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2004 DIGILAW 223 (PAT)

Rajeshwar Yadav v. State Of Bihar

2004-02-24

L.P.SINGH

body2004
Judgment 1. By the Court.This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 14.12.2001, passed in Cr. Revision No. 478 of 2001 by the District and Sessions Judge, Rohtas wherein the learned Sessions Judge had set aside the order dated 30.8.2001, passed by the Chief Judicial Magistrate, Sasaram dismissing the Complaint Case No. 411 of 2000 under Section 203 of the Code. 2. From the facts of this case it appears that opposite party No. 2 had filed the aforesaid complaint case against the petitioner and others. As many as 12 accused have been named in this complaint petition. The petitioner, Rajeshwar Yadav has been named as accused No. 11. Various allegations have been made in this complaint petition against the accused persons. For the disposal of this applications I am not concerned with the details of the allegations. It will be sufficient to mention that in this case the Superintendent of Police, Rohtas as also the Officer Incharge of S.C.S.T. Police Station, Dehri were also made accused alongwith the number of constables. On the receipt of this complaint petition the learned Chief Judicial Magistrate by his order dated 8.5.2002, sent this complaint petition to the Deputy Inspector General of Police, Sahabad Range (in short the DIG) for enquiry and report. The DIG by his Memo No. 949, dated 17.5.2000, sought an explanation from the Superintendent of Police, Rohtas and his explanation was submitted vide his Memo No. 3146, dated 5.6.2000. In this explanation he had referred to a decision of the Honble Supreme Court dated 10.3.2000, passed in S.L.P. (Cri) No. 1072 of 1998. 3. The DIG submitted his report on 22,8.2000, before the Chief Judicial Magistrate, Rohtas according to which sanction under Section 197 of the Code was essential for the prosecution of the Superintendent of Police and Officer Incharge of the concerned Police Station. The learned Chief Judicial Magistrate by his order dated 30.8.2001, dismissed the complaint petition under Section 203 of the Code on various grounds as also on the ground of want of sanction under Section 197 of the Code. Against this order of dismissal the complainant-opposite party No. 2 filed Cr Revision No. 478 of 2001 before the learned Sessions Judge, Sasaram which was heard and disposed of by an order dated 14.12,2001, (impugned order). Against this order of dismissal the complainant-opposite party No. 2 filed Cr Revision No. 478 of 2001 before the learned Sessions Judge, Sasaram which was heard and disposed of by an order dated 14.12,2001, (impugned order). By this order the learned Sessions Judge had set aside the order of dismissal of the complaint petition passed by the learned Chief Judicial Magistrate. He further directed him to held an enquiry himself or to get a judicial enquiry by a Judicial Officer held in the matter. He, accordingly, remanded back the case to the Court of the learned Chief Judicial Magistrate with the directions mentioned in this order. 4. On behalf of the petitioner it has been submitted that before passing the impugned order in Cr Revision No. 478 of 2001 the learned Sessions Judge had not given any notice to the petitioner to which he was entitled and without hearing him the order of dismissal passed by the learned Chief Judicial Magistrate Could not have been set aside. The learned Court below failed to consider that in a case like this mandatory compliance of the provisions of Section 197 of the Code would be necessary in so far as the Police Officers are concerned. In this connection reference has been made to two cases namely, case of Bishwanath Singh V/s. Birsai Bhagat, 2000 (2) PLJR 161 , and the case of Dr. Ajay Kumar V/s. Girja Nand Prasad. 2000 (4) PLJR 504 (HC). The learned Sessions Judge has failed to consider that if the act or omission complained of against a public servant is done by him while acting or purporting to act in discharge of his official duties then no action against him can be taken by any Court as held in the case of N.C. Dhaundial V/s.State of Bihar, 1997 (2) PLJR 754, and in the case of Naresh Mishra V/s. State of Bihar, 1997 (1) PLJR 1012. 5. The husband of the complainant- opposite party No. 2 was arrested by the police in a cognizable case on the basis of valid orders of the Chief Judicial Magistrate. The learned Sessions Judge did not consider this aspect of the matter and the ulterior motive of opposite party No. 2 in filing the complaint petition only to take revenge from the Police Officer as she was arrested on 6.5.2000, in Sasararri (M) P.S. Case No. 9 of 2000. The learned Sessions Judge did not consider this aspect of the matter and the ulterior motive of opposite party No. 2 in filing the complaint petition only to take revenge from the Police Officer as she was arrested on 6.5.2000, in Sasararri (M) P.S. Case No. 9 of 2000. On these grounds amongst others it has been contended that the impugned order be set aside. 6. I have heard the parties in detail on the various aspects of this case and the questions of law raised therein. In this connection it has firstly to be noticed that the present petitioner is accused No. 11 in the complaint petition and he has filed this petition under Section 482 of the Code for the reliefs prayed in it as mentioned above. On behalf of the opposite party No. 2 it has seriously been contended before me that as since no process has been issued against the accused persons of the complaint case the present petitioner has got no locus standi in the matter and, therefore, he could not have filed the present application under Section 482 of the Code. As stated above the learned Chief Judicial Magistrate had dismissed the complaint petition under Section 203 of the Code and the learned Sessions Judge while disposing of the criminal revision application has remanded back the case to the learned Chief Judicial Magistrate with certain directions mentioned in the order. As such it has been submitted that till this stage the accused persons of the case have got no locus standi in the matter, for invoking inherent jurisdiction of this Court also. They can not be allowed to do a thing which has got no sanction of law and they can not be allowed to circumvent the law. In this connection my attention has firstly been drawn to the settle allow on the subject. 7. A counter affidavit has also been filed on behalf of opposite party No. 2 in which she has contended that the statements made in this application are in correct and the petitioner has completely disregarded and violated the provisions of the Code of Criminal Procedure while executing the search and seizure warrant. The accused persons acted in a most biased, prejudiced and discriminatory manner by picking up Laleshwar Singh from the dwelling house. The accused persons acted in a most biased, prejudiced and discriminatory manner by picking up Laleshwar Singh from the dwelling house. The learned Chief Judicial Magistrate should not have asked the DIG to investigate the case and the DIG should not have called for an explanation from the Superintendent of Police who is accused in the matter. The order passed by the learned Sessions Judge dated 14.2.2001, is just and proper. Section 197 of the Code does not operate as bar to an inquiry under Section 202 of the Code. All that the learned Sessions Judge has done is to remand back the case for fresh decision in accordance with law. On these ground it has been stated that there is no merit in this application which may be rejected. 8. Before proceeding any further it has to be mentioned that on the receipt of the complaint petition the learned Chief Judicial Magistrate has sent the complaint petition to the DIG for investigation. Before doing so he had not examined the complainant on solemn affirmation. This direction for investigation to the DIG was passed under Section 202 of the Code as will appear from the order dated 8.5.2000, passed by the learned Chief Judicial Magistrate. 9. So far as the law on the point is concerned my attention has been drawn to the case of Chandra Deo Singh V/s. Prakash Chandra Bose alias Chabi Bose and another, AIR 1963 SC 1430 . In this decision the Honble Supreme Court had laid down the true scope of Section 202 of the Code. It has been observed as follows by the Honble Supreme Court : "It seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so." Thus from this decision it would become clear that till the process is issued against the accused he has got no locus standi to participate in an inquiry or investigation under Section 202 of the Code. This view has also been taken in the case of Smt. Nagawwa V/s. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947 , in which it has been held that in fact in an inquiry under Section 202 the accused has got no focus standi and can not be heard. Subsequently in the case of V.C. Shukla V/s. The State, AIR 1980 SC 138 , it has been clearly held by the Honble Supreme Court that the right to be heard to the accused comes into existence only when the process is issued under Section 204 of the Code. 10. From these authoratative pronouncement by the Honble Supreme Court it becomes clear that till the process is issued against the accused under Section 204 of the Code he has got no locus standi in the matter. In the present case this application has been filed by accused No. 11 under Section 482 of the Code. This accused has invoke the inherent jurisdiction of this Court in order to set aside the order passed by the learned sessions Judge remanding back the case to the learned Chief Judicial Magistrate. It is well settled in law that a person can not be allowed to do a thing indirectly if the law does not permit him to do it directly. In this connection it may be stated that inherent powers of this Court can be invoked to make such order as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In this connection it may be stated that inherent powers of this Court can be invoked to make such order as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In the present case however, as yet no action has been taken against the accused persons. The complaint was dismissed by the learned Chief Judicial Magistrate under Section 203 of the Code and by the impugned order the learned Sessions Judge has simply remanded back the case to the said Court for passing necessary order after following the directions contained therein. Hence the provisions of Section 482 of the Code are not attracted. 11. From the order passed by the learned Chief Judicial Magistrate dismissing the complaint petition under Section 203 of the Code what has heavily weighed with him was the fact that no cognizance could be taken against the Superintendent of Police without necessary sanction under Section 197 of the Code. Later on this point has been very clearly laid down by the Honble supreme Court in the case of P.K. Pradhan V/s. State of Sikkim, 2001 (6) SCC 704 . In this decision it has been held that it is well settled that even after taking of cognizance the question of sanction can be raised at any time, namely, (i) immediately after cognizance or (ii) at the time of framing of charge or (iii) at the time of conclusion of trial or (iv) even after conviction as well. It has been further observed in this decision as follows : "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 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." In this decision the Honble Supreme Court has overruled its earlier decision in the case of Birendra Kumar V/s. State, 2000 (3) PLJR 42 (SC). From this it would appear that the question whether the case is hit by Section 197 of the Code can be determined even afterwards at time of the main judgment to be passed in the case. 12. Further in this decision it has been held that for claiming the 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 discharge of the official duty. The official act can be performed in discharge of the official duty as well as in dereliction of it. Also it was held that if there is no connection between the acts complained of and the performance of official duties no protection under Section 197 of the Code can be made available to the public servant since the official status furnishes to the public servant only the occasion or opportunity for the acts and not to commit illegal acts. In such cases no sanction would be necessary. 13. Now coming to the facts of the present case as will appear from the complaint petition as also the order dated 30.8.2001 passed by the learned Chief Judicial Magistrate, it would appear that the Superintendent of Police, Rohtas, Officer Incharge of Sasaram (M), Harijan police station besides about 50 police constables had come to the house of opposite party No. 2 at 5 a.m. on 6.5.2000. They assaulted her even in presence of her guests and ransacked her house. On the order of the Superintendent of Police 9-10 police constables assaulted her son Laleshwar Singh. The Superintendent of Police, Mr. Singhal himself dragged Indu Devi and the police personnel committed the theft of gold Ornaments of opposite party No. 2. They assaulted her even in presence of her guests and ransacked her house. On the order of the Superintendent of Police 9-10 police constables assaulted her son Laleshwar Singh. The Superintendent of Police, Mr. Singhal himself dragged Indu Devi and the police personnel committed the theft of gold Ornaments of opposite party No. 2. The aforesaid acts can not be said to be in discharge or purported discharge of official duties. It may be pointed out here that for the present allegations made in the complaint petition and not the defence taken by the accused is to be taken into consideration in order to determine whether the sanction under Section 197 of the Code is necessary or not. From the aforesaid facts, however, it would become clear that committing the theft of gold ornaments, assaulting the inmates of the house and dragging the female inmate can not be said to. have been done in discharge of the official duties or even in purported discharge of the official duty. 14. In this connection my attention has been drawn to the order dated 30.8.2001, passed by the learned Chief Judicial Magistrate in which he has made a reference to the order passed by the Honble Supreme Court in S.L.P.(Cri) No. 1072 of 1998. Copy of this order is Annexure-4. From the facts of the said case it would appear that as per the conclusion arrived at by the learned Magistrate after considering the entire material on record the entry of the accused persons inside the premises was on the basis of an order passed by the learned Chief Judicial Magistrate, Buxer. It was under this circumstance that it was held that the act complained of was intrinsically connected with the discharge of the official duty and protection under Section 197 of the Code was available to the accused persons. The facts of the said case are not known to us. From this order, however, it would appear that the learned Magistrate had occasion to examine the entire materials placed on the record in the case. The facts of the said case are not known to us. From this order, however, it would appear that the learned Magistrate had occasion to examine the entire materials placed on the record in the case. Only thereafter he came to the conclusion that the entry of the accused persons inside the premises was on the basis of an order passed by the Court of the Chief Judicial Magistrate, Buxer and it was under this circumstance that the Honble Supreme Court held that the acts complained of were intrinsically connected with the discharge of the official duties of the accused persons. In the present case there in no such finding of a competent Court on the facts and circumstances of this case. Hence this decision of the Honble Supreme Court will be of any help to the petitioner. 15. My attention has also been drawn to another disturbing fact noticed in this case. From the complaint petition it appears that it was lodged against the Superintendent of Police, Officer Incharge of the police station and some police constables. Under this circumstance it has been submitted that it was highly improper for the learned Chief Judicial Magistrate to entrust the investigation into the case to the DIG of Police. I find force in his contention. Specially when the allegations are made against the Police Officers the learned Chief Judicial Magistrate should not have asked the DIG to investigate the case. This appears to me as improper exercise of discretion in the matter. It is well settled that complaint against the police should be handled with greatest care and caution. It is also equally well settled that in a case against police it is improper to call for a report from accused Police Officer or his superior or ordered investigation by the police. In such cases enquiry should be conducted by a Magistrate himself. The Chief Judicial Magistrate is a Senior Judicial Officer and it is not expected of him that he well exercise his discretion in such a wrong manner by entrusting the investigation to the DIG in a case in which there is direct allegation against the Superintendent of Police and other police personnels. It is not clear under what circumstances he has passed this order. It is least expected from a Judicial Officer of his standing that he will be so indiscreet as to pass such an order. It is not clear under what circumstances he has passed this order. It is least expected from a Judicial Officer of his standing that he will be so indiscreet as to pass such an order. This fact will become evident from Annexure-3 which is letter from Sri S.K. Singhal, the Superintendent of Police, Rohtas (accused in this case addressed to DIG to whom the investigation was entrusted). From this annexure it would appear that DIG instead of properly investigating the allegations made against the Superintendent of Police had asked for comments from no less a person than the accused Superintendent of Police himself. Obviously he has reported that all the allegations made in the complaint petition were false. Also he has referred to the order of the Honble Supreme Court as contained in Annexure-4 about which a reference has already been made in the earlier part of this order. On the basis of Annexure-B the DIG submitted his report of his investigations (Annexure-5) made under Section 202 of the Code according to which relying on letter of accused Superintendent of Police he has stated that the allegations contained in the complaint petition are false. He has further stated that the Superintendent of Police is entitled to protection under Section 197 of the Code. It will, thus, become clear that by taking a wrong step of entrusting the investigation to the DIG the matter reached to the accused Superintendent of Police and he had occasion to express his comment on the allegations made against him. The DIG in his turn accepted the same and submitted report to the learned Chief Judicial Magistrate who has accepted the same and dismissed the complaint petition under Section 203 of the Code. In paragraph 2 of his order the learned Chief Judicial Magistrate has stated that for better appreciation he perused the case of Harijan P.S. Case No. 9/2000, and found out that the son of the complainant was forwarded to the Court in custody in another case. It will, thus, become clear that the learned Chief Judicial Magistrate has referred to the defence in this case which he was not authorised to do. So far as nine (9) other accused persons are concerned in paragraph 5 he has stated that there was absolutely no allegation against them in the complaint petition though the fact is otherwise. It will, thus, become clear that the learned Chief Judicial Magistrate has referred to the defence in this case which he was not authorised to do. So far as nine (9) other accused persons are concerned in paragraph 5 he has stated that there was absolutely no allegation against them in the complaint petition though the fact is otherwise. It appears that the learned Chief Judicial Magistrate was too eager to dismiss the complaint petition since obviously it involved Police Officers. 16. My attention has also been drawn to the fact that on the receipt of the complaint petition the learned Chief Judicial Magistrate has not examined the complainant on solemn affirmation. He has straight away sent the complaint petition to the DIG for investigation under Section 202 of the Code. At the bar it has been submitted that the law does not permit him to do so. In this connection my attention has been drawn to the provisions of law according to which on the receipt of the complaint petition it is obligatory on the part of the Magistrate taking cognizance of the offence to examine the complainant on solemn affirmation. The position of law on this point is, however, well settled by the Honble Supreme Court in the case of T.J. Stephen and others V/s. M/s. Parle Bottling Co. (P) Ltd. and others, AIR 1988 SC 994 , in which it has been held that non-examination of the complainant on solemn affirmation is a curable irregularity under Section 465 of the Code. From the order dated 30.8.2001, it would appear that the learned Chief Judicial Magistrate seeing consequences of this fact of recording the statement of the complainant on solemn affirmation but since he was of the view that the complainant was apparently barred under Section 197 of the Code, hence it was not lawful for him to take immediate action. As noticed above the bar of Section 197 of the Code has to be decided under the facts and circumstances of this case and there is no such blanket bar in law so far as this provision of law is concerned.. 17. Further my attention has been drawn to Section 202 of the Code under the provision of which the DIG was asked to investigate the case. 17. Further my attention has been drawn to Section 202 of the Code under the provision of which the DIG was asked to investigate the case. Its first proviso runs as follows : "Provided that no such direction for investigation shall be made (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (B) Where the complaint has not been made by a Court unless the complainant and the witnesses present (if any) have been examined on oath under Section 200." From this provision of law it would appear that any investigation under the provisions of Section 202 of the Code can only be ordered after the complainant and witnesses personally were examined on oath under Section 200 of the Code. In the present case though the complainant had appeared before the learned Chief Judicial Magistrate he was not examined on solemn affirmation. As noticed above this is curaole irregularity under Section 465 of the Code. However, if on the filing of the complaint petition an investigation is ordered as per clause (b) of first proviso of Section 202(1) of the Code the examination of the complainant and witnesses present, if any, becomes mandatory before any such investigation is ordered. In the present case this has not been done. 18 From the detailed discussions made above it becomes perfectly clear to me that the present petitioner has got no locus standi in the matter and he could not have filed this application under Section 482 of the Code. Even on the basis of the facts alleged in this petition no case for the exercise of inherent powers of this Court under Section 482 of the Code has been made out. Hence in this view of the matter this application is not maintainable and is liable to be dismissed. 19. I have expressed my views with respect to the various questions of law raised on behalf of the parties. Since the matter has been remanded back to the Court of the learned Chief Judicial Magistrate he should take notice all the relevant provisions of law in the matter as noticed by me in this decision. 19. I have expressed my views with respect to the various questions of law raised on behalf of the parties. Since the matter has been remanded back to the Court of the learned Chief Judicial Magistrate he should take notice all the relevant provisions of law in the matter as noticed by me in this decision. However, it will be open to him to draw his own conclusions in the matter in accordance with law and the views expressed by me with respect to those decisions are only academic in nature and not binding on him. He should, however, proceed to dispose of the matter in accordance with law. 20. This application is, accordingly, dismissed.