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2002 DIGILAW 395 (PAT)

Bhartendu Prasad Deb v. State Of Bihar

2002-03-22

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. This application has been filed for quashing the order dated 5.7.2000 passed by the Judicial Magistrate, Ist Class, Bhagalpur in Complaint Case No. 365 of 2000 whereby, it had taken cognizance of the offence under sections 324, 385 and 379 of the Indian Penal Code and directed for issuance of process against the petitioner. 2. Short facts giving rise to the present case are that opposite party no. 2 Babiu Kumar Singh lodged a petition of complaint in the Court of Chief Judicial Magistrate, Bhagalpur, inter alia, alleging that he is the cleaner (Khalasi) of Truck bearing Registration No, BPN 7899 of which one Satya Narain Mandal is the driver. According to the complainant, on 26.4.2000, the complainant as also the driver was proceeding towards Kahalgaon carrying coal in the truck and according to the complainant, all papers for transporting the coal and other documents required for plying the truck, were available. According to the complainant, when the truck reached near Rajaun Police Station at about 9 P.M., the Officer-in-Charge of Rajaun Police Station i.e. petitioner and an Assistant Sub Inspector of Police of that Police Station signalled to stop the truck and they demanded a sum of Rs. 1000/- from the driver which was declined by him. According to the allegation, the Officer-in-Charge and the Sub Inspector of Police stated that they are paid a sum of Rs. 1000/- from each of the truck transporting coal and as such, the driver had to pay that amount. The driver however, refused to make payment and proceeded with the truck at which the aforesaid two persons along with 5-6 constables armed with rifles, chased the truck and apprehended the same at Ghatnagar crossing in Bhagalpur town. It has been further alleged that the complainant jumped out of the truck and he saw that the aforesaid two police officers and the armed constables dragged the driver out from the truck and assaulted him by the butt of the rifle. According to the complainant, when the truck driver looked almost dead; accused persons threw him by the side of the road. Thereafter, the petitioner drove the jeep himself and asked the Jeep driver to drive the truck to the Police Station. It has been further stated in the petition of complaint that the accused persons have taken away the truck valued at Rs. 4 lacs loaded with coal worth Rs. Thereafter, the petitioner drove the jeep himself and asked the Jeep driver to drive the truck to the Police Station. It has been further stated in the petition of complaint that the accused persons have taken away the truck valued at Rs. 4 lacs loaded with coal worth Rs. 20,000/- as also the important documents and clothes of the complainant and the driver. The complainant had further stated that in the following morning, he handed over the driver to the owner of the truck and in order to save his life, he was taken to the Kahalgaon Government Referal Hospital. The complainant was examined on solemn affirmation and four witnesses including the truck driver were examined during the course of inquiry. The learned Magistrate, on consideration of the allegation made in the petition of complaint, statement of the complainant on solemn affirmation and four witnesses examined during the course of inquiry, prima facie, held that offence under sections 324, 385 and 379 of the Indian Penal Code has been made out and accordingly, directed for issuance of summons. 3. It is the stand of the petitioner that, in fact, the Assistant Sub Inspector of Police of Rajaun Police Station, namely. Guru Prasad Bhagat had lodged a first information report on 26.4.2000 under sections 113, 114, 224, 379 and 34 of the Indian Penal Code against the driver and owner of the truck in question and in order to save their skin, with the collusion of the complainant, present complaint has been filed. Stand of the petitioner further is that on the date of occurrence, i.e. on 26.4.2000, petitioner was on patrolling duty and this fact would be evident from the entries made in the Station Diary as well as daily duty chart. Accordingly, the plea of the petitioner is that the entire allegation made against him is false. 4. Mr. Ramchandra Jha, Senior Advocate, appearing on behalf of the petitioner refers to the aforesaid pleas of the petitioner and contends that from the aforesaid fact, it is evident that the allegation made against the petitioner is false. I do not find any substance in this submission of the learned counsel. It is well settled that at the stage of taking cognizance and issuance of process, learned Magistrate is only required to be satisfied that the materials laid before it, prima facie, show commission of the offence. I do not find any substance in this submission of the learned counsel. It is well settled that at the stage of taking cognizance and issuance of process, learned Magistrate is only required to be satisfied that the materials laid before it, prima facie, show commission of the offence. At this stage, the defence of the accused is not to be gone into. The plea taken by the petitioner that the complainant had filed the complaint in collusion with the driver and owner of the truck to save their skin from the police case instituted against them, in my opinion is the defence of the petitioner which is not fit to be gone into at this stage. 5. Further plea of the petitioner is that the truck in question was intercepted and seized by the police personnel as the driver did not produce the required papers and although the driver was arrested but he fled away pretending to attend the call of nature. It is the assertion of the petitioner that during the relevant time, he was posted as the Officer-in-Charge of the Police Station and he being not removable from service, save with the sanction of the competent authority, his prosecution without sanction as required under Section 197 Cr. P.C. is illegal. 6. Petitioner had taken a contradictory stand in this regard in paragraph 15 of the application. He has clearly averred that on the alleged date of occurrence, he was not on patrolling duty and this fact would be evident from the entry made in the Station Diary and the daily duty chart. On the other hand, his plea is that act done by him is in discharge of his official duty and as such, his prosecution without sanction is illegal. 7. Mr. Jha submits that the petitioner being a Police Officer not removable from his office save with the sanction of the State Government, his prosecution without sanction as required under section 197 Cr.P.C. is illegal. He points out that the question of requirement of sanction can be raised at any time after cognizance of the offence is taken. 8. Mr. Mr. Jha submits that the petitioner being a Police Officer not removable from his office save with the sanction of the State Government, his prosecution without sanction as required under section 197 Cr.P.C. is illegal. He points out that the question of requirement of sanction can be raised at any time after cognizance of the offence is taken. 8. Mr. Shiva Shankar Prasad Singh, Learned Additional Public Prosecutor, however, appearing on behalf of the State submits that in the present case, the claim made by the petitioner that while discharging his official duty, the alleged act was done, is the defence of the petitioner and as such, this is not the stage at which the question of grant of sanction is fit to be gone into. 9. Having appreciated the rival submissions, I find substance in the submission of the learned counsel for the State. True it is that the question of sanction can be raised any time immediately after taking cognizance or framing of charge or even at the time of conclusion of the trial and after conviction as well. In the case of Abdul Wahab Ansari vs. State of Bihar and another reported in 2001 (1) P.L.J.R. (SC) 13, the Supreme Court had the occasion to consider this question and in the said case it has been held as follows : "The question of sanction under section 197 Cr.RC. can be raised and considered at any stage of the proceeding and further in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. This being the position we are of the considered opinion that the decision of this Court in Birendra K. Singhs case JT 2000 (8) SC 248 : 2000 (3) PLJR (SC) 42 does not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time." 10. Again in the case of P.K. Pradhan vs. State of Sikkim, represented by the Central Bureau of Investigation reported in (2001) 1 SCC 704, the Supreme Court reiterated its view in the following words : "15. Again in the case of P.K. Pradhan vs. State of Sikkim, represented by the Central Bureau of Investigation reported in (2001) 1 SCC 704, the Supreme Court reiterated its view in the following words : "15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of Official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it in such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial. (underlining mine) 11. I had the occasion to consider this question in Cr. Misc. No. 28834 of 2000 (Bhupendra Nath Srivastava & Ors. (underlining mine) 11. I had the occasion to consider this question in Cr. Misc. No. 28834 of 2000 (Bhupendra Nath Srivastava & Ors. vs.The State of Bihar & Ors.) and analogous cases disposed of on 21.3.2002 and in the said case I had held as follows : "In my opinion, question of sanction under section 197 of the Code of Criminal Procedure can be raised any time immediately after the cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. However, there may be certain cases in which examination of this question may require detail evaluation of the material or the accused may tike to bring evidence to show that what he did was in discharge of official duty and in such cases, the accused may not be allowed to raise this question immediately after the cognizance is taken and processes issued. In fact, no hard and fast rule of universal application can be laid as regards the stage at which this question can be allowed to be raised. It will depend upon the facts and circumstances of each case." 12. In the present case, as stated earlier at one point of time, the plea of the petitioner is that his prosecution without the sanction is illegal and at the same time, in paragraph 15 of the application, he has taken a plea that he had not gone on patrolling duty on the date of occurrence and as such, his presence at the place of occurrence is absolutely ruled out. Further plea of the petitioner that what he did was in discharge of official duty, is his defence and can be examined during the course of trial by giving opportunity to the petitioner to establish it. In such a situation, I am of the opinion that the question of sanction deserves to be decided after conclusion of the trial. From the discussions aforesaid, I have no hesitation in holding that in the facts of the present case, the plea of the petitioner that what he did was in discharge of official duty, cannot be gone into at this stage and he shall be free to establish the same during the course of trial and take objection as regard to the sanction for prosecution after the conclusion of the trial. 13. 13. In the result, I do not find any merit in this application and it is dismissed accordingly.