ORDER
1. A complaint was filed by one Shri M. Saleem Siddiqui, Advocate, against the petitioner in the Court of Shri G. P. Thareja, Addl. Chief Metropolitan Magistrate, Delhi, under Ss. 161/323/504/341/34, I.P.C. On 18-7-85, the learned Magistrate recorded an order summoning the petitioner. On 7-8-85 after the petitioner and the other accused appeared before the learned Magistrate, an application was submitted to the learned Magistrate to the effect that the offence had been committed by them in the discharge of their official duties during the course of their employment in Delhi Traffic Police and that in view of the provision of S. 197, Cr.P.C. no cognizance of the offence could have been taken against them. The learned Magistrate has declined to accept the plea. These two orders are as under :-
“18-7-85 : Present complainant.
Heard the complainant. I have gone through the complaint and the testimony of two witnesses that the accused demanded a sum of Rs. 100/- as a compounding fee and Rs. 100/- as gratification and also detained M. Saleem Siddique Advocate for 15 minutes without any just or sufficient cause by the accused. Police Officer has no right to demand composition money unless a violator submits for composition. The accused has wrongfully confined the complainant for the purpose of extorting from the complainant the composition money and thus prima facie committed an offence under S. 347 read with S. 34, I.P.C. from the deposition of the complainant. I further find that the accused attempted to obtain from the complainant gratification of Rs. 100/- and thus prima facie committed an offence under S. 161/34, I.P.C.
It is further deposed by the complainant that the accused pushed the complainant. A police office in the discharge of his traffic duties has no right to pull or push any person. Thus force was used by the accused against the complainant which prima facie attracts S. 352, I.P.C. the complainant has detailed the abuse. I find such an abuse is an insult which may provoke breach of peace. The police officer has no authority to insult any one by abuses and filthy language. The prosecutions under S. 504/34, IPC are also attracted. Therefore, I find prima facie case u/s. 347/504/161/352 and 34, I.P.C. is made out against the accused persons.”
“7-8-85 Both the accused present in person. Accused have come with an application that the offence has been committed by them in the discharge of their duties and during the course of their employment in Delhi Police (Traffic). In view of S. 197, Cr.P.C. read with notification dated 7-4-80 and S. 140 of the D.P. Act cognizance cannot be taken against accused, therefore, the accused be discharged.
I have heard the learned counsel Shri S. Grewal Advocate. The allegations against accused in the complaint for which cognizance has been taken are that the accused demanded a sum of Rs. 100/- as illegal gratification otherwise complainant will not be allowed to go. The accused further abused the complainant and uttered words like “TERI SARI VAKALAT TERI GAAND MEIN GHUSER DOONGA”. The accused further pushed the complainant. In the colour of police authority, there is no duty of the accused either to abuse any person or to push any person in their traffic duties or to demand illegal gratification. The act of the accused does not fall within their authority or in the colour of their office. Application of the accused on this ground is not maintainable. Secondly, u/s. 140 of the D.P. Act if the complaint is preferred within three months then it is not barred. Therefore, provisions of S. 140 cannot be attracted. Parliament u/s. 140 D.P. Act has given powers to the Court to take cognizance against police officers for their act even if done wrongfully in the colour of their office. Notification copy of which has been filed by the accused is to the effect that police officials of all ranks of Delhi police charged with the maintenance of public order are extended the benefit of S. 197, Cr.P.C. This notification read with 197, Cr.P.C. is at variance with the provisions of S. 140 of D.P. Act. Any notification which is issued by the Delhi Admn. against the will of Parliament cannot be given any significance. Will of the Parliament contained in S. 140 of the D.P. Act shall prevail. The application of accused is thus not maintainable and it cannot be allowed. It is rejected without hearing other party.
Accused have been summoned u/s. 161/347 IPC which are warrant case. Therefore, notice is not to be issued to the accused, and instead before charge evidence is to be recorded. Case is fixed for pre-charge evidence on 21-8-85.
Sd/-
ACMM”
2. It is against these two orders that the aggrieved petitioner has come in revision with the request that the order dt. 18-7-85 by which the petition was summoned be quashed.
3. The brief facts on which the complaint is based is that on 11-7-85 at 9 a.m. while the complainant was going on his two wheeler scooter bearing No. DIS-4606 along with his clerk Mr. M. Usman Gandhi, the accused No. 2, Sada Nand, Head Constable in uniform stopped him at the crossing of Paharganj and asked him as to why he was driving the scooter without helmet. He was told that he will have to pay Rs. 100/- as fine for compounding the offence and another Rs. 100/- as illegal gratification. The complainant allegedly asked the petitioner to challan him and allow him to go but he was asked first to pay a fine of Rs. 100/- and another. Rs. 100/- as gratification or else he would not be allowed to go and collect the scooter. At this stage respondent 2 allegedly disclosed that he was an Advocate and thereupon the petitioner prepared a challan against him. Even thereafter allegedly the complainant was not allowed to go and was illegally detained for 15 minutes. According to the complainant, many people assembled there and he was able to escape but his two-wheeler scooter was detained. He has further complained that the accused persons misbehaved and manhandled him.
4. The case set up by the petitioner is that under the provisions of Motor Vehicles Act and Rules respondent 2 was challenged and in fact he deposited the compounding fees of Rs. 50/- against challan No. C-123677 and compounding receipt No. 8314/42 dt. 11-7-85. It is denied that any illegal gratification was demanded. All other averments raised in the complaint have been denied.
5. Mr. Luthra appearing for the petitioner has raised a legal contention that the taking of cognizance of the complaint by the learned Magistrate and summoning the accused persons in the case is without jurisdiction inasmuch as there is no sanction to prosecution of the accused persons under the provision of S. 197, Cr.P.C. and S. 6 of the Prevention of Corruption Act. He has therefore, contended that the order under revision is not only highly illegal but is without jurisdiction.
6. Admittedly, the petitioner along with Sada Nand, another accused, were in uniform and were on traffic duty and admittedly the complainant was asked to stop as he had contravened the provisions of Motor Vehicles Act and the rules there under by not driving his scooter with a helmet on his head and he was offered to compound the offence. The receipt, photostat copy of which is on record, clearly goes to show that compounding fee of Rs. 50/- has been paid by the complainant. These are the facts which are undisputed and would clearly go to show that the petitioner and the other accused in the case were discharging their official duties. It may be that in the discharge of their duties they have made certain excesses but it cannot be denied that there is a reasonable connection between the alleged act and the discharge of official duty by the petitioner and his co-accused. In Matajog Dobey v. H. C. Bhari, the test laid down by the Supreme Court to find out as to whether an officer who is being prosecuted was discharging his official duty or the act was done or purported to have been done in the discharge of his duty is to the following effect :-
“There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.”
7. Looking at the totality of the facts of the present case it can reasonably be said that the act for which the accused persons including the petitioner are being prosecuted in the complaint was done in the discharge of their official functioning. Under S. 87 of the Motor Vehicles Act a duty is cast upon the driver to bring the vehicle to stop and remain stationary so long as may reasonably be necessary when he is required to do so by an officer in a uniform. It would appear that he was asked to stop for contravention of the rule under the Motor Vehicles Act by these police officers and thereafter he was challaned and after paying compounding fee he left the place and then chose to file a complaint dt. 12-7-85 in which the summoning order was passed. In Balbir Singh v. D. N. Kadian, the Supreme Court has clearly held that in respect of members of all ranks for Delhi Police Force previous sanction of Lt. Governor is imperative provided the offence alleged to have been committed by such members of the Delhi Police Force has been committed while acting or purporting to act in discharge of their official duty.
8. I have already indicated that in view of the totality of the facts of the present case, the offending act, as alleged against the petitioner and his co-accused, was done by them in discharge of their official functions. In that view of the matter, prosecution of the petitioner and his co-accused under S. 347/504/352, I.P.C. without the previous sanction of the Lt. Governor is unwarranted and the cognizance taken by the Magistrate is illegal and without jurisdiction.
9. Apart from what has been stated above, the order summoning the accused indicates that cognizance has also been taken against the petitioner and his co-accused under S. 161 I.P.C. This could not have been done without the previous sanction which was necessary for prosecution as envisaged under S. 6 of the Prevention of Corruption Act, 1947. This sanction clearly lays down that no Court shall take cognizance of an offence punishable under S. 161 or S. 164 or S. 165 I.P.C. and also indicates the authority who is competent to accord sanction. In that view of the matter also, the learned Magistrate obviously has acted without jurisdiction in summoning the accused and taking the cognizance.
10. In that view of the matter, it is apparent that the order summoning the accused to stand trial before the Magistrate is illegal. This revision petition, therefore, is allowed and the order dt. 18-7-85 by which the learned Magistrate has summoned the petitioner and his co-accused is quashed.
11. Revision allowed.