RAM ADHAR YADAV Vs. RAMCHANDRA MISRA

JUDGEMENT

(1.) An interesting question has cropped up in the instant case u/S. 482. Cr. P.C. When can the bar u/S. 132 read with S. 197, Cr. P.C. be attracted?

(2.) Complaint case itself is that the applicant accompanied by a sub-Inspector and few constables had gone to the locality to discharge its official duties. In the process an objection was raised by the complainant- opposite party. It is alleged that on that objection, the complainant was maltreated and, some property belonging to him was taken away, on the stress of' these facts, learned counsel for the applicant Sri C. K. Parekh argued that S. 180, Cr. P.C. was applicable and the protection is available to police officer u/S. 132, Cr. P.C. and in the absence of sanction as required u/ S. 197, Cr. P.C. the order of the Chief Judicial Magistrate, Varanasi summoning the applicant and committing him for trial and consequent further proceedings in sessions Trial No. 160 of 1985 arising from complaint case No. 3877 of 1985 are illegal and should be quashed. Sri B. D. Ojha, learned counsel for the complainant-opposite party argued that since the action of the applicant was an offence not in the discharge of his official duties, the Protection of S. 132 read with S. 197, Cr. P.C. was not available to the applicant. And, unless raised during trial, the applicant cannot raise it through this application.

(3.) In the instant case the complainant's allegations go to indicate that the police force had gone to the locality for discharging some of its official duties and in that process there was an altercation because of the objection raised to the police action by the complainant and then it is alleged that the police personnel took away some property of the complainant. In view of the aforesaid specific averments it is clear that the police personnel including the applicant had no intention to commit any crime as against the complainant. This being so, it will be difficult to imagine how prosecution can override the legal bar created by S. 132 and 197 Cr. P. C. In this case the action of the police personnel will have to be held to be in the discharge of the official duty because of the prosecution case itself and, therefore, provisions contained in S. 132, Cr. P.C. and S.197, Cr. P.C. will be attracted beyond doubt. The applicant accused shall not have to wait for the point to be raised during trial.