Pramod A R Nimesh v. Sanjeev Kumar Sharma and others), under Sections

4. Learned counsel for the applicants submitted that impugned order is against facts and law and thus, liable to be set aside. The impugned summoning order is against law and the provisions of Section 195 Cr.P.C. have not been complied with. Similarly, the procedure prescribed under Section 340 Cr.P.C. was also not adopted by the trial Court. Further, the applicants, being police officials, were discharging their official duty and thus, they can not be prosecuted without prior sanction under Section 197 Cr.P.C. Learned Magistrate has summoned the applicants for various offences without applying judicial mind and without considering whether the ingredients of said offences are made out or not. Referring to facts of the matter, it was submitted that no case is made out against the applicants. Learned counsel has placed reliance upon Indra Devi Vs. State of Rajasthan & Anr. (Criminal Appeal No.594 of 2021), decided on 23.07.2021.

5. Learned A.G.A. and learned counsel for the opposite party no.2 have opposed the application and submitted that there is no illegality or perversity in the impugned order. The applicants, being police officials, have let off the accused persons, who have committed robbery of the car and other property of complainant. The report of the complainant was not registered. The act and mischief of the accused persons can not be said to have been committed while acting or purporting to act in discharge of official duties and has no reasonable nexus with their official duty and thus, Section 197 Cr.P.C. is not attracted. Learned counsel for the opposite party No. 2 has placed reliance upon Vishwanath Vs. State of UP and others 2024:AHC:50554.

6. I have considered the rival submissions and perused the record.

7. Perusal of record shows that the opposite party no.2 has filed application under Section 156(3) Cr.P.C. against private opposite parties, which was registered as a complaint case. The allegation of the complainant is that on 05.01.2021 at about 07:30 P.M. in the area of Vasundhara, Ghaziabad, seven miscreants have robbed his Santro Car (registration No.DL13C7116), golden chain, wrist watch and cash of Rs.42,000/- from him and soon after the incident, the complainant has informed the police by calling at phone number 112. On the same night, police have apprehended four miscreants namely, Harishpal, Vinod Kumar Mishra, Parmanand Pal and Gangaram Arya and at the instance of Harishpal and Vinod Kumar Mishra, the said Santro Car, golden chain, wrist watch and cash of Rs.42,000/- of complainant were recovered. On the same night the complainant has made a tehreer to the In-charge of Police Station, Indirapuram and the SHO (applicant No. 1) has told him to take the copy of F.I.R. on the next day. On 06.01.2021 at 10:30 A.M. when complainant reached at the Police Station, Indirapuram, applicants and co- accused S.I. Govind Singh pressurized the complainant to withdraw the complaint. The said police officials have not taken any action against the miscreants, who were apprehended and recovery was made from them. The said miscreants were let off by the applicants. The complainant has made several complaints to higher Authorities but in vain. On 11.01.2021, the complainant has filed an application under Section 156(3) Cr.P.C. before C.J.M., Ghaziabad, wherein a false and misleading report was submitted and that application was rejected on the ground that the jurisdiction to entertain the matter lies before Special Judge SC/ST Act. On

18.01.2021 the complainant has filed an application under Section 156(3) Cr.P.C. before the Court of Special Judge SC/ST Act, Ghaziabad, wherein the police have again submitted false and misleading report stating that there was some dispute between the parties on account of money. On 15.01.2021 the complainant has moved an application before the C.J.M. Ghaziabad for release his car, wherein police have submitted report that complainant himself has brought his car to the police station and left the same there and it was never recovered. Thus, the essence of complaint of the complainant is that the applicants and co-accused, being police officials, have let off the miscreants, who had committed robbery from the complainant and his case was not registered.

8. The complainant was examined under Section 200 Cr.P.C., wherein he has supported the version of complaint. One Asharam and Vijay Bhati were examined under Section 202 Cr.P.C. and thereafter applicants and co-accused S.I. Govind Singh were summoned for offence under Sections 166, 167, 182, 201, 209, 218, 219, 420, 409, 120B, 468, 471, 506 IPC by impugned order dated 04.06.2022.

9. It appears that while passing the impugned order, learned Magistrate has not considered whether the ingredients of aforesaid offences are made out or not. Further, there is no evidence regarding forgery of any document so as to attract Section 468 IPC. The learned Magistrate has also not considered the ground whether provisions of Section 197 Cr.P.C. are attracted or not, Thus, impugned order is not in accordance with law.

10. However, as stated above, the allegations against the applicants and co-accused Govind Singh are quite serious in as much as regarding the alleged incident of robbery/dacoity against the complainant, the applicants / police officials have apprehended above referred four miscreants and the car and other articles, including cash, of complainant were recovered from them but despite that the said miscreants were let off. When complainant has moved an application for release of his car, a false report was submitted that the complainant himself has left it at the police station and it was never recovered. Here it would be relevant to mention that learned AGA has pointed out the report of brief inquiry conducted by the Circle Officer-IIIrd Ghaziabad, wherein vide report dated 28.10.2021, it was observed that in the said matter, police officials of Police Station, Indirapuram have committed gross negligence. In the similar way, it has been brought into the notice that in inquiry report dated 10.07.2022, the Superintendent of Police, Hapur has concluded that applicant no.1 Sanjeev Kumar Sharma, being In-charge of Police Station, Indirapuram has not complied the provisions of law by not registering the case of complainant and the Investigating Officer did not inspect the spot and that statement of complainant was not recorded. In view of these reports, prima facie it appears that the complaint of opposite party no.2 is not without any substance. The allegations raise a serious question about the conduct and working of applicants / police officials. In view of these facts and circumstances, it would be proper that a detailed investigation be conducted by a senior police officer in terms of provisions of Section 202(1) Cr.P.C. and report of same be submitted to the C.J.M. Ghaziabad and after that matter be considered by the learned C.J.M. on the point of summoning of applicants.

11. In view of aforesaid, the impugned summoning order 04.06.2022 is set aside and by invoking the provisions of Section 202(1) Cr.PC. it is directed that a detail investigation shall be conducted by a Police Officer not below the rank of S.P. / D.C.P. in the matter and the report of the same shall be submitted to the Court of Chief Judicial Magistrate, Ghaziabad. The Commissioner of Police, Ghaziabad is directed to nominate a Police Officer to conduct the aforesaid investigation under Section 202(1) Cr.P.C. in accordance with law. The investigation shall be completed within 60 days. After receipt of the report of investigation under Section 202(1) Cr.P.C., learned Chief Judicial Magistrate shall consider the matter on point of summoning and pass an order in accordance with law.

12. The application under Section 482 Cr.P.C. is disposed of in above terms. Order Date :- 6.1.2025 SP/-/RKM

4. Learned counsel for the applicants submitted that impugned order is against facts and law and thus, liable to be set aside. The impugned summoning order is against law and the provisions of Section 195 Cr.P.C. have not been complied with. Similarly, the procedure prescribed under Section 340 Cr.P.C. was also not adopted by the trial Court. Further, the applicants, being police officials, were discharging their official duty and thus, they can not be prosecuted without prior sanction under Section 197 Cr.P.C. Learned Magistrate has summoned the applicants for various offences without applying judicial mind and without considering whether the ingredients of said offences are made out or not. Referring to facts of the matter, it was submitted that no case is made out against the applicants. Learned counsel has placed reliance upon Indra Devi Vs. State of Rajasthan & Anr. (Criminal Appeal No.594 of 2021), decided on 23.07.2021.

5. Learned A.G.A. and learned counsel for the opposite party no.2 have opposed the application and submitted that there is no illegality or perversity in the impugned order. The applicants, being police officials, have let off the accused persons, who have committed robbery of the car and other property of complainant. The report of the complainant was not registered. The act and mischief of the accused persons can not be said to have been committed while acting or purporting to act in discharge of official duties and has no reasonable nexus with their official duty and thus, Section 197 Cr.P.C. is not attracted. Learned counsel for the opposite party No. 2 has placed reliance upon Vishwanath Vs. State of UP and others 2024:AHC:50554.

6. I have considered the rival submissions and perused the record.

7. Perusal of record shows that the opposite party no.2 has filed application under Section 156(3) Cr.P.C. against private opposite parties, which was registered as a complaint case. The allegation of the complainant is that on 05.01.2021 at about 07:30 P.M. in the area of Vasundhara, Ghaziabad, seven miscreants have robbed his Santro Car (registration No.DL13C7116), golden chain, wrist watch and cash of Rs.42,000/- from him and soon after the incident, the complainant has informed the police by calling at phone number 112. On the same night, police have apprehended four miscreants namely, Harishpal, Vinod Kumar Mishra, Parmanand Pal and Gangaram Arya and at the instance of Harishpal and Vinod Kumar Mishra, the said Santro Car, golden chain, wrist watch and cash of Rs.42,000/- of complainant were recovered. On the same night the complainant has made a tehreer to the In-charge of Police Station, Indirapuram and the SHO (applicant No. 1) has told him to take the copy of F.I.R. on the next day. On 06.01.2021 at 10:30 A.M. when complainant reached at the Police Station, Indirapuram, applicants and co- accused S.I. Govind Singh pressurized the complainant to withdraw the complaint. The said police officials have not taken any action against the miscreants, who were apprehended and recovery was made from them. The said miscreants were let off by the applicants. The complainant has made several complaints to higher Authorities but in vain. On 11.01.2021, the complainant has filed an application under Section 156(3) Cr.P.C. before C.J.M., Ghaziabad, wherein a false and misleading report was submitted and that application was rejected on the ground that the jurisdiction to entertain the matter lies before Special Judge SC/ST Act. On

18.01.2021 the complainant has filed an application under Section 156(3) Cr.P.C. before the Court of Special Judge SC/ST Act, Ghaziabad, wherein the police have again submitted false and misleading report stating that there was some dispute between the parties on account of money. On 15.01.2021 the complainant has moved an application before the C.J.M. Ghaziabad for release his car, wherein police have submitted report that complainant himself has brought his car to the police station and left the same there and it was never recovered. Thus, the essence of complaint of the complainant is that the applicants and co-accused, being police officials, have let off the miscreants, who had committed robbery from the complainant and his case was not registered.

8. The complainant was examined under Section 200 Cr.P.C., wherein he has supported the version of complaint. One Asharam and Vijay Bhati were examined under Section 202 Cr.P.C. and thereafter applicants and co-accused S.I. Govind Singh were summoned for offence under Sections 166, 167, 182, 201, 209, 218, 219, 420, 409, 120B, 468, 471, 506 IPC by impugned order dated 04.06.2022.

9. It appears that while passing the impugned order, learned Magistrate has not considered whether the ingredients of aforesaid offences are made out or not. Further, there is no evidence regarding forgery of any document so as to attract Section 468 IPC. The learned Magistrate has also not considered the ground whether provisions of Section 197 Cr.P.C. are attracted or not, Thus, impugned order is not in accordance with law.

10. However, as stated above, the allegations against the applicants and co-accused Govind Singh are quite serious in as much as regarding the alleged incident of robbery/dacoity against the complainant, the applicants / police officials have apprehended above referred four miscreants and the car and other articles, including cash, of complainant were recovered from them but despite that the said miscreants were let off. When complainant has moved an application for release of his car, a false report was submitted that the complainant himself has left it at the police station and it was never recovered. Here it would be relevant to mention that learned AGA has pointed out the report of brief inquiry conducted by the Circle Officer-IIIrd Ghaziabad, wherein vide report dated 28.10.2021, it was observed that in the said matter, police officials of Police Station, Indirapuram have committed gross negligence. In the similar way, it has been brought into the notice that in inquiry report dated 10.07.2022, the Superintendent of Police, Hapur has concluded that applicant no.1 Sanjeev Kumar Sharma, being In-charge of Police Station, Indirapuram has not complied the provisions of law by not registering the case of complainant and the Investigating Officer did not inspect the spot and that statement of complainant was not recorded. In view of these reports, prima facie it appears that the complaint of opposite party no.2 is not without any substance. The allegations raise a serious question about the conduct and working of applicants / police officials. In view of these facts and circumstances, it would be proper that a detailed investigation be conducted by a senior police officer in terms of provisions of Section 202(1) Cr.P.C. and report of same be submitted to the C.J.M. Ghaziabad and after that matter be considered by the learned C.J.M. on the point of summoning of applicants.

11. In view of aforesaid, the impugned summoning order 04.06.2022 is set aside and by invoking the provisions of Section 202(1) Cr.PC. it is directed that a detail investigation shall be conducted by a Police Officer not below the rank of S.P. / D.C.P. in the matter and the report of the same shall be submitted to the Court of Chief Judicial Magistrate, Ghaziabad. The Commissioner of Police, Ghaziabad is directed to nominate a Police Officer to conduct the aforesaid investigation under Section 202(1) Cr.P.C. in accordance with law. The investigation shall be completed within 60 days. After receipt of the report of investigation under Section 202(1) Cr.P.C., learned Chief Judicial Magistrate shall consider the matter on point of summoning and pass an order in accordance with law.

12. The application under Section 482 Cr.P.C. is disposed of in above terms. Order Date :- 6.1.2025 SP/-/RKM