Prosecuting corrupt police officer
A
(Querist) 25 December 2012
This query is : Resolved
How do I prosecute the investigating police officer for various serious offences like forgery, etc, in my case, for which I have evidence?
If I file a private complaint, it will be referred to the jurisdictional police who will close the matter or not act upon it. My complaints to senior officers have fallen on deaf ears multiple times.
Nadeem Qureshi
(Expert) 25 December 2012
you should filed a criminal complaint against police officer before the court and court pass an order to investigate the matter through senior officer.
Feel free to call
Arun Kumar Bhagat
(Expert) 25 December 2012
Question: If I file a private complaint, it will be referred to the jurisdictional police who will close the matter or not act upon it. My complaints to senior officers have fallen on deaf ears multiple times.
Ans: It shall not be referred to the Police. Magistrate will examine you and your witnesses if any and then may issue summons or may dismiss the complaint.
Yo may take upthe matter with Human Rights commission or alternatively file writ petition in High Court for Police inaction.
Sudhir Kumar, Advocate
(Expert) 25 December 2012
First you have to seek sanction of prosecution from the authority competent to dismiss him from service if the offence is done in course of official duty and only then cognizance will be taken by the court.ead section 197 of CrPC
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty no court shall take cognizance of such offence except with the previous sanction-
(a) In the case of it person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
1[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of subsection (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, whenever they may be serving, and thereupon the provisions of that sub-section will apply as if lot the expression "Central Government" occurring therein, the expression "State Government were substituted.
2[(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued trader clause (I) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is here by declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the court before which the trial is to be held.
1. Added by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)
2. Ins. by Act 43 of 1991, sec. 2 (w.e.f. 2-5-1991)
STATE AMENDMENTS
Assam:
For sub-section (3) of section 197, the following subsection shall be submitted, namely.
"(3) The State Government may, by notification, direct that the provisions of' subsection (2) shall apply.
(a) To such class or category of the members of' the Forces charged with the maintenance of' public order, or
(b) To such class or category of other public servants [not being persons to whom the provisions of sub-section (1) or subsection (2) apply] charged with the maintenance of public order.
As may be specified in the notification wherever they may be serving, and thereupon the provisions of sub-section (2) shall apply as if' for the expression Central Government occurring therein, the expression State Government were substituted."
[Vide President's Act 3 of 1980. (w.e.f. 5-6-1980)].
Maharashtra:
After section 197, the following section shall be inserted namely.
"197A. Prosecution of commissioner of Receiver appointed by civil court.- When any person who is a Commissioner or Receiver appointed by a court under the provisions of the Code of Civil Procedure, 1908, is accused of any offence alleged to have committed by him while acting or purporting to act in the discharge of his functions as Commissioner or Receiver, no court shall take cognizance of such offence except with the previous sanction of the court, which appointed such person as Commissioner or Receiver, as the case may, be."
[Vide Maharashtra act 60 of 1981, sec. 2 (w.e.f 5-10-1981)]
In case you feel that official position has been misused in order to confer undue benefit upon anyone then you can invoke Prevention of Corruption Act [s/13(1)(d)] and the case can be referred to Anti-Corruption Bureau/Lokayukta/CBI as per discretion of the court .
Read section 13 of Prevention of Corruption Act
1) A public servant is said to commit the offence of criminal misconduct, -
(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or
(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to he concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any, person whom he knows to be interests in or related to the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) If he, -
(i) By corrupt or illegal means, obtains for himself or for any other person any valuable thing or Pecuniary advantage; or
(ii) By abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) While holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) If he or any person on his behalf, is in possession or has, at any time during the Period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation. -For the purposes of this section "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance, With the provisions of any law, rules or orders for the time being applicable to public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
Arun Kumar Bhagat
(Expert) 27 December 2012
Committing offence of Forgery does not come under the perview of Official duty and hence no sanction for prosecution is required.
