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2000 DIGILAW 354 (PAT)

Jagdish Prasad Singh v. State Of Bihar

2000-03-03

DEOKI NANDAN PRASAD

body2000
Judgment DEOKI NANDAN PRASAD, J. 1. This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the entire Criminal proceeding initiated as against the petitioner including the order, dated 22.6.1998 whereby and whereunder cognizance for an offence under Sections 452/323/379 of the Indian Penal Code has been taken in Complaint Case No. 50/97. 2. The short facts giving rise to this application is that a complaint was filed by the opposite-party No. 2 alleging therein that on 23.6.1997, the petitioner Nos. 1 and 2 came within the factory premises of the complainant/opposite-party No. 2 to check the factory premises in search of child labour through they had prior knowledge that no such child labour was employed in the said factory. However, the complainant allowed the petitioner to mspect the factory premises. During the inspection of the factory, the petitioner had got one young boy Tarak Naiyak, aged about 20 years, who had come to the factory to deliver Tiffin-box to his father. The petitioner had got him intentionally to declare him child labour and thereafter, prepared a false report and asked the complainant/opposite-party No. 2 to put his signature on the report. It is further alleged that the petitioner No. 1 told him that the complainant has to pay a sum of Rs. 20,000/-as fine and the matter may be dropped, if a sum of Rs. 10,000/- is paid to him as bribe but when the complainant and his son refused to oblige the accused No. 1/petitioner No. 1, both the petitioner Nos. 1 and 2 became furious and left the place of occurrence. It is further alleged that on the same day, i.e., 23.6.1997 at about 2.30 p.m. when the complainant along with his sons and other family members were taking rest in his residential premises situated within the factory premises, all the three accused persons/petitioners with constables 5/6 came and entered forcibly in the residential premises of the petitioner and started abusing the complainant. On protest, the petitioner No. 3 took riffle from one of the constables and assaulted the complainants son, namely, Rakesh Kumar Lodha with the butt of riffle whereas one of the constables took away wrist watch. The witnesses reached to the spot and thereafter, the petitioners left the place giving threat to the complainant. Accordingly, the complaint case was filed. On protest, the petitioner No. 3 took riffle from one of the constables and assaulted the complainants son, namely, Rakesh Kumar Lodha with the butt of riffle whereas one of the constables took away wrist watch. The witnesses reached to the spot and thereafter, the petitioners left the place giving threat to the complainant. Accordingly, the complaint case was filed. Inquiry under Section 202, Cr PC was conducted and thereafter, the learned Magistrate took cognizance for the offences under Sections 452/323/379 of the Indian Penal Code by order, dated 22.6.1998. 3. The opposite-party No. 2 also filed counter-affidavit claiming therein that the petitioners illegally trespassed in the residential premises of the complainant and had also assaulted and took away the wrist watch of his son. It is further alleged that the sanction order is required in the instant case as they had entered into the residential premises of the complainant and committed offence. It is further claimed that the said Tarak Nayak was found to be aged about 19/20 years in the medical examination but still notice was issued against opposite-party No. 2 for depositing a sum of Rs. 20,000/-by way of fine and as such, this petition is fit to be dismissed. 4. Heard learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of the opposite-party No. 2. 5. The learned counsel appearing on behalf of the petitioners submitted that it will be evident from the Notification, dated 17.5.1997 issued by the Commissioner -cum-Secretary, Department of Labour, Employment and Training that the petitioner No. 1 has been appointed as Inspecting Authority of an Establishment/Factory as well as from the minutes of the meeting held on 22.2.1997, it is clear that a sum of Rs. 20,000/- has to be deposited by an employer, who has engaged a child labour (vide Annexures 2 and 3). It is further submitted that the petitioner Nos. 1 and 2 inspected the premises /factory of the complainant on the basis of a letter issued under Memo No. 795, dated 13.5.1997 by the Deputy Commissioner, East Singhbhum, Jam-shedpur (Annexure 4) and when the petitioner Nos. It is further submitted that the petitioner Nos. 1 and 2 inspected the premises /factory of the complainant on the basis of a letter issued under Memo No. 795, dated 13.5.1997 by the Deputy Commissioner, East Singhbhum, Jam-shedpur (Annexure 4) and when the petitioner Nos. 1 and 2 were making inspecting of the factory, they were abused and assaulted as a result of which petitioner No. 1 already lodged a first information report as against the opposite-party No. 2 and others being Chakulia PS Case No. 32/97 under Sections 341/353/506/34 of the Indian Penal Code and Section 17 of the Child Labour Act, 1986 and the said case is still pending in the Court of the learned Additional Chief Judicial Magistrate at Ghatsila and, therefore, the opposite-party No. 2 filed these complaint case with a mala fide motive to harass the petitioners and the whole allegations propounded by the complainant are false and after-thought because this complaint case has been filed as a counter-blast in order to create defence. It is further argued that all the petitioners are the public servant, as the petitioner No. 1 is a Circle Officer, petitioner No. 2 is a Labour Inspector and petitioner No. 3 is an Assistant Sub-Inspector of Police of Chakulia Police Station but the Court below took cognizance without applying judicial mind as there is no sanction as required under the provision of Section 197 of the Code of Criminal Procedure and due to which the order taking cognizance is illegal and fit to be quashed. It is also submitted that the petitioner Nos. 1 and 2 had inspected the factory of the complainant/opposite-party No. 2 under valid provisions as they were authorised to inspect the factory and so they had performed their duty in accordance with law. The complainant/opposite-party No. 2 had filed the complaint case only with oblique motive as he had knowledge about the institution of the first information report by the petitioner Nos. 1 and 2 when the complaint case was filed in the Court on 2.7.1997 whereas charge-sheet has already been submitted in Chakulia PS Case No. 32 of 1997 but even then the Court below took cognizance in the instant case by the impugned order without applying his judicial mind. 1 and 2 when the complaint case was filed in the Court on 2.7.1997 whereas charge-sheet has already been submitted in Chakulia PS Case No. 32 of 1997 but even then the Court below took cognizance in the instant case by the impugned order without applying his judicial mind. It is further submitted that there is no injury report to substantiate the story of assault and Section 379 is also not made out as there is no allegation of theft of wrist watch against the petitioners rather it is alleged that a Constable took away wrist watch but no name has been disclosed in the complaint petition. 6. On the other hand, the learned counsel appearing on behalf of the opposite-party No. 2 contended that before me that the petitioners had entered into the residential premises of the opposite-party No. 2 and also assaulted the complainant and his son and they had taken wrist watch. It is further submitted that no sanction is required for lodging a criminal prosecution against a Government servant, if they committed offence. Hence, the petition is fitt be dismissed. 7. The complaint case was filed on 2.7.1997 about the occurrence, dated 23.6.1997 on which date admittedly the petitioner Nos. 1 and 2 had visited the factory of the complainant for inspection about the Child Labour. There is no dispute that the petitioners had already filed criminal cases against the complainant/opposite-party No. 2 being Chakulia PS Case No. 32/97 in which charge-sheet has already been submitted. From going through the no ification, dated 17.5.1997 (Annexure 2) issued by the Commissioner-cum-Secretary, Department of Labour Employment and Training, it is evident that the petitioner being the Circle Officer has been appointed as an Inspecting Authority of an Establishment/Factory. It further appears from the minutes of the meeting held on 22.9.1997 (Annexure 3) that a sum of Rs. 20,000/- has to be deposited by the employer, who has engaged a child labour. Thus, it is apparent that the petitioner Nos. 1 and 2 visited the premises/factory of the complainant on the day of occurrence in connection with the inspection and for the inspection of the factory. It may be noted here that the opposite-party No. 2/complainant has shown the occurrence in the complaint case just after the said occurrence as registered in the police case instituted by the petitioners as being Chakulia PS Case No. 32/97. It may be noted here that the opposite-party No. 2/complainant has shown the occurrence in the complaint case just after the said occurrence as registered in the police case instituted by the petitioners as being Chakulia PS Case No. 32/97. But no any cogent reason has been assigned to file the complaint case after nine days of the occurrence. 8. There is no doubt that all the petitioners are public servants and no sanction has been obtained before passing the impugned order taking cognizanqe when the visit of petitioner Nos. 1 and 2 to inspect the factory of the complainant directly or reasonably connects with their official duty. 9. Section 197 of the Code of Criminal Procedure lays down that: (1) When any person, who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused or any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction : (a) in the case of a person, who is employed or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person, who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State of the State Government. 10. Undoubtedly, the petitioner Nos. 1 and 2 made an inspection of the factory of the complainant. Pursuant to letter No. 795, dated 13.5.1997 issued by the Deputy Commissioner, East Singhbhum, Jamshedpur (Annexure 4). The petitioner No. 1 was also authorised to make an inspection of the factory and admittedly the petitioner No. 1 and 2 entered within the factory premises of the complainant for inspection on 23.6.1997 at about 1.30 p.m. for which criminal case was registered against the complainant by the complainant made out the case in the instant complaint that the petitioners again came to the factory premises at about 2.30 p.m. where his residential house is situated. But it does not appear reasonable that the petitioners would come again in the premises for committing assault and theft. But it does not appear reasonable that the petitioners would come again in the premises for committing assault and theft. It may further be noted here that 5/6 Constables said to have also participated in the alleged crime but none of them are named in the complaint case. 11. Learned counsel appearing on behalf of the petitioners relied upon a case of State of Bihar V/s. Kamla Prasad Singh and others, AIR 1998 SC 2397. In the said case, the search was made by the respondent Nos. 2 to 4 after obtaining a warrant front the competent authority and the Executive Magistrate was got himself present to supervise the raid. No complaint whatsoever was made to him regarding any misbehaviour or the illegal acts. As the search was made by respondent Nos. 2 to 4 after obtaining a proper warrant for that purpose and as there is no credible material to show that they had either abused or assaulted the wife of the complainant or any other person what they had done appears to have been done while discharging the order purporting to discharge their duty. Therefore, no cognizance of the alleged offence could be taken without a proper sanction of the Government. 12. Learned counsel also relied upon a case of Ramjee Thakur V/s. The State of Bihar, 1998 (1) PLJR 72; it was observed that previous sanction to prosecute public servant was necessary, if acts complained of are integrally connected with the duties attached to the office or in the discharge of official duty and the two are inseparable but if the act complained of is entirely unconnected with the official duty then no sanction to prosecute such person is necessary. 13. It is manifest that in the instant case, the complaint case was filed after much delay of the occurrence and also without sanction against the public servants, when, admittedly petitioner Nos. 1 and 2 had visited the factory on the same day at 1.30 p.m. for inspection of the factory for which they were duly authorised to do so. Thus, in my view, the sanction is essential in this case to initiate the proceeding against the petitioners. 14. The story as propounded by the complaimant also appears to be inherently improbable on the basis of which, no person can ever reach a just conclusion as undoubtedly petitioner Nos. Thus, in my view, the sanction is essential in this case to initiate the proceeding against the petitioners. 14. The story as propounded by the complaimant also appears to be inherently improbable on the basis of which, no person can ever reach a just conclusion as undoubtedly petitioner Nos. 1 and 2 had visited the premises/ factory at 1.30 p.m. for inspection and for which they had already filed a Criminal case about misconduct of the complainant as being Chakulia PS Case No. 32/97. Thus, there is no reason that the petitioner could again visit the premises/ factory for the purpose of committing theft and assault. 15. One of the categories of cases as given in the case of State of Haryana and others V/s. Bhajan Lal and others, AIR 1992 SC 604 , wherein inherent power under Section 482 of the Code of Criminal Procedure could be exercised either to prevent to abuse the process of any Court or otherwise to secure the ends of justice..." where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge". 16. It is well-settled that judicial process should not be an instrument of oppression or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass persons needlessly. There is no doubt that this complaint case was filed after due deliberation out of vengeance with oblique motive to harass or put pressure which should not be allowed to stand. 17. It is evident that the allegations made in the complaint appears to be improbable as well as the said complaint case was filed with oblique motive and after-thought for wreaking vengeance as the petitioners already instituted criminal case against the complainant for the offence under Sections 341/353/506/34 of the Indian Penal Code and 17 of Child Labour Act earlier to the filing of this complaint case when the petitioners had gone to the factory premises having due authentication and power to inspect the factory. 18. 18. Having given my anxious consideration to the facts and circumstances of the case, in my view, the criminal proceeding initiated against the petitioners cannot be allowed to stand. 19. For the reasons aforesaid, this application is allowed and the entire criminal proceeding initiated against the petitioners in case No. C/1 No. 50/97 including the order, dated 22.6.1998 is quashed.