PRITAM SINGH Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) A complaint was filed by one Shri M. Saleem Siddiqui, Advocate, against the petitioner in the court of Shri G.P. Thareja, Additional Chief Metropolitan Magistrate, Delhi, under Sections 161/323/ 504/341/34 Indian Penal Code. On 18-7-85, the learned Magistrate recorded an order summoning the petitioner. On 7-8-85 after the petitioner and the other accused appeared before the learned Magistrate, an application was submitted to the learned Magistrate to the effect that the offence had been committed by them in the discharge of their official duties during the course of their employment in Delhi Traffic Police and that in view of the provision of Section 140 Cr. P.C. no cognizance of the offence could have been taken against them. The learned Magistrate has declined to accept the plea. These two orders are as under:- "18-7-85: Present complainant. Heard the complainant. I have gone through the complaint and the testimony of two witnesses that t accused demanded a sum of Rs. 100.00 as compounding fee and Rs. 100.00 as gratification and also detained M. Saleem Siddique Advocate for 15 minutes without any just or sufficient cause by the accused. Police officer has no right to demand composition money unless a violator submits for composition. The accused has wrongfully confined the complainant for the purpose of extorting from the complainant the composition money and thus prima-facie committed an offence u/s 347 read with Section 34 Indian Penal Code from the deposition of the complainant. I further find that the accused attempted to obtain from the complainant gratification of Rs. 100.00and thus prima-facie committed an offence u/s 161/34 Indian Penal Code. 144 It is further deposed by the complainant that the accused pushed the complainant. A police officer in the discharge of his traffic duties has no right to pull or push any person. Thus force was used by the accused against the complainant which prima facie attracts Section 352 Indian Penal Code. The complainant has detailed the abuse. I find such an abuse is an insult which may provoke breach of peace. The police officer has no authority to insult any one by abuses and filthy language. The prosecutions under Section 504/34 Indian Penal Code are also attracted. Therefore, I find prima facie case u/s 347/504/161/ 352 and 34 Indian Penal Code is made out against the accused persons." "7-8-85 : Both the accused present in person. Accused have come with an application that the offence has been committed by them in the discharge of their duties and during the course of their employment in Delhi Police (Traffic). In view of Section 197 Cr. P.C. read with notification dated 7/4/80 and Section 140 of the D.P. Act cognizance cannot be taken against accused, therefore, the accused be discharged. I have heard the learned counsel Shri S. Grewal Advocate. The allegations against accused in the complaint for which cognizance has been taken are that the accused demanded a sum of Rs. 100.00 as illegal gratification otherwise complainant will not be allowed to go. The accused further abused the complainant and uttered words like "TERI SARI VAKALAT TERI GAAND MEIN GHUSER DOONGA". The accused further pushed the complainant. In the colour of police authority, there is no duty of the accused either to abuse any person or to push any person in their traffic duties or to demand illegal gratification. The act of the accused does not fall within their authority or in the colour of their office. Application of the accused on this ground is not maintainable. Secondly, u/s 140 of the D.P. Act if the complaint is preferred within three months then it is not barred. Therefore, provisions of Section 140 can not be attracted. Parliament u/s 140 DP Act has given powers to the court to take cognizance against police officers for their act even if done wrongfully in the colour of their office. Notification copy of which has been filed by the accused is to the effect that police officers of all ranks of Delhi police charged with the maintenance of public order are extended the benefit of Section 197 Cr. P.C. This notification read with 197 Cr. P.C. is at variance with the provisions of Section 140 of D.P. Act. Any notification which is issued by the Delhi Admn. is against the will of parliament cannot be given any significance. Will of the Parliament contained in Section 140 of the D.P. Act shall prevail. The application of accused is thus not maintainable and it cannot be allowed. It is rejected without hearing other party. Accused have been summoned u/s 161/347 Indian Penal Code which are warrants cases. Therefore, notice is not to be issued to the accused, and instead before charge evidence is to be recorded. Case is fixed for pre-charge evidence on 21-8-85.

(2.) It is against these two orders that the aggrieved petitioner has come in revision with the request that the order dated 18/7/85 by which the petitioner was summoned be quashed.

(3.) The brief facts on which the complaint is based is that on 11-7-85 at 9 AM while the complainant was going on his two wheeler scooter bearing No. DIS-4606 along with his clerk Mr. M. Usman Gandhi, the accused No. 2, Sada Nand, Head Constable in uniform stopped him at the crossing of Paharganj and asked him as to why he was driving the scooter without helmet. He was told that he will have to pay Rs. 100.00 as fine for compounding the offence and another Rs. 100.00 as illegal gratification. The complainant allegedly asked the petitioner to challan him and allow him to go but he was asked first to pay a fine of Rs. 100.00 and another Rs. 100.00 as gratification or else he would not be allowed to go and collect the scooter. At this stage respondent No. 2 allegedly disclosed that he was an Advocate and thereupon the petitioner prepared a challan against him. Even thereafter allegedly the complainant was not allowed to go and was illegally detained for 15 minutes. According to the complainant, many people assembled there and he was able to escape but his two-wheeler scooter was detained. He has further complained that the accused persons mis-behaved and manhandled him.