Balram Bhagat @ Balram Prasad v. State of Bihar — 1988 DIGILAW 166 (PAT)

JUDGMENT B. Prasad, .1.- This is an application under section 482 of the Code of Criminal Procedure, 1973, (hereinafter caned the 'Code'). It is directed against the order dated 6. 12.1985 passed by Shri G. P. Singh, Judicial Magistrate, Bhagalpur, in Complaint Case No. 112/85 taking cognizance of the offence against the petitioner and ordering for the issue of summons against him. 2. In this petition it has been contended that opposite party no. 2 had filed the above mentioned complaint case in the court of the Chief Judicial Magistrate, Bhagalpur against the present petitioner (the officer-in-charge of Barari Police Station) and others. The allegations made out in the complaint petition were that the complainant (opposite party no. 2) had purchased 9 Kathas and 15 dhurs of land of Holding No. 17-A on which there was a cottage where the complainant was living along with two cows etc. and his belongings. It was further alleged that on 4.6.1985 at about 10 A. M. accused Kameshwar Jha of that case along with several others came there. S. I. of Police and the police constables also carne with them. The Police officer asked the wife of opposite party no. 2 to vacate the house in question since there was a proceeding under section 144 of the Code in respect of it. When the wife of opposite party no. 2 refused to vacate, it is alleged, that Daroga Jee had assaulted her childern with fists and slaps and had thrown them down on the ground. It was further alleged that thereafter accused Rameshwar Jha of that case had thrown away the house-hold belongings of opposite party no. 2 from the house and had further snatched away a purse containing Rs. 800/- in cash. It appears that before the learned Magistrate three witnesses were examined under section 202 of the Code. On the perusal of their statements and also the record of the case the learned Judicial Magistrate held that a prima facie case under sections 323, 447, 379 and 499 of the Indian Penal Code was made out against the accused of that case including the present petitioner. He, therefore, ordered for issue of summons to them. 3. In this petition the petitioner has taken a number of grounds for quashing the impugned order dated 5.12.1985 taking cognizance of the offence so far as it related to present petitioner. He, therefore, ordered for issue of summons to them. 3. In this petition the petitioner has taken a number of grounds for quashing the impugned order dated 5.12.1985 taking cognizance of the offence so far as it related to present petitioner. The first ground is that the petitioner happened to be a Government servant and, therefore, taking cognizance against him without prior sanction of the State Government or the competent authority was bad ill law. The second ground taken is that Naresh Jha one of the accused of the case brought by opposite party no. 2 had instituted Kotwali (Barari) P. S. Case No. 251/85 against opposite party no. 2 and others to the effect that on 4.6.1985 they had entered inside the cottage and asked him to leave the cottage immediately. It was further alleged that opposite party no. 2 and his associates had forcibly taken away the belongings of the informant, Naresh Jha. In this case, the police has already submitted charge-sheet after completing the investigations and, accordingly, the cognizance has been taken. It was further contended that on the basis of this first information report the petitioner who happened to be the officer-in-charge of Barari Police Station had immediately rushed to the place of ocourrance and had arrested the accused of that case who were committing high-handedness. This he had done in the discharge of his official duties as a Government servant and, therefore, no cognizance against him could have been taken. It was further contended that no prima facie case against the petitioner was made out inasmuch as in view of the institution of Barari P. S. Case No. 251/85 the petitioner had visited the cottage in question in the discharge of his official duty and no liability can be fastened on him for the same. On these grounds, it has been contended that this petition should be admitted. 4. A counter-affidavit has also been filed on behalf of opposite party no. 2. In this counter affidavit he has contended that the petitioner along with others had gone to his house and they bad assaulted his childern with fists and slaps and had thrown them down on the ground. It has further been stated that thereafter he took his wife to the police station and assaulted her. All these cannot be said to be in the discharge of his official duties. It has further been stated that thereafter he took his wife to the police station and assaulted her. All these cannot be said to be in the discharge of his official duties. Further more, it has been stated that the petitioner has got a false case in the name of Naresh Jha (Barari P. S. Case No. 251 dated 4.6.1985) instituted against the opposite party no. 2 only to save his skin inasmuch as this Naresh Jha on the very next day had made a statement on Oath (Aunexure-'1') to the effect that no such fardbeyan, which was basis of the above mentioned case, was made by him and he does not bear his signature. This speaks a volume against the contention of the petitioner. 5. The only point for decision before me is whether this application is fit to be admitted or not? 6. At the time of hearing the learned counsel appearing on behalf of the petitioner has submitted that no cognizance against the petitioner could have been taken in absence of any sanction from the competent authority. In this connection, he has drawn my attention to Section 197 of the Code which provides that no court shall take cognizance of any offence alleged to have been committed by any person who is or was a Judge or a Magistrate or a public servant not removable from his office save by or with the sanction of the Government except with the previous sanction of the Central Government or the State Government, as the case may be, under which that person is employed. Relying on this provision of law it has been contended that the cognizance is bad for want of sanction by the State Government inasmuch as the petitioner is a Government servant and, therefore, it should be quashed. 7. I, therefore, do not find any force in this contention of the learned advocate. In this connection, a reference may be made to the case of Nagraj vs. State of Mysore (A. I. R. 1964 S. C. 269) in which it was held that the Sub-Inspector of Ponce is Dot such a public servant who is not removable from his office save by or with the sanction of the State Government. It has further been held that the Inspector General of Ponce can dismiss a Sub Inspector who is a police official below the grade of Assistant Superintendent. It has further been held that the Inspector General of Ponce can dismiss a Sub Inspector who is a police official below the grade of Assistant Superintendent. Accordingly, it was held that no sanction of the State Government for the prosecution of Sub Inspector was necessary even if he had committed an offence while acting or purporting to act in the discharge of his official duty. 8. This matter was for consideration before this Court in the case of Narmadeshwar Sharma vs. Sarju Charan Poddar (1974 Cr. L. J. 959). Relying on the above mentioned decision of the Hon'ble Supreme Court, it has been held in this case that since the Sub Inspector and Assistant Sub-Inspector of Police are removable by Inspector General of Police and not by the State Government no sanction from the State Government to prosecute them would be necessary. In view of the authoritative pronouncement on this point as mentioned above it can safely be concluded that for the prosecu-of a Sub Inspector of Police no sanction from the State Government would be necessary even if it is shown that he was acting or purporting to act in discharge of his official duties. From the perusal of the first information report, it appears that the petitioner has been described as the Sub Inspector of Police. Even in this petition the petitioner has described himself as the Officer-in-charge of Barari Police Station as such it is clear that he is below rank of the Assistant Superintendent of Police and, therefore, these two decisions will fully apply in the case of the petitioner. 9. Further allegation against the petitioner is that he had entered in side the house of the informant along with police constables and others. He informed the wife of the complainant that there was a proceeding under section 144 of the Code pending with respect to the house and asked her to vacate the same. On her refusal to do so, it is alleged that the Sub Inspector of Police had assaulted the childern of the complainant with fists and slaps and had thrown them down on the ground. The person who were accompanying him released the cattle that were tied there and had thrown out the house-hold articles from the cottage. In this process they are said to have snatched away a purse from the wife of complainant containing Rs. 800/-. The person who were accompanying him released the cattle that were tied there and had thrown out the house-hold articles from the cottage. In this process they are said to have snatched away a purse from the wife of complainant containing Rs. 800/-. Thereafter it was further alleged that the wife of opposite party no. 2 was taken to the Police Station where she was assaulted and variously threatened and only to save his skin, the petitioner, thereafter, got a false case (Barari P. S. Case No. 251(6) 85) instituted against opposite party no. 2. 10. Since I have already held above that section 197 of the Code will not apply in the ease of the petitioner, the question whether these acts of the petitioner as alleged in the complaint petition amounted to acting or purporting to act in discharge of his official duties becomes of secondary importance. It is will known that commission of any such act amounting to an offence under the Indian Penal Code can never he an act which can he described to an act in discharge of the official duty of a public servant. The commission of an offence never be a part of an act in discharge of official duty or purporting to be in discharge of official duty by any public servant. Prima facie, looking at the complaint petition it cannot be said that there was a reasonable nexus between offences alleged and the duties enjoined upon the petitioner. If the allegations made in the complaint petition are taken at their face value on police officer was supposed to assault the childern of the complainant and to throw them on the ground. Whether these allegations are correct or not is a matter to be decided by the trial court. But for the purpose of sanction at present only the allegations in the complaint petition have to be looked into. Under these circumstances, it cannot be said that the petitioner had acted in discharge of his official duty or had purported to act in discharge of his official duty in assaulting the childern of the complainant and in throwing them on the ground. Taking the wife of opposite party no. 2 to the police station, assaulting and theatening her there cannot also be said to be done in discharge of the official duties. Hence, I do not find any force in this contention. 11. Taking the wife of opposite party no. 2 to the police station, assaulting and theatening her there cannot also be said to be done in discharge of the official duties. Hence, I do not find any force in this contention. 11. On behalf of the petitioner, it has further been submitted that Naresh Jha an accused in this complaint case had lodged first information report which has been instituted at Kotwali (Barari) P. S. Case No. 251/85 dated 4.6.1985. In this first information report various allegations have been made against opposite party no. 2, his wife and others. This first information report was lodged on 4.6.1985, From this first information report it would appear that the informant namely, accused Naresh Jha was in possession of the cottage in question from which he was evicted and household belongings thrown out by opposite party no. 2 and others. On this ground it has been stated that the occurrence did not take place in any manner as alleged and, therefore, also the cognizance taken against the petitioner should be quashed. 12. I do not find any force in this contention also. In this connection a reference may be made to the case of R. P. Kapoor vs. State of Punjab (A. I. R. 1960 S. C. 866). This was a case under section 561 A of the Old Code corresponding to section 482 of the present Code. It has been held in this case that ordinarily criminal proceedings instituted against an accused must be tried under the provisions of Code and the High Court would be reluctant to interfere with such proceedings at an interlocutory stage. This also shows that at this stage no interference is warranted. Secondly, it would not be out of place to mention here that on the very next day of the lodging the first information report accused Naresh Jha had denied to have given any such fardbeyan and to have put his signature on it. 13. On behalf of the petitioner reliance has been placed in the case of Pancham Lal vs. Dadan Singh (1979 Cr. L. J. 1018). In this case the dispute was between two parties over harvesting of the standing crop. The accused, who happened to be a public servant, was deputed at the spot to control the situation. 13. On behalf of the petitioner reliance has been placed in the case of Pancham Lal vs. Dadan Singh (1979 Cr. L. J. 1018). In this case the dispute was between two parties over harvesting of the standing crop. The accused, who happened to be a public servant, was deputed at the spot to control the situation. It was alleged that while he was discharing his duties he had abused the leader of one group. It was held that the accused was acting in discharge of his duties while he uttered abuses. On the basis of decision it has been contended on behalf of the petitioner that even if the allegation of throwing the childern on the ground and assaulting them is accepted as correct any such action can be treated in discharge of his official duties. In the said case the petitioner was Sub-divisional Officer at Arrah. He was deputed on the spot to control the two warranting comps. He was primarily concerned with the maintenance of the law and order. It was further alleged that both the camps were threatened each other with assault. It was under these circumstances that this Court held that uttering of abuses by the petitioner was protected and can be treated to be in discharge of his official duties. 14. The facts of the present case are however, quite different. Here the allegation against the petitioner is that he had intered inside the house of the complainant without any lawful cause. It is further alleged that he assaulted the childern of the complainant and had thrown them down on ground. It was also further alleged that he has forcibly taken the wife of the complainant to the police station where she was also assaulted and threatened. The circumstances of this case are, therefore, quite different from the above mentioned case and, there fore, this decision is of no help to this petitioner. 15. So far as scope of an enquiry under section 202 of the Code and the order for issuing of the processes under section 204 of the Code arc concerned in the case of Nagawwa vs. Veeranna (A. I. R. 1976 S. C. 1947) the law has been laid down that orders passed in these two sections can be set aside in revision. It has been held that the scope of enquiry under section 202 of the Code is extremely limited only to the ascertainment of the truth or fa1sehood of the allegations made before the court and also on the materials placed before it by the complainant. It has further held that the scope of this enquiry is for the limited purpose of the finding out whether a prima facie case for issue of the processes is made out or not. Further it was held that in an enquiry under section 202 of the Code the accused has no locus standi and cannot be heard. Further more, it was held that for deciding whether or not the processes against the accused should be issued, the court has to look only to the complaint petition and the statements of, the witnesses recorded under section 202 of the Code without at all adverting to the defence that the accused may have. In view of this authoritative pronouncement by the Hon'ble Supreme Court, at this stage, the effect of the first information report lodged against opposite party no. 2 by accused Naresh Jha is not to be taken into account. In any view of the matter, the said case is still pending and, therefore, it cannot be treated to be an impediment in taking cognizance of the offence against the petitioner. 16. Under these circumstances, I think that the petitioner has not been able to make out a case for admission of this petition filed under section 482 of the Code. It is, accordingly, rejected.