Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 529 (PAT)

Upendra Sah v. State of Bihar

2008-03-20

body2008
ABHIJIT SINHA, J.:- The two petitioners who have been implicated as accused in Complaint Case No. 706(C)/04 have prayed for quashing of order dated 27.4.2007 passed by the learned 1st Additional Sessions Judge, Circuit court, Hilas in Cr. Rev. No. 16/06 whereby he has dismissed the said criminal revision and has confirmed the order dated 9.3.2006 passed by Sri Lal Bahadur, Judicial Magistrate, 1st Class, Hilsa, in the aforesaid case whereby he has taken cognizance under sections 323, 341 and 379/34 I.P.C. 2. According to the prosecution case based on the complaint petition filed by one Ranjit Kumar, impleaded herein as Opposite Party No.2, that at around 4.30 P.M. on 17.12.2004 he was going to Patna by motorcycle and enroute accused, Upendra Sah, Officer-in-Charge, Ekangarsarai Police Station and Vijay Thakur intercepted him and the Officer-in-Charge allegedly took him to the Ekangarsarai Police Station and assaulted him with lathi whereas Vijay Thakur assaulted him with fists and slaps. It is further alleged that the accused persons had also abused his mother, Lalti Devi in filthy language whereas the Officer-in-Charge allegedly took away Rs. 10,000/- from the complainant and Vijay Thakur took away his wristwatch, gold ring and cash of Rs.3,500/- and was falsely implicated in a case of rape by petitioner No.2, Vijay Thakur with his daughter and remanded to custody. The instant complaint petition has been sent from jail to the Court of Additional Chief Judicial Magistrate, Hilsa who after examining the complainant on S.A. and the evidence of witnesses recorded at the enquiry under section 202 Cr.P.C. took cognizance. 3. It has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case due to enmity and alleged vendetta in order to defame them. In this connection it was sought to be submitted that Ekangarsarai P.S. Case No. 339 of 2004 registered under sections 376, 452, 341, 323 and 427 I.P.C. was registered at 4.30 P.M. on 17.12.2004 consequent to Pammi Kumari aged 12 years, daughter of petitioner No.2, Vijay Thakur, on allegedly being raped by the complainant herein on 16.11.2004 and again on 17.12.2004 the complainant attempting to commit rape and in the said case petitioner No.1, Upendra Sah, happened to be the Investigating Officer. The said case after commitment to the Court of Sessions has been registered as S.Tr. The said case after commitment to the Court of Sessions has been registered as S.Tr. No. 231 of 2005 wherein the petitioners and the prosecutrix have been examined apart from the other witnesses and the complainant herein has been convicted under section 376 I.P.C. and sentenced to undergo R.I. for seven years vide judgment and order dated 21.8.2006. 4. It has further been submitted by the learned counsel for the petitioners that the prosecution story is quite absurd and improbable and the entire allegations levelled against the petitioners are false. It has also been submitted that so far as petitioner No.1 Upendra Sah, the Officer-in-Charge, is concerned the cognizance as against him is hit by Section 197 of Cr.P.C. as no prior sanction was obtained to prosecute him when admittedly he was the police officer who had taken charge of investigation of a criminal case against O.P. No.2 who allegedly ravished a minor girl of aged 12 years of age. 5. On the other hand, it was submitted by the learned counsel for opposite party No. 2 that the witnesses examined at the enquiry under section 202 Cr.P.C. have supported the case of the complainant and since a prima facie case was made out the learned Magistrate was justified in taking cognizance. It was also submitted that when a person is arrested illegally and assaulted by the police and a prima facie case thereunder is made out then prior sanction under section 197 of Cr.P.C. is not required- and it cannot be made an issue since the act itself is arbitrary and beyond the capacity of the official duty of the policemen. 6. Admittedly, Pammi Kumari as would appear from the Judgment of the Sessions Trial No. 231 of 2005 was raped by the complainant, Ranjit Kumar, on 16.11.2004 after she had been tied to a cot and her mouth gagged and as result thereof she had become unconscious. It also appears that on the following day at about 1 P.M. while she was going to school for taking her examination, Ranjit Kumar had caught hold of her and dragged her into a lane but she saved herself by raising alarm and biting his hand and on the statement of the victim girl Ekangarsarai P.S. Case No. 339/04 was registered. It also appears that the factum of commission of rape by Ranjit had been proved beyond all reasonable doubts and he had been convicted under section 376 of I.P.C. and sentenced to unc1ergo R.1. for seven years. 7. It will thus appear from comparison of the case of rape of the complaint petition filed by the Opposite Party No. 2 herein that he had been arrested by the Officer-in-Charge on 17.12.2004 at about 4.30 P.M. when he had already taken up investigation of Ekangarsarai P.S. Case No. 339 of 2004 and therefore the allegations of opposite party No.2 herein against the two petitioners may perhaps be prompted by the fact that he had already been arrested by the police in connection with a case of heinous offence. Since petitioner No.1 being the investigating officer of the case had arrested opposite party No.2 it was clearly a case of petitioner No.1 acting in discharge of his official duty and as such prior sanction as envisaged by Section 197 of Cr.P.C. was a condition precedent for taking cognizance against the Officer-in-Charge. Similarly petitioner No. 2 happens to be the brother of the prosecutrix of Ekangarsarai P.S. Case No. 339/04 and there were good reasons weighing with opposite party No.2 to falsely implicate petitioner No.2. 8. Having given my anxious consideration to the submissions advanced by the learned counsel for the parties I find it to be an appropriate case where the prosecution of the petitioners would amount to be an abuse of the process of the court. Accordingly, the impugned order taking cognizance as also the revisional order approving the same is hereby quashed and the application is allowed.