S. M. RAQUIB v. SUBHAS KUMAR SINHA — 1976 DIGILAW 45 (PAT)

JUDGMENT : G.P. Sinha, J. This application on behalf of S.M. Raquib, who was at the relevant time posted as the officer incharge of Ghosi police station within the district of Gaya, is for quashing of the criminal proceeding pending against him in the court below in case no. C 148 of 1971; T.R. no. 656 of 1973. This case appears to have arisen against him in the following circumstances. 2. On 19.6.1971 the opposite party, Subhas Kumar Sinha, held a complaint petition before the Sub-divisional Magistrate, Jehanabad making these allegations. On 30.5.1971 polling of the Gram Panchayat election at the booth was going on. In that, the Presiding Officer's peon, Rajnandan Singh, was noticed helping a particular candidate by resorting to illegal acts. This aroused the feeling of the villagers there who protested to it. Upon that, this Sub-Inspector accused, who was in the camp of the aforesaid candidate being helped illegally by the peon; appeared on the scene and started abusing the villagers. He also went to the village with armed constables. When his such actions were objected to by the complainant's cousin, he was arrested by the Sub-Inspector along with another man. Hearing this, the complainant went to the Sub-Inspector and wanted to know from him the reason which had led him to arrest his cousin. At that, he (Sub-Inspector) assaulted him and made him sit there. This was followed in respect of another villager also. Thereafter, all these arrested persons were taken to the Dak Bungalow where the Sub-Inspector demanded a sum of Rs. 1000/- from each of them and threatened them with dire consequences if they did not pay. Later, he received Rs. 575/- as illegal gratification from the arrested Dwarika Mahto and released him. He also released another being an ill boy aged 15 years. The complainant as also his cousin were then taken to the police station and confined in hajat. During night the complainant was brutally assaulted on chest and other parts of his body due to which he got ill and had to be treated in the Johanabad Jail Hospital. After his release, Dwarika Mahto filed a petition against this Sub-Inspector before the Block Development Officer, Ghost At that, Sub-inspector arrested him again when he was proceeding to Jehanabad to file a complaint against him and assaulted him. After his release, Dwarika Mahto filed a petition against this Sub-Inspector before the Block Development Officer, Ghost At that, Sub-inspector arrested him again when he was proceeding to Jehanabad to file a complaint against him and assaulted him. The Sub-Inspector thereafter manoeuvered a false report from the election Presiding Officer against the complainant and others alleging highhanded acts on their part to disturb the poll. In the complain he requested the Sub-divisional Magistrate to send for his injuries report from the jail doctor. The reason for the delay in filing the complaint was stated to be the complainant's detention in jail without bail from where he was released on 17.6.1971 on being bailed out by the Sessions Judge and, thereafter, this complaint. 3. After receiving the above complaint, the Sub-divisional Magistrate examined the complainant on 22.6.1971 and referred the matter for enquiry to the Magistrate Mr. H.B. Singh. Several dates passed, but he did not submit the report. On 23.11.1971, the enquiry was recalled from him and entrusted to another Magistrate. With him also this enquiry remained pending quite long. On three dates, i.e. 25.4.1972, 6.6.1972 and 16.5.1972 the case was adjourned awaiting receipt of the enquiry report and the accused did not appear in court. On the next date, i.e. 24.5.1972 the Magistrate Mr. Md. Slauddin, who is said to be acting for the Sub-divisional Magistrate on that day, summarily dismissed the complaint for the absence of the complainant on the previous three dates. On 21.6.1972 on behalf of the complainant a petition was filed before the Sub-divisional Magistrate to recall that dismissal on the ground that it could not be legally made as the enquiry report was still awaited and the case on that day was not fixed for hearing. After having been addressed by the complainant's counsel the regular Sub-divisional Magistrate in his ORDER :dated 29.6.1972 cancelled that dismissal and restored that complaint and sent the enquiry back to the aforesaid enquiry magistrate. During his enquiry, as many as 12 witnesses were examined by him and he submitted his report dated 12.8.1972 saying that a prima facie case under Sections 323/342 etc., of the Indian Penal Code had been made out against this accused and he should be summoned to take trial. On 26.8.1972, after perusal of that enquiry report and agreeing with it, the magistrate Mr. On 26.8.1972, after perusal of that enquiry report and agreeing with it, the magistrate Mr. A.K. Sinha took cognizance in the case under Sections 323, 342 and 500, Indian Penal Code against this accused and transferred it to another magistrate for disposal fixing 15.9.1972 as the next date. In the transferee court, on 15.9.1972, the complainant furnished his list of witnesses and requested the court to summon the accused through the Inspector-General of Police, Bihar. The magistrate granted this prayer and he was summoned through the Inspector-General of Police to appear in his court on 25.10.1972. Awaiting the report of that summons on him the case stood adjourned for some dates. In the meanwhile on 10.5.1973 the accused filed this application and on its admission, obtained stay of further proceedings in the case before the Magistrate. 4. Mr. Amar Singh appearing for the petitioner wants this criminal proceeding to be struck down on the following grounds. First, the petitioner in this matter had arrested the complainant during discharge of his official duties, and, as such, no prosecution can lie against him for any such act except with the previous sanction of the State Government as enjoined by Section 132 of the Code of Criminal Procedure, 1898, and in the absence of any such sanction, the prosecution stands vitiated ab initio. Secondly, the Magistrate, Mr. A.K. Sinha, who had taken the impugned cognizance dated 26.8.1972, was not empowered to take that cognizance and for wants of his such jurisdiction, the cognizance so taken is void. Thirdly, when this complaint was summarily dismissed on 24.5.1972, the court did not possess any power to restore it again after canceling that dismissal. The complainant's only remedy to revive the complaint was by means of a revision before the higher court and not by moving the magistrate to do it because after that dismissal that court had become functus officio. 5. To support the first contention, Mr. Singh has referred to the election Presiding Officer's report dated 30.5.1971 (annexure 1 to this application), which he had submitted to this officer-in-charge of Ghosi police station (Petitioner) at the spot. In this report, it is stated that when he (Presiding officer) was holding this poll, this complainant along with about 30 more carrying lethal weapons and forming an unlawful assembly came to the booth and demanded from him signed ballot papers to cast votes. In this report, it is stated that when he (Presiding officer) was holding this poll, this complainant along with about 30 more carrying lethal weapons and forming an unlawful assembly came to the booth and demanded from him signed ballot papers to cast votes. He, however, refused to hand over ballot papers to them on which they started brandishing their weapons and when the peon Rajnandan Singh asked them not to do so, he was assaulted by fists and slaps. Some among them also tried to remove the Presiding Officer's cycle, but on resistance they could not do so. They wanted to further assault the peon who was made to run away from there for his life chased by some of them, but in the meantime the police party headed by the officer in charge reached there by which the peon's life was saved. On these allegations the Presiding Officer in this report requested the officer in charge to take legal action in the matter. This report, as per the endorsement of the officer in charge at its bottom, was in his hand at 1.30 p.m. that day and on that basis he instituted a case in the matter under Sections 147, 379 and 323, Indian Penal Code and started investigating into it. According to counsel, from this report it would be manifest that at the sight of that unlawful assembly indulging in those illegal acts, he had asked those persons to disperse and refrain from those acts and on their failure to disperse in pursuance to his such command, he had effected their arrest and they were taken to the police station for further action. On these facts, according to him, the Officer in charge must be deemed to have been acting under chapter IX of the Code so that his prosecution for any such Act in the absence of the necessary sanction of the State Government must be deemed to be barred under Section 132 (Supra). At the present moment, on the basis of this Presiding Officer's report it is difficult to conclude that there had been any such ORDER :of dispersal by the officer in charge which they failed to obey and then they had been arrested by him and confined, which he was empowered to do in the circumstances under this Chapter. At the present moment, on the basis of this Presiding Officer's report it is difficult to conclude that there had been any such ORDER :of dispersal by the officer in charge which they failed to obey and then they had been arrested by him and confined, which he was empowered to do in the circumstances under this Chapter. It is another matter that during the trial he is able to produce materials before the court to lead to any such conclusion. At present, however, no such decision or even inference is possible on the materials as they obtain on the record. Evidently, therefore, I would not hold with Mr. Singh that on this score alone the proceeding as taken out against his client should be struck down because this defect is fatal and goes to the very jurisdiction of the Magistrate to take action on the complaint without such sanction. 6. In this connection I may usefully refer to the observations of their Lordships of the Supreme court in (1) Nagraj V. State of Mysore (A.I.R. 1964 S.C. 269) in somewhat similar circumstances. They observed that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under Section 127 and 128 of the Code and in so doing committed some offence complained of, the court will not entertain the complaint unless it appears that the State Government had sanctioned the prosecution of that police officer; if the allegations in the complaint do not indicate such facts, the court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint; it must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person; the occasion for the court to consider whether the complaint could be filed without the sanction of the Govt. would be when at any later stage of the proceedings it appears to the court that the action of the police officer complained of appears to come within the provisions of Sections 127 and 128 of the Code this can be either when the accused appears before the court and makes such a suggestion or when evidence or circumstances prima facie show it; the mere suggestion of the accused will not however, be sufficient for the court to hold that sanction was necessary: the court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under Section 127 and 128 of the Code. 7. As already noticed, the case at hand is still at the cognizance stage and the accused is to appear for which summons has already been issued against him. The stage of evidence is yet to reach. In such circumstances, the question of quashing this cognizance, may the proceeding as a whole, at this stage on the ground of lack of Government sanction under Section 132 (supra) hardly arises. The determination of this question may arise from stage to stage and its necessity may reveal itself during the trial of the facts brought before the court. As and when such a situation arises, it will necessarily be open to consider this point and take a decision on merit as warranted in law. At the instant stage, as I have already said, such a necessity is not felt on the materials available on the record. For these reasons, this contention of the petitioner appears to be groundless at present and must fail. 8. As regards the lack of jurisdiction of Mr. A.K. Sinha to take cognizance in the case and to transfer it as done by him in his impugned ORDER :dated 26.8.1972, this cannot also prevail to make that cognizance void. In this connection on behalf of the accused in the present petition it has been averred that Mr. A.K. Sinha was neither the Sub-divisional Magistrate nor successor-in-office of the regular sub-divisional magistrate on the relevant date, i.e. 26.8.1972 nor he was vested with power to make such cognizance and transfer the case. In this connection on behalf of the accused in the present petition it has been averred that Mr. A.K. Sinha was neither the Sub-divisional Magistrate nor successor-in-office of the regular sub-divisional magistrate on the relevant date, i.e. 26.8.1972 nor he was vested with power to make such cognizance and transfer the case. Accordingly, his ORDER :of cognizance and transfer must be quashed as being without jurisdiction. Against this, the statement of the opposite party in his counter-affidavit is that Mr. A.K. Sinha had not actually taken cognizance of this offence as the cognizance in the case had already been taken on 22.8.1971 on which date the sub-divisional magistrate had examined the complainant and referred the case for judicial enquiry and that on 26.8.1972 he (Mr. A.K. Sinha) having been authorised to perform the duties of the sub-divisional magistrate was fully competent to issue process to the accused and transfer the case to another Magistrate for disposal. This means that the petitioner's averment in this' behalf in the instant application has been controverted by the other side. There has however been no further action of the petitioner after this counter-affidavit to allege that the statement so made in the counter-affidavit is incorrect. Though this counter-affidavit was sworn as far back as 7.8.1973 controverting the petitioner's allegation in this matter, there was never any request from the petitioner's side in this Court to call for a report from the appropriate local authority, to show lack of any authorisation to Mr. A.K. Sinha to make his impugned ORDER :dated 26.8.1972 being illegal and without jurisdiction. Section 17(1) of the Code empowered the District Magistrate to make rules under his special ORDER :s consistent with the Code as to the distribution of business among the Magistrate at any station within his jurisdiction. It is urged for the opposite party that there had been such authorisation to Mr. A.K. Sinha to sit in court and act far the Sub-divisional Magistrate in respect of such works in his absence on any day and it was in pursuance of that authorisation that he (Mr. A.K. Sinha) had passed this ORDER :in the absence of the sub-divisional magistrate. A.K. Sinha to sit in court and act far the Sub-divisional Magistrate in respect of such works in his absence on any day and it was in pursuance of that authorisation that he (Mr. A.K. Sinha) had passed this ORDER :in the absence of the sub-divisional magistrate. According to learned counsel for the opposite party, it was open to the petitioner, if he was so sure of it to request the court to call for a report to show the District Magistrate had not so empowered him and that would have clarified the whole matter. Moreover, if the petitioner was not willing to do so, he could have well refuted his (opposite party's) averment made to the contrary in the counter-affidavit in which event he (opposite party) would have requested the court to do so. But in absence of any action by the petitioner on this point notwithstanding his counter-affidavit, the opposite party thought that he was not serious about this allegation and now it is too late for him to try to take advantage of his own omission in this matter. This contention of the opposite party, in the light of all these facts, cannot be brushed aside as unsubstantial. It may incidentally be mentioned that under Illustration (e) of Section 114 of the Evidence Act, the Court may presume that judicial and official acts have been regularly performed. So, unless theme is anything substantial to show that this ORDER :of Mr. A.K. Sinha was made in an irregular manner without having any authority to do so, prima facie it would be deemed to have been regularly done. 9. No special significance need be attached to the use of expression 'cognizance' in the impugned ORDER :dated 26-8-1972, which for all purposes, as observed in the Bench decision of this court in (2) Umashankar Vidyarthi alias Umesh Singh and another V. the State of Bihar and others (1975 Bihar Bar Council Journal 531), is to be treated to be an ORDER :/under Section 204 of the Code. The cognizance in the case has to be deemed as having been taken as envisaged under Section 200 of the Code when the sub-divisional magistrate on the complaint filed decided to examine the complainant and referred the matter for judicial enquiry under Section 202 postponing issue of process against the accused. Mr. Sinha, saying of having taken cognizance under Section 323 etc. Mr. Sinha, saying of having taken cognizance under Section 323 etc. of the Indian Penal Code in his impugned ORDER :can well be interpreted as his decision to put the accused on trial expressed in that language which in magisterial courts has been conventionally in use since long to express themselves in this behalf. The impugned ORDER :dated 26-8-1972 does not contain anything showing of process against the accused, but, as referred to above, there has been such an ORDER :by the transferee magistrate and summons in that court has already been sent to the accused for service through his superior officer. That the transferee court possesses such a power in a complaint case, as of the present nature, is clearly indicated in this court's Division Bench decision in (3) Sudama Singh V. Kavindra Narain Singh (1973 P.L.J.R. 35). So, on this account also no infirmity can be read in this impugned ORDER :. 10. Coming to the third ground regarding the illegal restoration of the case after it had been dismissed earlier, I am inclined to think that this cannot be a valid ground for the quashing of the impugned proceeding. As already shown, when the case was still at the enquiry stage under Section 202, the acting Sub-divisional Magistrate, Mr. Md. Slauddin, in his ORDER :24.5.1972 dismissed the complaint for the reason that the complainant had been absent on the preceding three dates. This ORDER :in hindi reads: vfHk;ksxh xr 3 frfFk;ksa ls vuqifLFkr gSA [kkjht fd;k x;kA There is nothing in it to show that the Magistrate had acquitted the accused. Under Section 247 of the Code the Magistrate could acquit the accused for non-appearance of the complainant, if on the day appointed for the appearance of the accused or on any day subsequent thereto to which the hearing may be adjourned the complainant did not appeal. The stage of hearing in this case had not till then reached. It was still at the preliminary enquiry stage and the report of the enquiry officer, to whom the enquiry had been entrusted, was still to come. So, the question of the case having been fixed for the appearance of the accused or for the hearing did not arise at that time. In fact, as the record shows, on these three preceding dates the case had to be adjourned due to non-receipt of the enquiry report. So, the question of the case having been fixed for the appearance of the accused or for the hearing did not arise at that time. In fact, as the record shows, on these three preceding dates the case had to be adjourned due to non-receipt of the enquiry report. Prior to those three dates, on four successive dates, the complainant had always been present. It was probably in the background of those futile attendance in court, as the magistrate was adjourning the case for want of enquiry report, that he did not think it necessary to appear on those subsequent dates. In those circumstances, it was hardly open to the magistrate to dismiss the complaint on 24.5.1972 as done for his absence, specially when his attendance in court on that day had neither been ORDER :ed nor mandatorily required under law. "Learned counsel for the petitioner has not been able to point out to any provisions of law under which it was open to the magistrate to have dismissed the complaint in that summary way on 24.5.1972. 11. In the said situation, when on behalf of the complainant, court's attention was drawn to that irregular dismissal of the complaint in his petition dated 21.6.1972, I do not think, there was any violation of law on the part of that court to have recalled that dismissal, patently wrong, and to have restored the complaint for further action. That dismissal ORDER :could not be treated to be a JUDGMENT : under Section 369 of the Code so as to debar the Magistrate from altering or reviewing it after having passed it. That could at best be treated as his inter locutory ORDER :made under some mistaken impression of law. Being obviously a mistaken ORDER :, not in any way being a JUDGMENT :, I think; it could be modified by that court on its attention being drawn to it under its inherent power for the ends of justice. Such a power for the purpose of doing the right after undoing the wrong that court could be taken to possess. In support of such a principle a reference is made to the decision of this court in (4) Subhlal Gope and another V. the State of Bihar (1970 P.L.J.R. 444) where a recall of the previous discharge ORDER :by the magistrate and proceeding with the commitment enquiry was upheld. In support of such a principle a reference is made to the decision of this court in (4) Subhlal Gope and another V. the State of Bihar (1970 P.L.J.R. 444) where a recall of the previous discharge ORDER :by the magistrate and proceeding with the commitment enquiry was upheld. For these reasons, this contention of the petitioner as a ground for quashing of the proceedings would not seem to have much substance and is, accordingly, overruled. 12. On the above discussions, my conclusion is that there is no merit in this application which must, therefore, fail. It is, accordingly, dismissed. Application dismissed.