Research › Search › Judgment

Patna High Court · body

2009 DIGILAW 531 (PAT)

Md. Zafeeruddin Khan v. State of Bihar

2009-04-02

body2009
ORDER The petitioner, the Officer Incharge of Parbalpur P.S. in the district of Nalanda, who alongwith another has been arrayed as an accused in Complaint Case No. 625(C) of 2005 has prayed for the quashing of the order dated 9.3.2006 passed therein by the learned A.C.J.M., Hilsa, wherein he has taken cognizance of offences under Sections 341, 323, 504 and 166/34 IPC against both the accused including the petitioner. 2. The aforesaid complaint was lodged by one Swami Ramanand @ Ramanand Singh, impleaded herein as O.P. No.2, on 31.10.2005 inter alia stating that his son Gyan Ranjan Sharma is employed as a Shiksha Mitra in the Primary School, Mardan Bigha within Parbalpur P.S. and on 30.10.2005 which was a Sunday and the school was closed, the Headmaster of the school one Rajendra Prasad, went to the school at around 11 A.M. to supervise the white washing work being carried out. It is said that on reaching the School the Headmaster detected that the lock of the store room had been broken open and foodgrains stored therein were missing. Accordingly he went to the Police Station for lodging a case and enroute he met Gyan Ranjan in the bazar who along with witnesses Rameshanand Singh and Parshuram Singh accompanied the Headmaster to the Police Station. It is alleged that the petitioner herein demanded a sum of Rs. 1,000/- for registering the case and when Rajendra Prasad as also Gyan Ranjan refused to dole out the desired amount the petitioner is alleged to have directed co-accused Suvinder Yadav to lock-up Gyan Ranjan in the Hajat. It is further alleged that the said Suvinder Yadav while locking Gyan Ranjan snatched the golden chain from the neck and Rs. 1,000/- from his pocket. It is further alleged that before locking up Gyan Ranjan the accused persons stated that he was a named accused in Parbalpur P.S. Case No. 216 of 2005, wherein he had not obtained bail and that a warrant had been issued against him in respect of G.R. No. 1219 of 1998. Gyan Ranjan is said to have told the petitioner that he had been granted bail in both the cases and the recall order had been delivered by his father in the Police Station on 1.10.2006. It is alleged that the petitioner started abusing Gyan Ranjan in filthy language and kept him in the, lock-up. Gyan Ranjan is said to have told the petitioner that he had been granted bail in both the cases and the recall order had been delivered by his father in the Police Station on 1.10.2006. It is alleged that the petitioner started abusing Gyan Ranjan in filthy language and kept him in the, lock-up. It is said that on being informed of the incident by the witnesses the complainant armed with the photocopies of the recall order went to the Police Station in company of the witnesses where he was informed by Suvinder Yadav that the petitioner was sleeping and he could be met only at 5 P.M. and when he returned again at 5 P.M. and showing the photocopy of recall order requested for release of his son, the petitioner is said to have flown into a rage and abusing him in filthy language assaulted him with slaps and fists and thereafter released his son. It is further alleged that when Gyan Ranjan demanded return of the gold chain and money that had been taken from him, the petitioner refused to return the same and also threatened to implicate him and his father in a false case if he persisted with his demand. 3. It has been submitted on behalf of the petitioner that it was apparent from the perusal of the complaint petition that two cases were pending against Gyan Ranjan and in respect of G.R. No.1219 of 1998 an arrest warrant had been issued and when the photocopies of recall order was shown to him he immediately released Gyan Ranjan. On these premise it was submitted that it would be apparent that no offence had been made out against the petitioner and that in view of the pending arrest warrant he had put Gyan Ranjan in the lock-up in discharge of his official duty and the petitioner cannot be prosecuted for the same without prior sanction of the State Govt. which is a condition precedent under Section 197 Cr.P.C. It was further sought to be submitted that the Principal of the School had neither lodged any case regarding the theft of foodgrains from the store of the school nor he had deposed as a witness in support of the complaint case although he was made to figure as a witness. 4. 4. Referring to the annexures filed with the supplementary affidavit it was further sought to be submitted with reference t6 the entries made in the station diary dated 30.10.2005 which is Annexure-4 that it would be apparent from entry nos. 467 and 468 therein that Gyan Ranjan had been arrested at 4 P.M. from the Parbalpur Bus Stand in view of the arrest warrant against him in connection with G.R. No. 1219 of 1998 and that he was released at 4.30 P.M. when the recall order was shown to the petitioner. It was further submitted that the allegations for offences under Sections 323 and 504 IPC were concocted with the intention to wreak vengeance. 5. Section 197 Cr.P.C. provides for protection to public servant against irresponsible, frivolous or vexatious proceedings for acts in discharge of official duties and to see that no prosecution started unless there is some foundation for the charge brought. Before invoking the section and seeking protection thereunder it is required to be shown that he is accused of an offence alleged to have been committed while acting or purporting to act in discharge of his official duty. In other words immunity from prosecution without sanction extends only to acts which can be shown to be done in discharge of official duty or purported to be done in such discharge. However, an offence arising out of abuse of official power does not require sanction. 6. In the instant case the specific stand of the complainant is that notwithstanding having been served with the recall order of the Court the petitioner had illegally detained his son in custody and had also abused, assaulted and threatened him and his son. However, the denial of illegal detention of complainant's son is found on the assertions that there was an arrest warrant against him and in pursuance thereof he was arrested from the bus stand not being aware of the fact that he had been granted bail and as soon as the recall order was shown to him, he had immediately released Gyan Ranjan. The recall order is, said to have been served on the petitioner as far back as on 1.10.2005 and the date of the alleged occurrence giving rise to the complaint case is 30.10.2005. The recall order is, said to have been served on the petitioner as far back as on 1.10.2005 and the date of the alleged occurrence giving rise to the complaint case is 30.10.2005. Therefore, the petitioner was well aware of the fact that the arrest warrant issued against Gyan Ranjan had been recalled well before the alleged occurrence. Whether Gyan Ranjan was detained in the lockup when he had accompanied the Principal to the Police Station or whether he was arrested from the Parbalpur bus stand is a disputed questions of fact which cannot be negated or accepted in the absence of cogent evidence. Such assertions can only be settled after leading of cogent evidence. 7. A perusal of the impugned order reveals that the complainant on S.A. and the complainant's witnesses had supported the complainant's case. In that view of the matter the complainant's case of Gyan Ranjan being arrested at the Police Station when he had accompanied the Principal and had refused to dole out illegal gratification for registering the case for the time being has to be accepted unless it is disproved by the leading of cogent evidence. In these circumstances the plea of the petitioner that sanction under Section 197 Cr.P .C. was a prerequisite before the prosecution could be lodged cannot be accepted since the arrest of the complainant's son could not be termed as an act which was done in discharge of official duty or purported to have been done in such discharge. That apart demanding illegal gratification or abusing, assaulting or threatening a person who opposes the demand of illegal gratification can never be termed as an act in discharge of official duty. 8. I am also not able to accept the submissions of the learned counsel for the petitioner that the non-examination of one of the witnesses cited in the complaint petition, namely, Rajendra Prasad, the Principal of the School, would render the impugned order bad in law and an abuse of the process of the Court. Cognizance has been taken under Sections 341, 323, 504 and 166/34 IPC none of these sections are exclusively triable by the Court of Sessions. Therefore, the proviso to sub-section (2) of Section 202 requiring the complainant to produce all witnesses cited in the complaint petition for their examination is not attracted. 9. Cognizance has been taken under Sections 341, 323, 504 and 166/34 IPC none of these sections are exclusively triable by the Court of Sessions. Therefore, the proviso to sub-section (2) of Section 202 requiring the complainant to produce all witnesses cited in the complaint petition for their examination is not attracted. 9. For the present suffice it to say that following the inquiry under Section 202 Cr.P.C. the learned Magistrate has formed an opinion that there was sufficient materials to proceed against the accused persons. The inquiry under Section 202 Cr.P.C. is not intended to take the place of a trial as the object thereof is not to see whether the accused is guilty but only to ascertain whether there is sufficient evidence of the charge or a prima facie case which should be proceeded with. Reference in this connection may be made to the decision in Chandradeo Vs. Prokash Chandra, reported in AIR 1963 SC 1430 . 10. For the reasons assigned above and having given my anxious consideration to the facts and circumstances of the case I am not in a position to interfere with the impugned order. Accordingly the application is dismissed.