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2000 DIGILAW 326 (PAT)

Hem Chandra v. State Of Bihar

2000-02-29

ANIL KUMAR SINHA

body2000
Judgment ANIL KUMAR SINHA, J. 1. The present revision application has been preferred against the order dated 25.2.1999 passed by Shri R.S. Sinha, Judicial Magistrate, Ranchi, in Complaint Case No. 260 of 1992, whereby he rejected the petition filed by the complainant wherein it was prayed that before hearing on the point of sanction under Section 197 (1) of the Code of Criminal Procedure (hereinafter referred to as the Code) as per the order passed by the Hon ble Supreme Court, the appearance of all the accused is necessary. As such, the complainant prayed that process may be issued against the absentee-accused who have either not appeared at all or failed to appear in the Court as per the direction given by the learned Sessions Judge while granting bail to the five accused-persons. It was also contended that the prosecution may be granted two weeks time to file rejoinder to the petition filed on behalf of the defence only after the appearance of the two absentee-accused. 2. It appears that the petitioner filed a complaint in the Court of the learned Chief Judicial Magistrate, Ranchi, on 9.9.1992, which was transferred for enquiry under Section 192 of the Code to the Court of Shri J.S.P. Choudhary, Judicial Magistrate, 1st Class, Ranchi, against which the opposite parties filed an application before this Court vide Cri. Misc. 5057 of 1992 (R) for quashing the entire criminal proceedings, which was dismissed on 19.8.1993 (Annexure-2). The opposite parties No. 2 to 8 filed S.L.P. (Cri) No. 279 of 1994 before the Hon ble Supreme Court, which was disposed of by the order dated 21.9.1995 and the enquiry proceeded. The learned Magistrate found in course of enquiry that a prima facie, case under Sections 147, 448, 342, 427, 506, 380 and 384 of the Indian Penal Code has been made out against the opposite party Nos. 2 to 8 and, so, by order dated 20.9.1996 issued summons against them. The opposite parties challenged the said order dated 20.9.1996 passed by the learned Magistrate which was dismissed by this Court in Cri. Misc. No. 5937 of 1996 (R) and in Cri. Misc. No. 6639 of 1996 (R) (Annexure-5). The opposite parties, thereafter, preferred S.L.P. (Cri.) Nos. 3908 and 3909 of 1997, before the Hon ble Supreme Court against the order passed by this Court in Cri. Misc. No. 5937 of 1994 (R) and in Cri. Misc. Misc. No. 5937 of 1996 (R) and in Cri. Misc. No. 6639 of 1996 (R) (Annexure-5). The opposite parties, thereafter, preferred S.L.P. (Cri.) Nos. 3908 and 3909 of 1997, before the Hon ble Supreme Court against the order passed by this Court in Cri. Misc. No. 5937 of 1994 (R) and in Cri. Misc. No. 6639 of 1996 (R), which was disposed of by the apex Court after setting aside the order passed by this Court with the following observations: "We set aside the order of the High Court and direct the trying Magistrate to decide the question whether at the time, the appellants allegedly committed the offences for which they are sought to be prosecuted, were acting or purporting to act in the discharge of their official duty and for that matter, whether sanction was necessary before he (the Magistrate) could take cognizance upon the complaint of the respondent No. _. In deciding the above question, the trying Magistrate will permit the appellants to produce relevant documentary materials which can be legally looked into without any formal proof, as pointed out in the case of Suresh Kumar Bhikamchand Jain." 3. The said orders of the apex Court was received by the learned Magistrate on 31.10.1998 and the learned Magistrate directed the office to inform the lawyers of the accused-persons for producing relevant documentary materials on the date fixed. Accordingly, documents were filed on behalf of the defence on 30.11.1998 which were kept on record. On 30.1.1999, the complainant appeared and filed a petition to adjourn the hearing on the petition dated 30.11.1998 filed by the defence on the ground that he has to file a reply to the aforesaid petition. The learned Magistrate, however, heard the counsel in part on the petition dated 30.11.1998 and with the consent of both the parties, the case was adjourned to 6.2.1999 for further hearing. On 6.2.1999 the complainant filed a rejoinder to the petition dated 30.11.1998 on which the learned Court below heard the matter on 20.2.1999 and fixed the matter for orders on 25.2.1999. On 25.2.1999 the learned Magistrate rejected the petition filed on behalf of the complainant and directed him to come prepared on 16.3.1999 for hearing on the petition filed by the defence along with the documentary filed therewith. On 25.2.1999 the learned Magistrate rejected the petition filed on behalf of the complainant and directed him to come prepared on 16.3.1999 for hearing on the petition filed by the defence along with the documentary filed therewith. In his petition dated 6.2.1999, the complainant had raised objection that all the accused should first of all appear before the Court and then only the matter can be heard on the petition dated 30.11.1998 filed by the defence, which was rejected. 4. The admitted position is that out of 7 accused 5 of them appeared and were granted bail in the case and they were being represented by their lawyer. 5. The learned counsel appearing on behalf of the petitioner submitted that in the case of Suresh Kumar Bhikam-chand Jain v. Pandey Ajay Bhushan and others, reported in 1998 (1) East Cr C 461 (SC): (1998) 1 SC 205, the Hon ble Supreme Court observed as hereunder : "The question for consideration is when a Magistrate on the basis of a complaint issued process for appearance of the accused on being satisfied that there is sufficient ground for proceeding and the accused appears before the Magistrate and takes the plea that the offence alleged to have been committed by him was in the discharge of his official duty and further he was not removable from his office save by or with the sanction of the Government and consequently the Court has no power to take cognizance except with the previous sanction of the Government as required under sub-section (1) of Section 197 of the Code of Criminal Procedure then the Magistrate would be required to decide the plea on the materials on record then existing or the accused can produce relevant material to establish the necessary ingredients for invoking Section 197 (1) of the Code." 6. The learned counsel appearing for the petitioner argued before me that in the case before the apex Court, the accused had appeared and then took the plea of sanction under Section 197 (1) of the Code but in the instant case, all the accused persons have not appeared, inasmuch, as only 5 out of 7 accused appeared before the Court and two accused have not appeared at all. As such, making capital of the use of word "accused appears" before the Magistrate, the learned counsel submitted that the learned Magistrate cannot entertain the plea of sanction under Section 197 (1) of the Code unless all the accused appear and the learned Magistrate was not justified in rejecting the petition filed by the complainant in that regard. 7. I find that in the case of Suresh Kumar Bhikamchand Jain, the Hon ble Supreme Court observed that: "The legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself.lt is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) of the Code is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case, there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings." 8. It is longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings." 8. It is manifest, therefore, that the applicability of Section 197 (1) of the Code is a matter which touches the jurisdiction of the Court itself, which can be raised at any stage of the proceedings and in Suresh Kumar Bhikamchand Jains case, it has been held by the apex Court that there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197(1) of the Code has any applicability in the case in hands and if any accused files such petition before the Court stating that Section 197(1) of the Code is attracted in the case, he merely assists the Court to rectify its error where the jurisdiction has been exercised which the Court does not possess. In my humble view, such plea can be taken by any one of the accused out of several accused and it is not at all necessary that all the accused must join hands in pointing out to the Court that Section 197 (1) is attracted in the case. An objection regarding the bar to take cognizance in the case by the Magistrate can be raised by even those accused-persons, who have appeared before the Court and if such a plea is taken by those accused who have appeared the Court is bound to examine as to whether Section 197(1) of the Code is attracted in the case or not and the Court cannot refuse or postpone to entertain such an application or to examine the question regarding applicability of Section 197 (1) of the Code till all the accused appears in the Court because the question relates to the jurisdiction of the Court in taking cognizance. The expression "accused appears" which has been used in the Suresh Kumar Bhikamchand Jains case (supra) does not mean that all the accused must appear in the case before the objection under Section 197 (1) of the Code can be entertained by the Court. The expression "accused appears" which has been used in the Suresh Kumar Bhikamchand Jains case (supra) does not mean that all the accused must appear in the case before the objection under Section 197 (1) of the Code can be entertained by the Court. The cognizance is taken in the case and it is possible that several persons might be arrayed in the category of accused and every accused has got an individual"right under the law to raise the plea regarding the illegality committed by the Court in taking cognizance in the case. The individual right of an accused in raising the objection on the point of taking cognizance in illegal manner is certainly not dependent on other factors like non-appearance of other accused or matters like that. In the instant case, the admitted position is chat out of seven accused five of them have already appeared and have been granted bail and they being represented through their lawyer and two accused who are Opposite Party Nos. 2 and 3 have not appeared, so far, and on behalf of the accused Opposite Party Nos. 2 to 8 in this application, the defence counsel filed the petition along with necessary documents to pass necessary orders in accordance with law in the light of the observations made by the Hon ble Supreme Court in S.L.P. (Cri.) Nos. 3908 and 3909 of 1997, on which the complainant raised objection that the Court should not pass any order on the petition dated 30.11.1998 filed on behalf of the defence until and unless the two accused surrender in Court and requested the Court to issue process against them. In my humble view, such an objection was unnecessary and had no merit in it, which was righty rejected by the learned Court below who was of the view that such petition has been deliberately filed to cause delay in disposal of the petition filed by the defence in the light of the direction given by the Hon ble Supreme Court. 9. Apart from that, it would appear that the present revision application has been filed against an order which is interlocutory in nature against which the instant revision application is not maintainable. 10. 9. Apart from that, it would appear that the present revision application has been filed against an order which is interlocutory in nature against which the instant revision application is not maintainable. 10. Before concluding, I may say that the complainant had no locus standi to insist the Court for the appearance of the accused-persons before hearing the petition filed on behalf of the defence under Section 197(1) of the Code as it was a matter between the accused and the Court, since the plea of sanction under Section 197(1) of the Code was taken by the accused-persons against the order of taking cognizance passed by the Court and in such a situation, any interference by the complainant is unwarranted and uncalled for and in my view, the learned Court rightly proceeded to decide the matter in the light of the direction given by the Hon ble Supreme Court. 11. Having considered all the materials available on record, I do not find any merit in this revision application for the reasons stated above. Accordingly, this revision application is dismissed. Revision dismissed.