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2002 DIGILAW 1156 (PAT)

Shyamlal Rajak @ Shyamlal v. State Of Bihar

2002-10-30

SHIVA KIRTI SINGH

body2002
Judgment 1. Heard the parties. 2. Both the petitioners are police officials and at the relevant time petitioner No.1 Shyamlal Rajak was Officer Incharge of Phulwarisharif RS. District Patna and Petitioner No.2 Chandrabhushan Singh @ Chandrabhushan Prasad was Assistant Sub-Inspector of Police in the same police station. They have prayed for quashing the proceedings in Complaint Case No. 121(C)/ 2000 and also order of cognizance dated 3rd February, 2000 passed in that case by the learned Chief Judicial Magistrate, Patna and order dated 4.5.2000 passed by the learned Judicial Magistrate, Patna by which process was issued, in sofar as those orders relate to the petitioners. 3. On behalf of the petitioners .it has been submitted that there was already a police case lodged through an F.I.R. dated 12th January, 2000 against the complainant Ramdas Thakur by one Abhinash Kumar and it was in connection with that case that the petitioners had gone to the house of the complainant on 17th January, 2000 and this false case has been lodged only because they arrested the complainant on that date in connection with Phulwarisharif P.S. Case No. 13/2000. According to the learned counsel for the petitioner the petitioners are entitled to the protection under section 197 of the Code of Criminal Procedure and no cognizance should have been taken against them in absence of sanction from the competent authority. 4. On behalf of the complainant it has been submitted that as per allegations in the complaint petition the son of the complainant, namely, Gyan Das @ Bhondu was also taken to the police station by the petitioners and thereafter he was handed over to three other co-accused and since then the said son of the complainant is missing and the complainant is under, an apprehension that he might have been killed. According to the learned counsel for the complainant, in view of such serious allegation protection under section 197 of the Code of Criminal Procedure is not available to the petitioners at least at the present and requirement of sanction may subsequently be examined by the trial court during trial. 5. According to the learned counsel for the complainant, in view of such serious allegation protection under section 197 of the Code of Criminal Procedure is not available to the petitioners at least at the present and requirement of sanction may subsequently be examined by the trial court during trial. 5. In reply the learned counsel for the petitioners submits that since enquiry by the Magistrate is limited in scope hence whereabouts of the alleged missing son of the complainant could not be found out, but the petitioners have received information that the said son of the complainant has been living out side Patna and if investigation is entrusted to an impartial authority the alleged missing son of the complainant may be traced and located. 6. Considering the submissions of both sides, this Court finds that the allegation about alleged kidnapping of the complainants son is serious in nature and the ! learned Magistrate, in view of such serious i allegation should have entrusted the investigation to a competent and impartial agency so that truth might have been found out. in such circumstances, it was not proper to conduct an enquiry of the usual nature by asking the complainant to adduce his witnesses. The learned Chief Judicial Magistrate, after perusing the complaint should have referred the complaint to the police for instituting an F.I.R. or he ! could have straight way ordered for enquiry/investigation by or under Crime Investigation Department of the State of Bihar. Hence in the interest of justice the subsequent proceedings in the complaint case in question is quashed and the matter is remitted back to the learned Chief Judicial Magistrate, Patna for passing fresh orders in accordance with law and the observations made in this order. 7. This Court has been informed that petitioner no.1 is now transferred to another police station. In such circumstances, the learned C.J.M. may refer the complaint petition to the concerned police station for instituting a police case and such case shall thereafter be entrusted to the C.I.D. for expeditious investigation in accordance with law. 8. This application is allowed to the aforesaid extent.