G P PEDKE Vs. SYED JAVED ALI

JUDGEMENT

(1.) THE present application has been filed by the applicant, who is the Police Sub-Inspector, on the ground that he cannot be prosecuted by the non-applicant unless the sanction under S. 197 of the Code of Criminal Procedure is obtained. It has been argued by Mr. Chouby, the learned A. P. P. appearing on behalf of the P. W. 1 applicant that the offences alleged to have been committed by the applicant have been committed in discharge of his official duties and, therefore, the learned trial Judge was not right in directing issuance of process against him. He has also invited my attention to the notification dated 2/06/1979 in this behalf.

(2.) THE facts. in brief, which gave rise to the present application are as under : The non-applicant Syed Javed Ali is an advocate. He filed a complaint on 28-8-1990 against the applicant and two others under Sections 294, 506 Part 1 and 11, 336,427,341,342,500 read with Section 34 of the I. P. C. and under Section110 read with Section 117 of the Bombay Police Act. According to the complainant/non-applicant, the police asked him and his two brothers, viz. , Syed Ashar Ali and Kumar Ali, to accompany him to Tahsil Police Station. Accordingly, the complainant and his brothers went to the police station, where the applicant was present. The complainant introduced himself to the applicant by showing his identity card and wanted to sit on the bench. The applicant is alleged to have said "khada Rahe Sale Tere Bap Ka Ghar Nahin Hai". The complaint further shows that the complainant then wanted to telephone to his relations from the police station, but the applicant abused him saying"bhosdi Ke Yeh Tere Bap Ka Phone Nahin Hai, Yhe Sarkari Phone Hai". According to the complaint, on 11-8-1990 at about 6-30 to 7-00 a. m. the applicant ordered his men to take the complainant and his brothers to the Mayo Hospital, Nagpur in handcuffed conditions, notwithstanding that the complainant pointed out legally he could not be handcuffed. The applicant was enraged and alleged to have said "sale Chup Rahe, Jyada Bolega to Ek Jhapad Dunga, Aur Apna Supreme Court Apne Jeb Main Rakh". The applicant continued saying"bhosdi Ke Vakilon Ne Bahot Ane Main Laliya Nain, In Ki Masti Jirana Hai".

(3.) ACCORDING to the complainant/ non-applicant, the filthy abuses (quoted supra) given by the applicant could not be said to have been given in the discharge of his official duty and, therefore, the protection under Section 197 of the Code of Criminal Procedure was not available to the applicant. Mr. Nawab appearing on behalf of the nonapplicant relying on the decision of the Supreme Court reported in AIR 1973 SC 2591 : (1973 Cri LJ 1795), Puthraj v. State of Rajasthan submitted that the trial Court was perfectly justified in issuing the process against the applicant, notwithstanding the absence of sanction. In this decision, a complaint was filed by the clerk of the divisional secretary of National union of Postal Employees against the Post Master General, Rajasthan, alleging that the Post Master General came on test to Jodhpur on 23-10-1971 and thereafter arrived at the Head Post Office Jodhpur in connection with inspection. The complainant submitted his representation to the Post Master General for cancelling his transfer. The Post Master was enraged by the complainant and kicked the complainant in his abdomen and abused him by saying "sale, Goonda, Badmasa, on one hand you are complaining and on the other hand you are requesting for cancellation of transfer. " Objection was taken by the Post Master General that the complaint was not tenable in the absence of sanction u/ S. 197 of the Code of Criminal Procedure. Though the Munsiff Magistrate dismissed the application, the High Court allowed the revision petition filed by the Post Master General and set aside the order of the lower court. In appeal, the Supreme Court while reversing the order of the High Court has observed as under :