HARINDER SINGH Vs. MOHINDER SINGH

JUDGEMENT

(1.) KARTAR Singh respondent No. 3 filed a complaint against the father of the petitioner and in pursuance thereto he was picked up by respondents 1 and 2 on December 27, 1990. He was taken to Police Station, Sadar, Gurdaspur and while in custody, was given a severe beating by respondents No.1 and 2. The father of the petitioner sent telegrams to various functionaries of the Punjab Government, narrating the sequence of events and also moved an application in the Court of Duty Magistrate, Gurdaspur on December 29, 1990 with regard to the illegal detention of the petitioner. Respondents No. 1 and 2, however, did not produce him before any Court till January 1, 1991 when he was produced before Shri H.S.Ball, Executive Magistrate, Gurdaspur in proceedings under Sections 107/151 of the Code of Criminal Procedure and was released on bail. The petitioner thereafter filed a complaint (Annexure P-2) in the Court of the Chief Judicial Magistrate, Gurdaspur, praying that respondents No.1 and 2 be proceeded against under Sections 323 and 342 of the Indian Penal Code. Vide order dated May 6, 1992, the Judicial Magistrate Ist Class, Gurdaspur, after examining the preliminary evidence produced by the petitioner, held that prima facie, it appeared that the detention of the petitioner from December 27, 1990 to December 29, 1990, was without authority of law and, accordingly, summoned the accused to stand trial. Aggrieved by the aforesaid order, respondent No.2 Mukhtiar Singh moved an application before the Magistrate averring that prosecution against the respondents could not proceed in the absence of the sanction envisaged under Section 197 of the Code of Criminal Procedure. The Magistrate, agreeing with the contentions raised in the application held vide order dated February 4, 1993, that in the absence of sanction under Section 197, Cr.P.C. the matter had to be dropped. However, while deciding against the petitioner as above, the Magistrate gave a positive finding that detention of the Petitioner from December 27, 1990 to December 29, 1990 was illegal, but as the illegal detention was in pursuance of the proceedings under Sections 107/151 of the Code of Criminal Procedure, which were initiated on December 30, 1990, the respondents were discharging their official duties and their prosecution required prior sanction of the competent authority. It was held further that even if the respondents had exceeded their authorities by unlawfully detaining the complainant, they had committed the offence in the discharge of their official duties and even on this score, they were entitled to the protection afforded by Section 197, Cr.P.C.

(2.) MR . Mandeep Bedi, learned counsel for the petitioner, as urged two points before me. He has argued that an application seeking the protection of Section 197, Cr.P.C. had been moved only by respondent No.2 Mukhtiar Singh, whereas the trial Magistrate had given the benefit of the said application to both the accused. He also submitted that once a finding has been recorded by the trial Magistrate that the detention of the petitioner from December 27, 1990 to December 29, 1990, was illegal, the question of the respondents seeking the protection of Section 197 of the Code of Criminal Procedure on the ground that they were performing their official duties, would not be available to them. Mr. H.S. Mann, learned counsel for the respondents has, however, sought to support the order of the Magistrate and has urged that the finding recorded by him were prima facie based on evidence and a final decision had yet to be taken.

(3.) FOR the reasons recorded above, the present petition is allowed, the order of the Judicial Magistrate Ist Class, Gurdaspur dated 4.2.1993 is set aside and the trial Magistrate is directed to proceed expeditiously according to law. The parties through their counsel are directed to appear before the trial Magistrate on July 27, 1994.