N. L. TIBREWAL, J. - (1.) THE petitioner is aggrieved against the order of the Additional Munsif and Judicial Magistrate, Laxmangarh, by which the applications of the petitioner and of other co-accused persons to drop criminal proceedings against them for want of sanction under Section 197 Code of Criminal Procedure (for short 'the Code'), were rejected. After being unsuccessful in the revision in the Court of Additional Sessions Judge No. 1, Alwar, the present petition under Section 482 of the Code has been filed. In the normal course I would not have entertained this petition after the right of revision having been exercised by the petitioner, but the question involved in the matter, goes to the root of the case and is a jurisdictional one, I propose to decide the same.
(2.) TO appreciate the question of law which calls for consideration, it is necessary to narrate the facts in brief. Non-petitioner Tikka Kan Singh filed a complaint on 14. 6. 82 against the petitioner and three other police constables in the Court of Judicial Magistrate, Lalgarh, with regard to an incident alleged to have taken place at 10 AM on June 12, 1982. At the relevant time, the petitioner Rameshwar Dayal was Assiscant Sub-Inspector at Police Station Govindgarh, while the co-accused Shivlal was Head Constable and other two accused Balbir Singh and Poonam Chand were Constables there. The allegations against the accused persons, detailed out in the complaint, are that the complainant had come Govindgarh from his village to make some purchases at about 10 AM on June 12, 1982 when he was taken to the Police Station by the accused persons. His brother Ajit Singh, who was a teacher at that time, was also called at the Police Station. It is alleged that when the complainant asked about his fault for which he was brought at the Police Station, the accused petitioner abused and threatened him to put in jail and gave beating telling him (complainant) that he had made a complaint against him to the Circle Officer. Then he called the other three co-accused persons to whom the complainant was handed over. All the four accused then gave beating to the petitioner and the witnesses Jagjit Singh and Harbhajan Singh. Then the accused petitioner asked the other co-accused to put the complainant behind the bars. The learned Magistrate after recording the statements of the complainant under Section 200 of the Code and of the witnesses Bakshi Singh and Atam Singh, ordered to issue process against all the accused persons after being satisfied that there was sufficient ground for proceeding against them under Section 323 IPC. This order was passed on 1. 2. 83. It appears that summons were issued for securing the attendance of the accused parsons. Inspite of the fact that the petitioner was posted as Assistant Sub-Inspector at Police Station Govindgarh and other co-accused were also posted there as Constables, the summons could not served upon them for a considerable long time. Then the learned Magistrate issued bailable warrants to secure the attendance of the accused persons. The learned Magistrate in his order dated 12. 7. 84 expressed great anxiety that the accused persons, even being police personnels, were not being served and the summons sent to the police for service were not being returned. He further directed that non-bailable warrant be issued through S. P. Alwar to secure the attendance of the accused persons. Subsequently, bailable warrants were issued for seeking attendance of the accused persons. Then, only one accused Shivlal appeared in the Court on 25. 10. 84 and other accused, including the petitioner, were still to appear in the Court. The co-accused Shivlal too absented to appear in the Court on October 30, 1984, as such, the Court directed to issue a non-bailable warrant against him. It appears that thereafter bailable warrants were issued from time to time to secure the attendance of the accused persons, but they did not appear in the Court. On July 22, 1985, the petitioner appeared in the Court and he was released on bail on furnishing his personal bond. The petitioner, thereafter, moved an application before the learned Magistrate on September 10, 1985 seekiag protection under Section 197 (3) of the Code. In the said application it was alleged that the complainant Tikka Kan Singh and his 25-30 associates were indulged in rioting and after being armed with deadly weapons, they made an attack on their opponents at village Aldhani. It was further stated in the said application that the petitioner was directed by the Station House Officer, Police Station Govindgarh, to reach at the place to maintain law and order and prevent breach of peace and he arrested the complainant and his associates under Sections 107/151 of the Code. With regard to the injuries sustained by the complainant and two other persons, an explanation was given in the said application that they sustained the said injury when they were engaged in demolishing the 'pakka wall' and destroying the doors.
(3.) AS other co-accused were not served upon, the said application could not be heard and decided by the learned Magistrate. Ultimately the other accused persons also appeared sometime in the year 1987 and they also moved similar applications under Section 197 (3) of the Code with a prayer to drop the proceedings against them. The learned Magistrate heard arguments on these applications on July 19, 1988 and the same were rejected on the same day holding that the act of the accused persons giving beating to the complainant and his associates was not in the discharge of their official duty. The revision preferred against the said order was also dismissed by the Additional Sessions Judge No. 1, Alwar vide his judgment dated 20. 7. 90. The learned counsel for the petitioner vehemently urged that the accused petitioner was discharging his duties as Assistant Sub-Inspector at Police Station Govindgarh. Similarly other accused persons were Head Constable/constables at the said Police Station and for the incident of June 12, 1982 they arrested the complainant and his associates under Section 107/151 of the Code. According to the learned counsel, all the accused persons are police officials charged with the maintenance of public order, as such, they are entitled to get the protection under Section 197 of the Code and in the absence of proper sanction of the State Government the proceedings initiated against them deserve to be dropped. The learned counsel further argued, that the view of the learned Courts below that the action of the petitioner and the co-accused was not a part of their 'official duty', is erroneous. The learned counsel further drew my attention to the complaint under Section 107-116/151 of the Code, filed by the petitioner, as Assistant Sub-Inspector and Incharge Police Station Govindgarh, in the Court of S. D. M. Rajgarh against the complainant non-petitioner and eight other persons to show that there was a strong dispute between the two rival factions with regard to a piece of land, the details of which have been given in the complaint. An incident had taken place between the members of two groups few days earlier also about which cross complaints were made by them and that on June 12, 1982, the complainant along with his associates made an attempt to forceably occupy the plot in question by demolishing the constructions etc. and also injured some members of the opposite group. On getting the information at the Police Station, the petitioner along with the Head Constable and other Constables reached at the spot. The complainant Tikka Kan Singh, Jagjit Singh, Harbhajan Singh and Jarnail Singh remained there while their other associates succeeded to have an escape from that place. From the said report it further appears that so far the injuries sustained by the complainant and his two associates, an explanation has been given that the same were received at the hands of the members of the opposite group who were also pelting stones at the time of the incident. On the other hand, Mr. Rafiq, the learned counsel for non-petitioner No. 2 argued that the three Constables do not fall in the definition of 'police officials', as such, they cannot claim any protection of Section 197 of the Code. He further submitted that at the relevant time, the accused persons were not charged with the maintenance of public order so as to claim the above protection. Lastly, it was argued that at this stage there is no material on record to show that the alleged offences have been committed by the accused persons while acting or purporting to act in the discharge of their official duty. To substantiate this argument, the learned counsel argued that as per the averments made in the applications by the accused persons, the complainant and his two associates sustained the injuries while they were demolishing the 'pakka wall' and as per the complaint under Section 107-116/151 of the Code, filed by the petitioner against the complainant and other persons, at the hands of the members of the opposite party. The learned counsel submitted that the above defence taken by the accused persons can be decided only after recording the evidence in the trial of the case, but from the above assertions made by the accused persons, it cannot be said that they are pleading to have caused the injuries to the complainant and his associates while acting or purporting to act in the discharge of their official duty. ;