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2007 DIGILAW 953 (PAT)

Nagendra Choudhary v. State Of Bihar

2007-05-16

GHANSHYAM PRASAD

body2007
Judgment 1. This application under Sec. 482 of the Code of Criminal Procedure has been filed to quash the order dated 10.1.1998 passed by the Judicial Magistrate, Jehanabad in complaint case no. 185 of 1996 as well as the entire criminal proceeding arising out of the said complaint case thereby the cognizance under Sections 147, 380, 500 and 504 of the Indian Penal Code has been taken against the petitioner and others. 2. Heard learned counsel for the petitioner as well as Opposite Party no.2. 3. Two named police officers and five unnamed police constables of Arwal police station have been arrayed as accused in this case. The petitioner is accused no.2, who was then Dy. Superintendent of Police, Arwal. The allegation in the complaint petition is that all the accused persons entered into Thakurbari of the complainant and began to abuse him and threatened to withdraw the case filed by him against Ex officer-in-charge of Arwal police station. The accused no.1, the then officer-in-charge of Arwal police station entered into the room of Thakurbari and took away cash Rs. 25,000/-, golden chain, bangles including crown of lord Krishna and also mauzer rifle with cartridges. 4. Submission of learned counsel for the petitioner is that the entire case is false and baseless. The real fact is that the complainant was an accused in a murder case being Arwal P.S. Case No. 78 of 1996. On 18.6.1996 the officer-in-charge, the accused no.1 along with armed force went in Thakurbari for arrest of the complainant. He resisted the arrest for which the police applied force and for safety reason also seized his arms and cartridges and deposited the same in Police Malkhana. The petitioner, who was the then Deputy Superintendent of Police had no role to play. It is further submitted that the allegation levelled against the petitioner in the complaint petition also does not disclose any specific role played by this petitioner. In support of his contention learned counsel has filed supplementary affidavit annexing the relevant photo copy of the order-sheet of the aforesaid murder case, its charge-sheet and the copy of the relevant entry in the case diary. 5. Learned counsel for the petitioner referring to Sec. 197 of the Code of Criminal Procedure submitted that the alleged offence was committed in course of due discharge of official duty to execute the warrant of arrest against the complaintant. 5. Learned counsel for the petitioner referring to Sec. 197 of the Code of Criminal Procedure submitted that the alleged offence was committed in course of due discharge of official duty to execute the warrant of arrest against the complaintant. therefore, no case can be lodged against the petitioner and other police officers without prior sanction of the appropriate authority of the State Government. 6. On the other hand, learned counsel for opposite Party no.2 submitted that the petitioner has approached this Court at a very belated stage. Cognizance was taken in the year 1998 and this petitioner has come in Court after eight years. 7. Contention raised by Opposite Party is factually correct. However delay is no bar to exercise the power conferred under Section 482 of the Code of Criminal Procedure in order to prevent the misuse of the process of the court or otherwise to secure the ends of justice. It depends upon the facts and circumstances of each case. No straight jacket formulae or rule can be laid down for application or refusal to exercise the inherent power conferred under Section 482 of the Code of Criminal Procedure on the ground of delay. 8. In this case the petitioner has approached this Court at belated stage. The cognizance was taken in the year. 1998. This petitioner has filed the instant application in the year 2006 i.e. after eight years. However, sufficient explanation has been given for delay in approaching this Court. This petitioner obtained bail. Thereafter due to cadre division the petitioner was transferred to State of Jharkhand. In the meantime the complainant also entered into compromise with this petitioner duly attested by both parties and their lawyers (annexure-3). Later on the complainant resisted from the compromise as a result of which the petitioner filed this application at belated stage. 9. So far the merit of the case is concerned mere persual of the complaint petition it would appear that there is no specific allegation against this petitioner. He has been arrayed as accused simply because he was the Deputy Superintendent of Police at the relevant point of time. All allegations of manhandling or theft are against the officer-in-charge of Arwal. It further appears from the document that actually the police party had gone to execute warrant of arrest against the complaint who was accused in a murder case. All allegations of manhandling or theft are against the officer-in-charge of Arwal. It further appears from the document that actually the police party had gone to execute warrant of arrest against the complaint who was accused in a murder case. In course of execution of warrant of arrest the alleged occurrence took place. There is no allegation of causing any injury or bodily injury to the complainant apart from theft and mahandling. The allegation of theft has been superadded to make the offence serious. The arms of the complainant have not been stealthily taken away rather it was seized and kept in Police Malkhana for sefety through seizure list. 10. In the aforesaid case of murder the complainant has not only been charge-sheeted but the charge has also been framed against him. The copy of the charge-sheet, charge and case diary have been annexed with the supplementary affidavit. The complaint case has been filed by the complainant after arrest and remand in the aforesaid murder case. The genesis of the alleged occurrence also appears to be inherently absurd. In the complaint petition the year of institution of the case against Ex-officer in charge has not been mentioned. However, it has come in the statement of C.W. No.2, Shiv Lakhan Ram that the case had been lodged ten years ago.lt clearly goes to show that the allegation of coercing the complainant for compromise of that case has been alleged just to make out a case of motive. 11. The other important point raised by the learned counsel for the petitioner is bar of Sec. 197 of the Code of Criminal Procedure. The admitted fact is that the petitioner is a government servant. The alleged occurrence took place in course ol execution of warrant of arrest against the complainant. Therefore, the alleged occurrence was committed by the petitioner in discharge of official duty. Sec. 197 of the Code of Criminal Procedure provides protection and immunity of public servant from prosecution except with the prior sanction of the authority of State or Central Government as the case may be and it imposes bar on the court to take cognizance of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty except with the previous sanction of the concerned authority. There are catena of decisions on this point. There are catena of decisions on this point. Sec. 197 of the Code of Criminal Procedure is to protect the public servant from malicious and vexatious prosecution. The other admitted fact is that there was no injury on the person of the complainant. 12. Thus, from the above discussion it is quite apparent that this petitioner has wrongly been implicated in this case to wreck vengeance for arrest by the police in execution of warrant of arrest. It is a fit case for exercise of inherent power conferred under Sec. 482 of the Code of Criminal Procedure to prevent the abuse of process of the court and secure the ends of justice. 13. This application is accordingly allowed and criminal proceeding arising out of Complaint case no. 185 of 1996 as well as order of cognizance against this petitioner only is hereby quashed.