- (1.) S. S. Kulshrestha, J. This application under Section 482 of the Code of Criminal Procedure (hereinafter called to be Code) has been brought for quashing the proceedings of complaint Case No. 5969 of 1981 (new number 6039 of 1983/93), Ram Narayan Dixitv. D. P. Singh and six others, under Sections 147, 342, 365, 367, IPC pending in the Court of A. C. J. M.-I, Agra and also for quashing the order dated 10. 10. 2007 whereby non-bailable warrants were issued against the applicants.
(2.) IT is said that the applicant No. 1 Sri Bal Govind Sonkar was posted in the year 1981 as Sub-Inspector, Firozabad (Dakshin), Agra and applicant No. 2 Sri Vikram Singh was in those days posted as Superintendent of Police (Rural Area) Agra. Sri Ashok Dixit, s/o Sri Ram Narayan Dixit (complainant) is having criminal history of about 60 cases and is the gang rfiember. He was arrested by Police Hariparvat, Agra in a case under the U. P. Anti Social Activities (Prevention) Act (hereinafter called to be the Act) and the applicants had nothing to do with the said arrest. However, in the complaint brought by Sri Ram Narayan Dixit seven police personnels including the applicants had been arraigned as the accused for the offences under Sections 147, 342, 365, 367, IPC with the allegations that on 24. 8. 1980 they lifted Sri Ashok Dixit for the purpose of killing him in a fake en counter. The complainant at the stage under Section 202 of the Code had exam ined the witnesses namely S/sri Darshan Singh Sikarwar, Shiv Shankar @ Bhola, Sewa Ram Sharma, Om Prakash Dubey, Chhavi Ram Sharma, Sevati Lal Sharma, Chhote Lal Tyagi, Ashok Dixit and Chhotey Lal. On the basis of their statements and other materials cognizance of the offences appears to have been taken by the learned Magistrate and the applicants and other persons named in the com plaint were summoned. Applicants had put in their appearance and an application was moved on behalf of the applicant No. 2 for exempting his presence from the proceedings. Objections were filed on behalf of the complainant but that applica tion is still lying undisposed of. Apart from other pleas it was contended that though Sri Ashok Dixitwas detained by Police Hariparvat and the applicants had nothing to do with it. Alternatively this act was done by the police personnels in the discharge of their official duties and they are'squarely protected under Sec tion 197 of the Code. Agreeing with this proposition the learned Magistrate. dis-missed the complaint for the want of sanction under Section 197 of the Code but the learned Addl. Sessions Judge in criminal revision No. 529 of 1982 vide the order dated 5. 8. 1983 set aside the order passed by the learned A. C. J. M.-I, Agra holding it to be premature and directed the learned Magistrate to summon the General Diary from the concerned police station so as to make the ascertain ment whether such an act of the police personnels was in the discharge of their official duties. Since then the matter is pending for decision including that of the application for exemption moved on behalf of the applicant No. 2. The learned Magistrate though several times issued reminders to Police Firozabad (North) and Police Jaitpur, Agra for furnishing the General Diary of the relevant dates but the same could not be furnished as having been weeded out and the issue of protection under Section 197 of the Code remained undecided. The General Diary of Police Station Hariparvat, Agra was not summoned though the detention under the Act pertained to that police station. Not only this the learned Magistrate rushed up to issue non-bailable warrants against the applicants. IT is also said that Sri Ram Narayan Dixit expired in the year 2003 and so the proceedings ought to have been dismissed as abated. Before proceeding to make the disposal of this case it may be mentioned that a period of 26 years has already elapsed and the matter is still hanging for the determination of the issues as to whether the proceedings of complaint case have been abated on the death of complainant and police personnels are pro tected under Section 197 of the Code or not. Postponing a decision on the appli cability or otherwise would lead to the proceedings being dragged on in the trial Court. In the given circumstances to avoid unnecessary prolongation of the trial, the legal issues of the sanction and abatement of the proceedings and sanction under Section 197 are taken up for final disposal. It is contended by the learned Counsel for the applicants that the proceed ings of the complaint case ought to have been terminated as having been abated on the death of complainant. It may be necessary to mention that from the appli cation and the counter affidavit it is clear that after the death of Sri Ram Narayan Dixit, his son Sri Arun Dixit and thereafter Sri Ashok Dixit were permitted to do necessary Pairavi in the complaint case. Such permission could be granted to the heirs of the complainant under Section 302, Cr. P. C. to continue the proceed ings and it is no longer res-integra as the same has been concluded by the Apex Court in the case of Ashwin Nanubhai Vyas v. Sfate of Maharashtra, AIR 1967 SC 983. It was observed: "this case was being heard under Chapter XVIII which divides committal cases into two classes (a) those commenced on a police report and (b) other cases. The first kind is tried under the procedure laid down in Section 207-A. With that procedure we are not concerned. The other oases are tried under the procedure as laid down in the other provisions of Chapter XVIII. Section 208 of this Chapter provides that in any proceeding instituted otherwise than on police report the Magistrate shall "when the accused appears or is brought before him, proceed to hear the complainant (if any) and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate". The Magistrate then hears evidence for the prosecution unless he makes an order of commitment and after recording the evidence and ex amining the accused (if necessary) frames a charge. He may, after hearing further evidence, which the accused may wish to produce, (unless for rea sons to be recorded, the Magistrate deems it unnecessary to do so) either discharge the accused cancelling the charge or commit him to stand his trial before the Court of Session. There is no provision about the acquittal or dis charge of the accused on the failure of the complainant to attend the Court. This is not an omission but a deliberate departure from the Chapters on the trial of summons and warrant cases. In such trials, on the absence of the complainant, the accused is either acquitted or discharged. The intention appears to be that the Magistrate should proceed with the inquiry because had it not been so intended, the Code would have said what would happen if the complainant remains absent. "
(3.) IN the case of Rashida Kamaluddin Syed v. Shaikh Saheblal Mardan, (2007) 3 SCC 548 the Apex Court also observed : "from the above case law, in our opinion, it is clear that on the death of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of the complainant to apply for continuation of proceedings against the ac cused persons. By granting such prayer, no illegality has been committed by the Courts. There is an additional reason as to why the order should not be interfered with at this stage. As we have already noted, the complainant died in Novem ber 1996, immediately thereafter, the sons applied for impleadment allowing them to continue prosecution against the accused persons by the applica tion dated 17. 1. 1997. The said application was allowed and permission was granted by an order dated 23. 5. 1997. The said order was never challenged by the appellants and it had become final. Name of the first respondent was entered on 14. 5. 2000. Thereafter witnesses were also examined. INsofar as application dated 4. 8. 2004 of the accused is concerned, it was under Sec tion 239 of the Code which provides for discharge of the accused. The only ground put forward by the accused was that no prima facie case had been made out against them. IN the light of above facts also, in our opinion, this is not a fit case to exercise discretionary power under Article 136 of the Consti tution. " Here in this case during the pendency of the proceedings, complainant died, his sons were permitted to continue the prosecution. Magistrate granted permis sion. That order, having not been challenged by the applicant, become final. Even otherwise there appears no illegality in the grant of permission. Proceedings of complaint case therefore, did not abate. It is next contended by the learned Counsel for the applicants that even if the allegations made in the complaint with regard to the arrest or detention of Sri Ashok Dixit, son of the complainant are accepted to be true on its face value, the alleged act or omission was done by the applicants while acting or purporting to act in the discharge of their official duties and no cognizance could be taken by the learned Magistrate except with the previous sanction of the State Govern ment. It was argued that since no such sanction was obtained by the complain ant, complaint case was not maintainable at law and was liable to be dismissed only on that ground. The learned Magistrate after taking into consideration the allegations made in the complaint dismissed the complaint as the same was not maintainable for the want of sanction under Section 197 of the Code. But the learned Addl. Sessions Judge in criminal revision set aside that order observing that the decision of the learned Magistrate was premature. He ought to have seen the entries in the General Diary whether they warrant the detention of the appli cants in any of the offences or whether the lifting of Sri Ashok Dixit, the son of the complainant, was for the purpose as was alleged by the complainant. The learned Counsel for the complainant submitted that it was all premature act of the learned Magistrate even otherwise, the want of sanction under Section 197 (1) of the Code did not affect the jurisdiction of the Court to proceed in the circumstances when there are allegations that "lifted for making his encounter". It may be one of the defences available to the accused and he can raise that defence at the appropri ate stage. Further on this ground the proceedings of the complaint case been held up and the accused could be tried. This submission made on behalf of the complainant cannot be accepted in view of the opening words of section 197 (1) of the Code and the object sought to be achieved by it, and the decisions of Su preme Court clearly indicate that a prosecution hit by that provision cannot be launched without the contemplated sanction. It is a condition precedent as it were, for a successful prosecution of a public servant when the provision is at tracted. This plea of the applicants is required to be attended properly and cannot be deferred.;