The High Court of Bombay at Goa has set aside a lower court order and dismissed a complaint against two police personnel in an alleged assault case.
In February 2013, the petitioners (the first petitioner, a police sub-inspector, Dhanu Bogati, while the second petitioner, Gajanan Madar a constable) were deployed with the special tourist police unit. On February 10, 2013, Gajanan Madar and others reported as usual for duty to the Verna police station, within the territorial jurisdiction of which Utorda is situated.
The petitioners stated that they were patrolling the beach and at about 5.15 pm, the second respondent, Thomas Fernandes who is the owner of a shack, came to the site, under the influence of alcohol and attempted to destroy a lifeguard hut.
Gajanan Madar and the other police personnel objected to the same and the shack owner is alleged to have behaved rudely and in an arrogant manner. It was also said that the shack owner physically assaulted Gajanan Madar and other constables in which they sustained injuries.
The incident was reported to the Verna police station on the basis of which an FIR was registered against the shack owner. After investigation, a chargesheet was filed.
On March 9, 2013, the shack owner filed a complaint with the Verna police station and some other authorities alleging that some police personnel including the PSI had assaulted him with a stick and kicks, and that he suffered injuries to his intestine. The shack owner also made similar allegations against Devendra Sawant, a police constable and Gajanan Madar.
The JMFC, Margao was approached with a complaint under Section 156 (3) of the code, which was registered as Criminal Miscellaneous Application and the magistrate directed the registration of an FIR and investigation. The petitioners unsuccessfully challenged the order before the session’s court.
The counsel for the petitioners, Ryan Menezes submitted that the magistrate could not have directed registration of the FIR in the absence of a sanction, as required under Section 197 of the code (sanction from competent authority is pre-requisite and mandatory for prosecution of a public servant in criminal cases).
The High Court single judge, C V Bhadang observed that in the present case, it is apparent that the petitioners were patrolling at the beach and it was during the course of their patrolling that the incident was alleged to have happened wherein the shack owner was allegedly attempting to destroy the lifeguard hut and when Gajanan Madar and others intervened, the incident is alleged to have happened. In such circumstances, it is clear that the alleged act has a clear nexus with the duty of the petitioners and in the absence of the sanction under Section 197 of the Code, the Magistrate could not have referred the complaint for investigation under Section 156 (3) of the Code. In the result, the petition is allowed. The impugned order is hereby set aside. The complaint under Section 156(3) of CrPC is hereby dismissed.