Felix Tete v. State Of Bihar — 1996 DIGILAW 614 (PAT)

Judgment P. K. Sarin, J. 1. By this application under Sec.482 of the Code of criminal Procedure the petitioners seek quashing of the order dated 15-7-1995 passed by the Chief Judicial Magistrate, samastipur, and the order dated 29-7-1995 passed by the Judicial Magistrate, 1st class, Samastipur, in Complaint R. Case No.439/96 (TR. No.879/96)whereby the learned Chief Judicial magistrate, had taken cognizance of the offences under Sec.295 (A), 298, 323, 342 and 504 of the Indian Penal code and after postponing the process of summons transferred the case to a judicial Magistrate, 1st Class, Samastipur, under Sec.192 of the Code of criminal Procedure (hereinafter to be referred to as the Code) and the learned Judicial Magistrate, after holding enquiry under Sec.202 of the code issued process against the petitioners. 2. A copy of the complaint is at annexure-1 of the petition which shows that the opposite party No.2 filed complaint alleging that on 9-7-95 at about 5.15 P. M. he was returning by train from aligarh to Samastipur. It is alleged that the petitioners who belonged to Railway protection Force armed with rifles came in the Compartment in which the passengers and opposite party No.2 werte sitting and made enquiries from when disclosed his name and he told that he is mohammedon (sic) and then petitioner no.3 started abusing him and tried to get down from the train and opposite party No.2 protested. The petitioner no.1 pushed him and other petitioners, dragged him from the compartment and took his three attacbies and Rs.50 and railway ticket from his pocket and took him assaulting in another compartment and when another passengers protested the petitioner No.3 abused the opposite party No.2 in the name of his religion and, thus, hurt his religious feeling. It is further alleged that the petitioners took opposite party No.2 to Barauni and retained in the Security Office and also abused opposite party No.2. It was further alleged that on 10-7-1995 Opposite party No.2 was produced before the railway Magistrate, Barauni, on false charges and the learned railway magistrate after taking statement of opposite party No.2 found the charges to be baseless and dismissed the case and order for return of the seizure articles. A complaint was filed alleging that the petitioners unnecessary assaulted and kept the opposite party No.2 in illegal custody and hurt his religious feelings by abusing against this religion. 3. A complaint was filed alleging that the petitioners unnecessary assaulted and kept the opposite party No.2 in illegal custody and hurt his religious feelings by abusing against this religion. 3. The learned Chief Judicial magistrate on receiving complaint took cognizance of the offence and postponing the process of summons, he retransferred the case to the other judicial Magistrate under Sec.192 of the cr. P. C. for enquiry and disposal. That order of the Chief Judicial Magistrate is made impugned by the petitioner on the ground that the learned Chief Judicial magistrate could not have transferred the case under Sec.192 of the Code to the Judicial Magistrate for enquiry and disposal. Then after taking cognizance the Chief Judicial Magistrate had postponed the process of summon. The contention on behalf of the petitioners in this regard is that the learned Chief Judicial Magistrate himself ought to have held enquiry under section 202 of the Code and ought to have passed order under Sections 203 or 204 of the Code and he should not have transferred the case for enquiry under section 202 of the Code to the Judicial Magistrate. 4. After receiving the case on transfer the learned Judicial Magistrate held enquiry under. Sec.202 of the code. Witnesses were produced on behalf of opposite party No.2 under section 202 of the Code and by order dated 29-7-95 he ordered for issuance of summons against the petitioners to face the trial, as he found a prima facie case to be made out to proceed with the trial. The contention on behalf of the petitioners is that no offence under Sections under which they have been ordered to face trial is made out and the cognizance could not have been taken without prior sanction under Sec.197 of the Code. 5. As regards the contention against the order passed by learned chief Judicial Magistrate transferring the case under Sec.192 of the Code of a Judicial Magistrate for enquiry and disposal, the petitioners have placed reliance on a decision or this Court. In case of Smt. Pawan Kumari V/s. The State of Bihar, reported in 1995 (2) BLJ 566 where it has been held that where the chief Judicial Magistrate - and had also -- upon enquiry by recording statement complainant, it was incumbent upon him to conclude enquiry himself and it could not have passed over the case for enquiry - Magistrate. It was held that the enquiry held by the trans-fer. ee Magistrate, therefore, cannot be said to be valid and issuance of process on strength thereof is not sustainable in the eye of law. In the said case learned counsel for the petitioners had relied upon a decision of a Division Bank of this Court reported in I. L. R. volume-LVII, 903 (Jiran Tiwari V/s. State of Bihar and others ). In the said case of Jitan tiwari the facts were that the learned sub-divisional Judicial Magistrate who had taken cognizance without transferring the case under Sec.192 of the code directed an enquiry under Section 202 of the Code be made by a Judicial magistrate. The Judicial Magistrate accordingly held enquiry under Section 202 of the Code and submitted the enquiry report to the Sub-divisional judicial Magistrate and the case was taken up by Sub-divisional Judicial Magistrate and thereafter be issued process against the accused persons. The question arose for consideration in the said case was whether the Magistrate taking cognizance can direct enquiry under section 202 of the Code to be made by another Judicial Magistrate and on the basis of such enquiry made by another magistrate whether he could have issued process. In this factual background the legal proposition was considered in the said case and it was observed that under Sec.202 of the Code any magistrate on receipt of a complaint may enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. In the said case the question of jurisdiction of the magistrate to entertain the complaint after having been transferred under section 192 of the Code has not in issue. Therefore, law laid down in the said case has to be read in the context of the facts of that case where the sub-divisional Judicial Magistrate had not transferred the case under Sec.192, of the Code to another Magistrate but had simple got the enquiry done under section 202 of the Code by another magistrate who submitted enquiry report to the Magistrate who had passed that order of making enquiry and that magistrate taking into consideration the enquiry done by another Magistrate. . . . . . order for issuance of process. . . . . . order for issuance of process. The facts of the prosecution case are different than who facts of that case. In the present case the case had been transferred under Sec.202 of the Code by the Chief Judicial Magistrate and the transferee court had proceeded to deal with the complaint and had held enquiry under Sec.202 of the Code and considering the evidence on record has passed the order for issuance of process. Therefore, the petitioners do not get any assistance from the case as relied upon by them. Moreover, Supreme court in the case of Anil Saron V/s. State of Bihar and another reported in 1996 (1) PLJR (SC) 5 has held thai even if the order of the transfer is illegal, the transferee court does not become incompetent to deal with the complaint and the power to take cognizance is also vested in the transferee Magistrate and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the chief Judicial Magistrate. It was further held that the transferee Magistrate would be exercising his power of taking cognizance even in such a case, because of his having received a complaint constituting the offence. It would not be. material, for this purpose, as to how he came to receive the complaint - directly or on transfer from the Chief Judicial magistrate. In view of the law laid down by the Apex Court the contention of the learned Counsel for the petitioners that the transferee Magistrate had no jurisdiction to take cognizance or to hold enquiry under Sec.202 of the Code cannot be accepted. 6. As regards the second contention the learned Counsel for the petitioners has placed reliance or a decision of Gujarat High Court in the case of Karnal Singh V/s. State of Gujarat reported in 1988 Cri. L. J.100 In the said case the facts were that the Sales Tax officers on directions by higher authorities organised anti-social activities and checked trucks. The complainant in the said case that he was abused and slapped and RIO papers with regard to the truck were taken away. It was held in the said Case that the act of the officers was directly concerned or reasonably connected with the official duties as to be inseparable from them. The complainant in the said case that he was abused and slapped and RIO papers with regard to the truck were taken away. It was held in the said Case that the act of the officers was directly concerned or reasonably connected with the official duties as to be inseparable from them. It was further held that if the act complained of is directly connected with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so irrespective of whether it was, in fact, a proper discharge of his duties because that would really be a matter of defence on the merits, which would have to be investigated at the trial and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. 7. It has been contended on behalf of the learned Counsel for the petitioners that in the present case the petitioners who were performing their official duties are said to have forcibly disembarked opposite party No.2 from the train and detained him and produced him next day before the railway Magistrate on some charges and the railway Magistrate ultimately discharged opposite party No.2. It is contended that the allegations of pushing down opposite party No.2 by abusing and keeping him in custody are in purported performance of the official duties by the petitioners. Therefore, sanction for prosecution is necessary. 8. As against the said contention the learned Counsel for the opposite party No.2 has contended that the action of the petitioners in hurting religious feeling of the opposite party no.2 cannot be said to be connected in any way with the performance of the official duty. It is further contended that the petitioners have no right to assault or abuse opposite party No.2 when he was holding valid ticket. Therefore the petitioners cannot claim that the said acts were performed by them in the discharge of the official duties. No sanction under Sec.197 of the Code would be necessary in such a case. 9. It is further contended that the petitioners have no right to assault or abuse opposite party No.2 when he was holding valid ticket. Therefore the petitioners cannot claim that the said acts were performed by them in the discharge of the official duties. No sanction under Sec.197 of the Code would be necessary in such a case. 9. The allegations in the complaint show that the petitioners were on duty when they are said to have abused and assaulted opposite party No.2 after making some enquiry and that opposite party No.2 was detained in custody and produced on the next day before the railway Magistrate and the Railway magistrate after hearing the opposite party No.2 discharged him and returned the seized articles to the opposite party No.2. The act of abusing, assaulting and detaining arc connected with the purported discharge of the official duties by the petitioners, whether such action was proper or not is a different matter, but, such actions are connected with the purported discharge of the official duties. In my opinion, sanction under Sec.197 of the Code is necessary and the learned Magistrate ought to have considered this aspect of the case before taking cognizance and issuance of process against the petitioner. 10. It has been contended on behalf of the opposite party No.2 that offences punishable under Sec.295 (A) or 298 of the Indian Penal Code cannot be said to be connected with the purported discharge of their official duties, hence, sanction for those offence was not necessary. 11. As regards the offence punishable under Sec.295 (A) of the Indian penal Code previous sanction of the government is necessary. Sec.196 of the Code lays down that no court shall take cognizance of any offence punishable under Sec.295 (A) (and some other sections) without previous sanction of the Central Government or the state Government. Therefore before a court can take cognizance for the offence punishable under Sec.295 (A), i. P. C. , previous sanction of the concerned government ought to have been there. If such sanction is not there, taking of cognizance for the offence under Sec.295 (A) I. P. C. would be illegal and without jurisdiction. 12. As regards the offence punishable under Sec.298 of the Indian penal Code, no sanction under Section 196 of the Code is required. 13. If such sanction is not there, taking of cognizance for the offence under Sec.295 (A) I. P. C. would be illegal and without jurisdiction. 12. As regards the offence punishable under Sec.298 of the Indian penal Code, no sanction under Section 196 of the Code is required. 13. But the abuses causing hurt to the religious feelings are said to be during the course of the incident in which the petitioners had abused, assaulted and detained opposite party No.2. This part although improper appears to be connected with the acts during the purported discharge of the official duties by the petitioners. It may also be pointed out that the opposite party No.2 was produced before the Railway magistrate on the next date and when the Railway Magistrate examined the opposite party No.2 he did not make any grievance regarding any abuse against his religion by the petitioners. A copy of his examination by the Railway magistrate is at Annexure-2 filed with the supplementary affidavit. The present complaint was filed on 14-7-95 after four days of the discharge of the opposite party No.2 by the Railway magistrate. In his statement opposite party No.2 simply stated that the R. RF. man had detained him on suspicion. No other allegation regarding abuse or snatching any article or use of force was alleged in the statement of the opposite party No.2. 14. It is needless to point out that the personnels of the Railway protection Force have been brought in the category of Armed Forces Unit, as would be evident from section 3 of the railway Protection Force Act, 1957. Therefore provisions of Sec.197 of the Code which are applicable to Armed force of the Union Govt. would also apply in respect of the petitioners who are members of the Railway Protection Force. 15. Considering the entire facts and circumstances of the case no illegality is found in the order dated 15-7-95 passed by the learned Chief Judicial magistrate. However, the order dated 29-7- 95 passed by learned Magistrate samastipur, taking cognizance and issuing process against the petitioners appears to be not sustainable in law for want of previous sanction of the concerned Authority. The learned magistrate did not consider this aspect of the case. The said impugned order passed by the learned Judicial magistrate is liable to be quashed and, the same is hereby quashed. The learned magistrate did not consider this aspect of the case. The said impugned order passed by the learned Judicial magistrate is liable to be quashed and, the same is hereby quashed. However, it is made clear that, in case previous sanction of the Government is obtained a fresh complaint petition may be filed by the opposite party No.2, if so desired. Order Accordingly.