This criminal miscellaneous application was filed by a police official challenging an order passed by the Sessions Court under Section 22-A of the Cr.P.C. The applicant, while performing his official duties, had arrested an individual for possession of cocaine and initiated legal proceedings. In response, the accused's brother filed an application seeking the registration of a kidnapping case against the applicant. The Sessions Court directed the S.H.O. to record the statement and register a case if a cognizable offence was made out. The High Court observed that the provisions of Section 22-A, Cr.P.C. are frequently misused to harass officials performing their lawful duties. It held that courts must not pass such orders in a mechanical manner and must determine if the applicant has approached the court with clean hands or malice. Finding the lower court's order to be tainted with malice and passed without due application of mind, the High Court set aside the impugned order, while allowing the complainant the liberty to file a direct complaint if so advised.
1. ' AMIR HANI MUSLIM, J.---The grievance of the applicant is that he has intercepted one Rafique Ahmed and recovered cocaine of 120 grams and he was challaned. Subsequent thereto the accused brother namely Bashir Ahmed has approached Sessions Court with an application under section 22-A, Cr.P.C. Seeking registration of the case against the applicant inter alia on the ground that his brother Rafique Ahmed has been kidnapped and the Court without verifying the facts has ordered that the S.H.O. Concerned would record statement of Bashir Ahmed and if cognizable offence is made out, the case shall be registered against the present applicant. Such order is impugned in these proceedings inter alia on the ground that the complainant has grievance against the S.H.O. Who is discharging his duties and had arrested Rafique Ahmed and had challaned him and the matter is pending adjudication before the Court of competent jurisdiction.
2. Mr. Ghulam Sarwar Korai, learned counsel for complainant states that the police is bound to register the case without verifying the facts and the S.H.O. Should have registered the case in terms of the directions of the Sessions Court.
3. I have heard the learned counsel and perused the record. The provisions of section 22-A, Cr.P.C.
4. Have been misused in a number of cases. The wisdom of legislature was not that any person who in discharging of duties takes an action against the ,ccused would be subjected to harassment by invoking provision of section 22-A, Cr.P.C. The Courts in mechanical manner should not allow application under sections 22-A & B and should apply its mind as to whether the applicant has approached the Court with clean hands or it is tainted with malice. Unless such practice is discharged, it would have far reaching effect on the police officials who in discharge of duties take IA actions against them. The law has to be interpreted in a manner that its protection extends to every one. I am therefore, of the opinion that order of the Sessions Judge was passed in mechanical manner and the applicant approaching the Sessions Judge. As per the record reflects that it was tainted with malice. I do not want to comment upon the conduct of the complainant, however it will be open to complainant to file direct complaint against the applicant it so advised and observations made in these proceedings will not come in the way of the complainant. The proposed complaint it filed will be decided on its own merits. This impugned order for the aforesaid reasons is set aside and Criminal Miscellaneous Application is allowed in the above terms.