the case of Anil Kumar and others Versus M.K. Aiyappa and another, (2013) 10 SCC 705. The learned counsel has pressed paragraph-11 of the said judgment to buttress his argument, which is reproduced herein:-
11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case [(2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
9. The learned counsel has placed reliance upon paragraphs-82 and 83 of another judgment of Supreme Court in the case of Army Headquarters Versus CBI, (2012) 6 SCC 228, which reads as under:-
82. Thus, in view of the above, the law on the issue of sanction can be summarised 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. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparably connected with discharge of his duty, he becomes entitled for protection of sanction.
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 for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority.
10. The second submission of the learned counsel for the petitioner is that the learned Magistrate has no power to direct for re-investigation/fresh investigation (denovo) in the case initiated on the basis of police report.
11. I deal with the second submission of the learned counsel for the petitioner 'first'.
12. The leaned Magistrate has not passed any order for re-investigating the offence registered as Case Crime No. 0234 of 2019, under Section 25(1-B) Arms Act, but he has only extracted the report submitted by the Superintendent of Police of the District on a complaint of the respondent no. 2 to the Government and, therefore, there is no substance in the submission of the learned counsel for the petitioner that the learned Magistrate has issued such a direction. The only direction, which has been issued by the learned Magistrate, is to register an FIR on the complaint of the respondent no. 2 and, get the same investigated.
13. Section 197 CrPC provides that when a public servant is accused of any offence alleged to have been committed by him while discharging his official duty, no Court shall take cognizance of such an offence except after previous sanction by the Competent Authority.
14. The learned counsel for the petitioner has placed reliance upon paragraph-11 of the said judgment in the case of Anil Kumar and others Versus M.K. Aiyappa and another (supra). Paragraph-11 of the said judgment is in respect of what has been said in the case of Maksud Saiyed Versus State of Gujarat, (2008) 5 SCC 668. In paragraph-12 of the judgment in Anil Kumar and others Versus M.K. Aiyappa and another (supra), the Court has framed the question "whether the order directing investigation under Section 156(3) CrPC would amount to taking cognizance of the offence, or not". In paragraph-15 of the said judgment, it has been specifically held that 'when Magistrate/Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and, cannot be equated with post-cognizance stage. Paragraphs-12 and 15 of the judgment in Anil Kumar and others Versus M.K. Aiyappa and another (supra) are extracted herein below:-
12. We will now examine whether the order directing investigation under Section 156(3) CrPC would amount to taking cognizance of the offence, since a contention was raised that the expression "cognizance" appearing in Section 19(1) of the PC Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act.
15. The judgments referred to hereinabove clearly indicate that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.
15. The second case, relied upon by the learned counsel for the petitioner, does not deal with the question whether the direction under Section 156(3) CrPC for registration and investigation of the offence is post-cognizance or pre-cognizance stage and, therefore, it is not relevant to the facts of the present case.
16. Considering the law laid down by the Supreme Court in the case of Anil Kumar and others Versus M.K. Aiyappa and another (supra) and the facts and circumstances of the case, it may be concluded that no prior sanction of the Competent Authority is required for direction by the learned Magistrate to register an FIR and investigate the offence on an application filed under Section 156(3) CrPC allegedly committed by a public servant. Once the charge-sheet is submitted then at the time of taking cognizance, the question of sanction would be relevant and, not at the time of registration of the FIR as that stage is prior to taking cognizance by the Court.
17. In view thereof, I do not find any substance in the present petition filed by the petitioner and, thus, the same is dismissed.
[D.K. Singh, J.] Order Date :- 28.1.2021 MVS/-