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2004 DIGILAW 946 (PAT)

Shiv Kumar Poddar v. State Of Bihar

2004-09-10

RADHA MOHAN PRASAD

body2004
Judgment 1. In this miscellaneous application prayer is for quashing the order dated 20.6.1997 passed by the Judicial Magistrate, First Class, Purnia, by which cognizance under Sections 148. 149, 447, 448, 379 and 427 of the Indian Penal Code has been taken against the petitioner in connection with Complaint Case No. 224 of 1996. 2. In short, the prosecution case, as spelt out in the complaint petition, is that the complainant is a privileged person. His house stands on 1-1/2 decimals of land on Plot No. 52 where he is living with his family members. According to him, in a portion of Plot No. 51, one Sameer Ansari, son of Kallar Ansari of Birouli has his house over an area of 4 decimals of land and he has got a privileged persons homestead tenancy purcha for the said land. Sameer Ansari lives in that house with his family members. It is alleged that one accused Himayu Ansari alias Khursid Ansari is a designing fellow and he somehow managed to obtain a privileged persons homestead tenancy purcha for a piece of land out of Plot No. 52 in his favour by influencing the then C.O Noor Alam, a casteman of his, though he had no residential house over any portion of Plot No. 52. Said Himayu Ansari had earlier made attempt to dislodge the complainant from his house, but the same was aborted since he could not succeed to show his house on the land for which he is said to have obtained a collusive homestead tenancy purcha. It is alleged that recently the present Anchal Adhikari, i.e., accused No. 1, who has some soft corner for the people of his community at the instance of accused Himayu. Ansari dispossessed the complainant by organising an unlawful assembly with the assistance of his subordinate and men brought by the accused Himayu Ansari with the common object of illegally dismantling the residential house of the complainant and ousting him from his homestead land and he put Himayu Ansari in possession thereof. It is alleged that he requisitioned the services of the police force so that he may keep the complainant under duress and achieve the illegal object of the unlawful assembly. It is alleged that he requisitioned the services of the police force so that he may keep the complainant under duress and achieve the illegal object of the unlawful assembly. It is further alleged that he along with accused persons made a raid to the house of the complainant on the date of occurrence and ordered the members of the unlawful assembly to dismantle the house of the complainant and to set fire to it. The said accused persons dismantled two living rooms of the complainant and under his order Himayu Ansari set fire to the Gosain Ghar (Pooja Ghar) belonging to the complainant and also looted the house-hold articles belonging to the complainant. 3. According to the case of the petitioner, after obtaining purchas of the above mentioned land, both the settlees Sameer Ansari and Humayu Ansari prayed to the then Circle Officer through their applications that the complainant of the same village and one Tenu Ram had illegally encroached upon their said land and both had built huts on them. They had also filed written application in this regard to the S.D.O., Dhamdaha, D.M. and S.P., Purnia and had prayed for delivery of possession of the said land to them and also to direct the then CO., Rupauli to take necessary steps in this matter. The D.M., Purnia on 21.2.1991 asked the then CO. Rupauli to look into the matter and take necessary action, vide Annexure 2. The S.D.O., Dhamdaha on 29.1.1993, vide Annexure 3, also asked the CO., Rupauli to take necessary steps to get the illegal encroachment removed. Thereafter, the C.O., Rupauli got the matter inquired through the then Halka Karamchari and the then Circle Inspector, who reported that the land settled with the settlees had been encroached upon by the complainant and Tenu Ram and that the said encroachers had no locus standi over the land. 4. Considering the said report, the then CO., Rupauli sought an Aminnapi report which also confirmed that complainant and Tenu Ram had illegally encroached upon the lands of the settlees. Thereafter, the. CO. issued show cause notice to the respondent-complainant to vacate the Government land settled with the settlees and the complainant gave reply to the show cause notice in which he himself admitted that since he has already encroached upon the land and built house thereon, the same may be settled with him. Thereafter, the. CO. issued show cause notice to the respondent-complainant to vacate the Government land settled with the settlees and the complainant gave reply to the show cause notice in which he himself admitted that since he has already encroached upon the land and built house thereon, the same may be settled with him. When despite several directions/orders of the local authority the complainant did not remove the encroachment, then on the direction of superior authority, the Circle Officer, who is also accused No. 1 in the complaint on 9.3.1996 asked the petitioner to accompany him along with the police force to remove encroachment from the Government land, which was settled by the State to the settlees. 5. According to the petitioner, the complainant formed an unlawful assembly with many persons and they armed with deadly weapon obstructed the public servants from discharging their official function, assaulted them, committed several overt acts against them and made attempt to set fire to the official jeep of the Circle Officer, for which the Circle Officer had to lodge a case against them in Rupauli Police Station, which is numbered as Rupauli P.S. Case No. 32/96 under Section 147, 148, 341, 379, 427, 353, 186, 332 and 504 IPC, in which the accused persons have been charge-sheeted. The certified copy of the FIR of the said case has been annexed as Annexure 6. The said case is pending in the Court of Judicial Magistrate, First Class, Purnina being T.R. No. 1007/98. It is stated that about the vandalism committed by the complainant and his associates, the CO reported the matter to the D.M. and S.P., Purnia on 9.3.1996 through wireless message. It is, thus, contended that the entire criminal proceeding, including the impugned order dated 20.6.1997 in connection with Complaint Case No. 224/96 against the petitioner is illegal, invalid and bad in the eye of law and is liable to be quashed. 6. It is contended that the complainant examined six witnesses, including himself, but not a single witness stated in his evidence under Section 202, Cr PC as to what act was committed by the petitioner during the course of alleged occurrence. 6. It is contended that the complainant examined six witnesses, including himself, but not a single witness stated in his evidence under Section 202, Cr PC as to what act was committed by the petitioner during the course of alleged occurrence. According to the learned counsel for the petitioner, the present complaint is not a bona fide prosecution and is undoubtedly a counterblast to Rupauli P.S. Case 32/96 lodged by the C.O. in an effort to destroy the police case and also to satisfy their vengeance. He further contended that in any view of the matter, the petitioner is a public servant and on the date of occurrence he was discharging his official function and was asked by his superior officer to accompany him and the police force for removing encroachment from the public land and even if any offence is found to have been committed bythe petitioner, then also he is protected under the provision of Section 197, Cr PC and no Court could have put the accused person on trial without necessary sanction obtained under Section 197, Cr PC from the authority entitled to remove the petitioner from service i.e. the State Government. 7. Despite service of notice upon the complainant (opposite party No. 2) he has not bothered to appear and contest this miscellaneous application. 8. Learned counsel for the State has not been able to show that the act of the petitioner, as alleged, was not in discharge of his official duty for which sanction of the competent authority under Section 197 of the Code of Criminal Procedure, was must before taking of cognizance. He, however, contended that the sanction can be accorded at any stage and it would not invalidate criminal prosecution if the sanction is accorded at a later stage. 9. I am unable to accept the said submission of the learned counsel for the State. The Supreme Court in the case of Abdul Wahab Ansari V/s. State of Bihar, reported in 2001 (1) East Cr C 50 (SC) : 2001 (1) PLJR (SC) 13, has held that there is no requirement that an accused should wait for taking the plea of sanction till the charges are framed. According to the Apex Court, sanction is a prohibition against institution of the proceedings and its applicability must be judged at the earliest stage of the proceeding. According to the Apex Court, sanction is a prohibition against institution of the proceedings and its applicability must be judged at the earliest stage of the proceeding. It has been held by the Apex Court that when law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. According to the Apex Court, there should not be any bar for the accused producing relevant documents and materials, which will be ipso facto admissible, for adjudication of the question of sanction. The Apex Court said that no doubt, in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. In other words, there must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. And applying to the facts of the present case, I have no hesitation to come to the conclusion that the petitioner had been directed by the Circle Officer as per the direction given by the District Magistrate and Sub-Divisional Officer for removing the encroachment over the public land, which was settled with the settlees and in course of discharge of his duty, he went there along with other officials and removed the encroachment as alleged. 10. However, learned counsel for the State has not been able to show any such overt act even alleged against this petitioner which, in the facts and circumstances, can be said to be not in discharge of his official duty. 10. However, learned counsel for the State has not been able to show any such overt act even alleged against this petitioner which, in the facts and circumstances, can be said to be not in discharge of his official duty. In that view of the matter, this Court finds that the provision of Section 197(1), Cr PC applies to the facts of the present case and as the learned counsel for the State has failed to show that the sanction is there for taking cognizance, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the petitioner, it will be an abuse of the process of the Court, as held by the Apex Court in the case of Abdul Wahab Ansari V/s. State of Bihar, (supra). 11. Accordingly, this miscellaneous application is allowed and the criminal proceeding so far the petitioner is concerned is hereby quashed.