Punjab and Haryana High Court: In a petition filed under Section 482 of Criminal Procedure Code, 1973 (‘CrPC’) seeking quashment of criminal complaint against police official for commission of offences punishable under Sections 176, 177, 181, 191, 192 & 193 of the Penal Code, 1860 (‘IPC’), in a matter pending before the Court of Chief Judicial Magistrate, Deepak Gupta, J.
Factual Matrix
A First Information Report (‘FIR’) was registered at Women Police Station under Sections 365 and 376-D of IPC and the two accused — husband and wife, were declared proclaimed offender vide order dated 17-05-2017. Both of them applied for anticipatory bail on 16-11-2017 before Additional Sessions Judge, Nuh, which got dismissed on 5-12-2017 with the observation that the couple had concealed the fact of being declared proclaimed offenders previously. This led the couple to come up with another anticipatory bail on 11-01-2018, again concealing the fact of being declared proclaimed offenders earlier.
During second bail application, reply was filed by the petitioner who was posted as SHO Women Police Station at Nuh, and the said reply also did not disclose before the Court that the said couple had been declared a proclaimed offender. Through order dated 17-01-2018, the Additional Sessions Judge dismissed the bail petition and ordered for proceeding against the SHO and the accused couple under Section 195(1)(a) of CrPC. A complaint was filed for offences committed under Sections 176, 177, 181, 191, 192 and 193 of IPC. This led the Dusty Magistrate to order issuance of notice against the three.
Contentions
While seeking quashment of criminal complaint and consequential proceedings, it was contended on behalf of the said SHO that she was a member of Haryana Police service currently serving as a Sub-Inspector, and at the time of incident, she was posted as Station House Officer of Nuh. It was stated that the fact regarding accused persons being proclaimed offenders was undisclosed since the investigating officer of the case was not available at the relevant time, and the Court sought immediate filing of report. It was particularly contended that no sanction was obtained from the State Government before filing the complaint against the SHO as required under Section 197 of CrPC, and thus, no Court could take cognizance of the offence. On the other hand, it was contended on part of the State that since the complaint was filed by the Court itself, no sanction under Section 197 of CrPC was required.
Court’s Analysis
The Court perused Clauses (2) and (3) to Section 197 of CrPC and pointed towards Haryana Government’s notification dated 25-07-1980 which extended the benefit of Section 197(2) and (3) of CrPC to all serving police officials. It further cited ASI Balbir Singh v. State of Punjab, 1992 SCC OnLine P&H 956 and Vijay Kumar v. State of Haryana CRR1274-2015 (P&H) regarding mandatory prior sanction by the State Government before launching prosecution against a public servant discharging his/her duties. Further citing D. Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695, the Court hinted towards the need to confirm whether the act was totally unconnected with the official duty, or otherwise, cognizance could not be taken for discharging an official duty without requisite sanction.
Conclusion – Section 197 of CrPC sanction required
The Court came back to the instant case to express that even if it was assumed that the said SHO by filing reply to the accused persons deliberately or negligently skipped on the mention of fact regarding the accused persons being declared proclaimed offenders previously, such an act was performed while discharging her duties as a public servant. Thus, sanction from the State Government under Section 197(3) of CrPC was necessary to be obtained in view of the Haryana Government’s notification.
Since no prior sanction was obtained before filing impugned complaint or passing the order dated 19-01-2018, cognizance could not have been taken by the Magistrate. The Court held that the complaint and impugned order could not sustain in the eyes of law and quashed the same.
[Muniya Devi v. State of Haryana, 2023 SCC OnLine P&H 3602, decided on 8-12-2023]
Advocates who appeared in this case :
For Petitioner: Advocate Vaibhav Sharma
For Respondent: Additional Advocate General Randhir Singh
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