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2000 DIGILAW 1217 (PAT)

Harhar Choubey, Kailash Ram v. State of Bihar

2000-10-31

S.K.CHATTOPADHYAYA

body2000
ORDER As common question of law is involved in both the applications they have been heard together and with Consent of the parties they are being disposed of by this common order. 2. The only question is to be decided as to whether the petitioners being government servant are protected under the provisions of Section 197 of the Code of Criminal Procedure and as such taking cognizance of offence and issuance of process against them by the learned Magistrate without any prior sanction is vitiated in law. 3. The petitioner in Cr. W.J.C. No. 216 of 2000 is the Deputy Superintendent of Police and was posted as such in Dalsingsarai within the district of Samastipur. The petitioner in Cr. W.J.C. No. 238 of 2000 on the other hand was posted as officer-in- charge, Musari Gharari within the same district. 4. One Kumar Vishwanath filed a complaint before the learned Chief Judicial Magistrate, Samastipur on 6.6.1998 alleging high handedness of these two officers and prayed for taking cognizance of offence under sections 323, 452, 342, 500, 504, 387 and 120B of the Penal Code. The learned Magistrate by his order dated 26.9.1998 took cognizance of the offence and issued process against the petitioners. Both the petitioners moved in Revision before the Additional Sessions Judge impugning the order taking cognizance but without success. In the present applications the petitioners have challenged both the aforesaid orders. 5. Mr. Pandey, learned counsel appearing for the petitioners contended that when the act said to have been committed by the petitioners has some nexus to their official duty they are entitled for protection under Section 197 of the Code notwithstanding the fact that they have exceeded in discharge of their official duty. In support of his contention the learned, counsel has relied on the decisions reported in (1997) 10 SCC 972 (State through the C.B.I. Vs. B.L. Verma and another), (1998)1 SCC 205 (Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan and Others) and 1999 (2) B.L.J. 499 (Upendra Singh Vs. The State of Bihar and Others). 6. On the other hand, learned government Advocate appearing on behalf of the State of Bihar, submits that for applying the provisions of Section' 197 of the Code two tests are required to be fulfilled. Pandey Ajay Bhushan and Others) and 1999 (2) B.L.J. 499 (Upendra Singh Vs. The State of Bihar and Others). 6. On the other hand, learned government Advocate appearing on behalf of the State of Bihar, submits that for applying the provisions of Section' 197 of the Code two tests are required to be fulfilled. Firstly, whether the accused has proved that it is in discharge of his official duty and secondly that he has not exceeded his jurisdiction in acting in' such a manner. 7. In order to appreciate the argument of the learned counsel first of all the allegations made in the complaint petition are to be looked into. 8. According to the complainant, after passing B.Sc. (Hons) with Maths from A.N. College, Patna he was residing with his uncle Bishnu Kumar Verma, an employee of Bihar State Electricity Board and was preparing for his post graduate course. On the date of occurrence he had come to his native place Sarairanjan from Patna' to attend the marriage ceremony of the son of his neighbour Ramdeo Singh. In the night the accused surrounded the house of the complainant and called for him. At that time his father and uncle Bishnu Kumar Verma were present in the house. As soon as the complainant came out of his house accused no.1 asked his name and on his such disclosure all the aforesaid three accused along with other accused persons started assaulting him with slaps and used unparliamentarily languages. He was ordered to be arrested and brought to the Sarairanjan police station. When father of the complainant wanted to know about the warrant of arrest and the cause of such arrest the accused persons also misbehaved with his father and started assaulting him with slaps and fists. The also used abusive language to his father. The complainant was laid down on the ground and accused nos.1 and 2 tied his legs with rope. Accused no.3 started assaulting on his leg with lathi whereas accused nos. 1 and 2 assaulted him with shoes. They brought him to the police station. On such incident the father of the complainant and his family members went to the police station and wanted to know the where about of the complainant but without any result. They did not get any information about the complainant either at Musari Gharai or Samastipur police station. They brought him to the police station. On such incident the father of the complainant and his family members went to the police station and wanted to know the where about of the complainant but without any result. They did not get any information about the complainant either at Musari Gharai or Samastipur police station. Thus the father of the complainant, Ram Kumar Verma filed a complaint being Misc. Case No. 827/98 against those accused persons. The father also represented to the police authorities as well as sub-divisional officer, Samastipur. The complainant has annexed the carbon copy of those protest applications with his complaint petition. It is further alleged that when the complaint was brought to Sarairanjan police station accused no.4 and other accused started abusing the complainant. Accused no. 4 reiterated that the complainant was responsible for his transfer by filing a public petition and, as such, he should be sent to jail after proper beating. The complainant was kept in Musari Gharari police station for some time and thereafter was lodged in Ujiarpur police station. The complaint petition continues that at 8 P.M. in front of hundreds of people in the said police station accused no.3 again started assaulting the complainant by lathi. He was tied up. Accused no. 3 asked the officer-in-charge of Ujiarpur police station to implicate the complainant in a false case but the officer-in-charge did not accede to his request. Then the complainant was kept in jail custody on 4.6.1998 for whole night as per the order of accused no.3. When accused no.3 came to know about the complaint petition filed by his father on 4.6.1998 at about 10 A.M. he came to Ujiarpur police station and asked the complainant to execute a bond of Rs. 5,000/- and on point of revolver forced him to put his signature on two blank papers. Thereafter the complainant was freed with d threat that if any case is filed then his whole family would be put in trouble and dozen of false cases would be lodged against him and he would be perished in jail after his arrest. After being released from the police station the complainant came to Sadar hospital, Samastipur and got his injury examined by the doctor and received treatment. Injury report was also annexed with the complaint petition. After being released from the police station the complainant came to Sadar hospital, Samastipur and got his injury examined by the doctor and received treatment. Injury report was also annexed with the complaint petition. With these allegations the complainant prayed before the learned Magistrate to take necessary action in accordance with law. 9. The learned Magistrate examined the complainant and his witnesses on solemn affirmation and after perusing the documents filed in support of the allegations took cognizance of offence under Sections 323, 452, 342, 500, 504, 306 and 120B of the Penal Code. The learned Magistrate issued summons to the accused persons. 10. In the complaint petition, petitioner Harihar Choubey has been added as accused no.3 and petitioner Kailash Ram as accused no.2. Both the petitioners moved in Revision before the Sessions Judge and the same plea of absence of sanction was taken. After hearing the Revisional court was satisfied that the act of the petitioners has no nexus with their official duty and accordingly, dismissed the Revision application. 11. It is well settled that because an accused is a government servant and is clothed with duties to enforce jaw and order, he cannot claim sanction under Section 197 of the Code as a matter of course. The acts alleged against him must prima facie appear to be in the purported exercise of official duties and functions. In the case of Matajog Dubey Vs. H.C. Shari reported in AIR 1956 SC 44 , their Lordships have indicated that it was necessary for the court to find out whether a sanction was necessary or not at the time of taking cognizance of the complaint. The accused, where sanction is necessary, is not without remedy even if cognizance is taken and process is issued because the question of sanction may still be taken into consideration at different stages of trial on the basis of further materials revealed at such stages. According to the Supreme Court, what is necessary is that the offence must be in respect of an act done or purported to be done in discharge of official duty. 12. In the instant case, the allegations against the petitioners is that they along with other accused arrested the complainant without any warrant of arrest and disclosing the offence in which the complainant was involved. He was mercilessly beaten up and was subjected to abusive language. 12. In the instant case, the allegations against the petitioners is that they along with other accused arrested the complainant without any warrant of arrest and disclosing the offence in which the complainant was involved. He was mercilessly beaten up and was subjected to abusive language. When his father wanted to know about cause of the arrest of his son he was also not spared. The complainant was brought to the police station and kept in custody without disclosing the reasons for his arrest. Petitioner, Harihar Choubey, had beaten the complainant in public. Even accused no.4 was of the view that the complainant should be put behind the bar after proper beating because on his public petition the Respondent no.4 was transferred to other place. When the father and other family members of the complainant could not get any information about his arrested son, the father also lodged a complaint before the learned Magistrate giving rise to Misc. Case no. 827/98. It is alleged that when the petitioner, Harihar Choubey, came to know about the filing of this complaint petition. he became furious and ultimately forced the complainant to make his signature on two blank papers and was released on executing a bond of Rs.5,000/-. 13. In this background it is to be seen as to whether the very act of the petitioners was in discharge of their official duty. As held by the Supreme Court in the case of Suresh Kumar Bhikamchand Jain (Supra) that the question of sanction can be considered at any stage of the proceedings and the petitioners, in my opinion, are not debarred from producing the relevant documentary materials before the Magistrate which can be admitted into evidence without formal proof, for the limited consideration of the Court whether the necessary ingredients to attract Section 197 have been established or not. According to their Lordships, the question of applicability of Section 197 of the Code and consequential ouster of jurisdiction of the court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In my view, when the Magistrate on the basis of the complaint has issued process for appearance of the petitioners on being satisfied that there is sufficient ground for proceeding, the petitioners instead of rushing to this Court for quashing the order taking cognizance on the plea aforesaid should have raised this plea on appearance before the learned Magistrate itself by producing relevant documentary material evidence to satisfy the learned Magistrate that in order to save his own skin the complainant has implicated them in a false case. The High Court in exercising its jurisdiction under Article 227 of the Constitution cannot, in my view scrutinise all these materials for coming to the conclusion that, in the facts and circumstances, sanction was necessary before taking cognizance. The facts in the case of State through C.B.I. Vs. B.L. Verma and another in my view are quite distinguishable from the facts of the instant case. 14. In the result. I find no merit in these writ applications which are, accordingly dismissed.