PYARE LAL SHUKLA Vs. STATE OF U P

JUDGEMENT

(1.) R. N. Ray, J. Heard learned counsel for the revisionist who submitted that on perusal of complaint petition dated 21- 4-1992 the learned Magistrate ought not to have proceeded to examine the witness and issues summons because the opposite party is a police officer and as per allegation the alleged occurrence took place while he was on duty and as such the provisions of Section 197, Cr. P. C. was to be complied with before filing complaint petition. Learned court below erred in law in proceeding with the complaint petition without sanction for the same. It has been further submitted that case crime No. 140/92 under Sections 394/411/323/342/504/506/166/109, I. P. C. was registered and after investigation the police submitted charge-sheet and learned court below took cognizance against the complainant's men and others. This complaint petition is a counter blast against that case and this revisionist and others have been falsely implicated by fabricating story and that if at all this revisionist along with others visited the place of alleged occurrence of the complainant and did anything while discharging his official duty then prior sanction is required under Section 167 (2) Cr. P. C. The learned Magis trate was wrong in issuing process after examination of the complainant or his witnesses. This revisionist appeared before the learned court below and filed a petition for withdrawing the summons or to recall the order by which the summons were issued on the ground that the complaint was not maintain' able and cognizance was bad due to non-fulfillment of the requirement as con templated in Section 167, Cr. P. C. It has been submitted that after getting the summons this revisionist appeared before the learned court below and filed petition for recalling the same as stated above, so it was wrong for the learned court below to observe that in spite of summons this revisionist never appeared before the learned court below and was pleased to pass the impugned order dated 4-7-1995 issuing warrant. It has been submitted that the impugned order was passed by the learned court below in disregard to the provisions of law and in support of his contention he has placed reliance upon the ruling reported in AIR 1988 All 226 at page 227 ; 1988 JIC 518 (All)-Mohan v. State of U. P. and others.

(2.) DULY considered the submissions and also heard learned A. G. A.

(3.) THE act complained of and official duty are required to be so inter related that one can postulate reasonably that it was done by the accused in discharge of this official duty otherwise he was not entitled to get the benefit of Section 197, Cr. P. C. In this regard the guideline has been given by Appex Court in a decision as reported in AIR 1969 SC 686-Prabhakar v. Harlekar. THE police officer used abusive language to complainant when the complain ant was in lock-up as an accused of a cognizable offence. Further held that in that case no sanction was needed for prosecuting against such police officer because using of such abusive language was not within the scope of discharge of his official duty. In this regard reliance has been placed upon the decision as reported in 1988 Crl. L. J. page 1038. THE test is that whether act complained of is directly or indirectly connected with the discharge of his official duty. In this regard reliance may be placed upon a decision reported in AIR 1966 Supreme Court 220 and also in AIR 1967 Allahabad 333.