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Jharkhand High Court · body

2010 DIGILAW 722 (JHR)

Siddhartha Ghoshal v. State of Jharkhand

2010-07-09

D.G.R.PATNAIK

body2010
Order Heard counsel for the petitioner and counsel for the State as also counsel for the Opposite Party No.2. 2. The petitioner in this case has challenged the order of cognizance for the offences under Sections 147, 341, 343, 323, 426 and 348 of the Indian Penal Code passed by the learned court below and has also prayed for quashing the entire criminal proceeding pending in the court of the Judicial Magistrate, 1st Class, Jamtara, following the impugned order of cognizance. 3. From the facts of the case as explained by the counsel for the petitioner, it appears that the Opposite Party No. 2 had filed a complaint before the Chief Judicial Magistrate, Jamtara against the petitioner and several others alleging that the accused persons, some in police uniform and some in plain clothes had arrived at her house on different vehicles and even without issuing a prior warning, had forcibly entered into the house and ransacked the articles on the plea that they have come to the house in search of the complainant's husband and to search the house. It is also alleged that the accused persons had even misbehaved with the members of the complainant's family including the female members. 4. On the basis of the allegations in the complaint and statement of the complainant and her witnesses, the learned court below proceeded to take cognizance of the aforesaid offences against the accused persons. 5. Learned counsel for the petitioner has assailed the impugned order of cognizance on the ground that it is bad in law as well as on facts and the same has been passed by the Judicial Magistrate without proper appreciation of the facts of the case. Elaborating his arguments, learned counsel would refer to the averments in the complaint petition and the admitted fact that the accused persons, who have been named in the complaint petition, are police officials and the petitioner is the officer-in-charge of the Rupnarayanpur Police Station in West Bengal. Even as admitted, the petitioner had visited the house of the complainant in search of the complainant's husband who was wanted in connection with a case which was registered at Rupnarayanpur Police Station. Even as admitted, the petitioner had visited the house of the complainant in search of the complainant's husband who was wanted in connection with a case which was registered at Rupnarayanpur Police Station. Learned counsel argues that in view of the admitted facts, it is manifest that the petitioner, being a police officer and a public servant, had visited the house of the complainant in discharge of his official duty for investigating a case registered at his police station and before proceeding to the complainant's house, prior information, as required according to the procedure laid down, was given to the officer-in-charge of the local police station within whose jurisdiction the house of the complainant was situated. Learned counsel argues that in this view of the matter, the prohibition under Section 197 Cr.P.C. would strictly apply and without the prior sanction, as envisaged under the provisions of Section 197(1) Cr.P.C., no cognizance of any offence could be taken against the petitioner. 6. Learned counsel for the Opposite Party No.2, on the other hand, argues that there is no error or impropriety in the impugned order of cognizance as passed by the learned court below and merely because the petitioner happens to be a police officer and in-charge of the police station and had purportedly visited the house of the complainant in search of the complainant's husband, in itself would not render the impugned order of cognizance as illegal. It would be for the trial court to consider at any stage of the proceeding as to whether the acts committed by the accused are protected under the provisions of Section 197(1) of the Code of Criminal Procedure or not. Learned counsel argues further that even though the petitioner may be a Police Officer, but before visiting and intruding into the house of the complainant, it was incumbent upon him to inform the police station within whose jurisdiction the house of the complainant was situated. Learned counsel for the petitioner assures that prior to visiting the house of the complainant, not only information was given to the officer-in-charge of the Jamtara Police Station, but also permission for visiting the house of the complainant was obtained from the officer-in-charge of the Jamtara Police Station and therefore the total compliance of the procedural requirements, referred to by the counsel for the Opposite Party No.2 was duly made. 7. 7. As it appears from the submissions of the counsel for the petitioner, the main ground on which the impugned order of cognizance has been assailed is on the basis of the provisions of Section 197(1) Cr.P.C., which requires previous sanction of the competent authority before initiating any criminal proceeding against the public servant. There cannot be any dispute to the legal proposition, as laid down under Section 197(1) Cr.P.C., that previous sanction of the competent authority is a precondition for the court in taking cognizance of the offence, if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty. 8. In the case of Abdul Wahab Ansari vs. State of Bihar and Another, (2000)8 SCC 500 [2001 (1) PLJR (SC)13], while elaborating the scope and ambit of the provisions of Section 197 Cr.P.C., the Supreme Court has observed as follows:- Previous sanction of the competent authority being a precondition for the court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. 9. However, the question as raised by the counsel for the Opposite Party No. 2 is whether even assuming the provision of Section 197 Cr.P.C. applies, but at what stage can the accused take such plea? Is it immediately after the cognizance is taken and process is issued or is it only when the court reaches the stage of framing of charge? Or before passing judgment? 10. Reference in this context may be made to the judgment of the Supreme Court in the case of Birendra K. Singh vs. State of Bihar, (2000)8 SCC 498 , in which the Court had held that the objection on the question of the sanction can be raised by the accused at the stage of framing of charge and not any prior point of time. The ratio as decided by the Supreme Court in the Birendra K. Singh's case (supra) was considered by the Supreme Court in the case of Abdul Wahab Ansari (supra) and it was held by the Supreme Court that the decision in the case of Birendra K. Singh's case does not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time. 11. The same question came up again for consideration before the Supreme Court in the case of Raj Kishore Roy vs. Kamleshwar Pandey and Another, AIR 2002 S.C. 2861 [ : 2002(3) JLJR (SC)154], upon which the learned court below had also relied upon, and wherein the Supreme Court had held that "the question whether an accused official had acted in discharge of official duty or not and whether therefore sanction is necessary or not should be left open to be decided in the main judgment which may be delivered upon conclusion of trial". The above observation of the Supreme Court was• made in the context of the facts of the case before it and also on considering certain circumstances when 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 his official duty and 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 the same judgment, the Supreme Court has however reiterated that the general principle of law is that the bar under Section 197 Cr.P.C. is mandatory where the act has been done by the public servant in course of his service or in discharge of his duty. 12. Following the guidance given by the Supreme Court in the several judgments and in the light of the general proposition of law laying down the bar under Section 197 Cr.P.C., it needs to be seen as to whether on the basis of the admitted facts the petitioner could take the objection against the order of cognizance of the offence even before framing of charge? 13. 13. From the perusal of the averments contained in the complaint petition, the facts admitted are that the accused persons, including the present petitioner, upon their visit to the complainant's house, had declared themselves to be police personnel of Rupnarayanpur and Salanpur Police Stations of West Bengal and that they had come to search the house of the complainant in connection with a case which was registered at the police station. The accused persons had allegedly searched the house, and seized some articles of which admittedly they had prepared a seizure list which was forwarded to the Court of S.D.J.M. in connection with the case which was registered. Though while retreating, they had allegedly taken the complainant's son alongwith them, but later the boy was allowed to go and he returned home. 14. The petitioner had produced documents to confirm that on the alleged date of occurrence, he was posted as the Officer-in-Charge of Rupnarayanpur Police Station and that a case of theft was registered at the police station and in course of investigation, evidence was collected which had suggested the involvement of the complainant's husband and hence in course of investigation the petitioner had visited the house of the complainant not only in search of the suspect, but also for searching the house of the suspect for recovery of stolen property. The documents produced would also confirm that before visiting the complainant's house, prior information was given to the Officer-in-Charge of the local Jamtara Police Station. In the case of Abdul Wahab Ansari (supra), the Supreme Court has observed that "an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority". The documents produced by the petitioner can therefore be looked into and they do support his stand that the alleged acts complained of were committed in exercise of his jurisdiction as a public servant in discharge of his official duty. 15. The documents produced by the petitioner can therefore be looked into and they do support his stand that the alleged acts complained of were committed in exercise of his jurisdiction as a public servant in discharge of his official duty. 15. In the light of the admitted facts and in the light of the materials produced by the petitioner, it was obligatory on the part of the court below to consider as to whether there was a reasonable connection between the act and the discharge of official duty and whether the act bears such relation to the duty that the accused could lay a reasonable claim that he did it in course of performance of his duty. In the case of Abdul Wahab Ansari (supra), the Supreme Court has held that "where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command". 16. In the present case as observed, the visit of the petitioner to the house of the complainant in search of the complainant's husband and also in search of the complainant's house, was made by the petitioner in discharge of his official duty. Even it the allegations in the complaint petition may suggest that while discharging the official duty, the petitioner police officer had committed certain excesses, he would still be eligible for protection under the provisions of Section 197(1) Cr.P.C. Admittedly, there being no sanction, the impugned order of 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 court. 17. The judgment of the Supreme Court in the case of Raj Kishore Roy (supra) would not apply in the present case since the facts in the case of Raj Kishore Roy are entirely different inasmuch as the acts alleged against the public servant did not suggest that the same was committed in discharge of his official duty. 18. 17. The judgment of the Supreme Court in the case of Raj Kishore Roy (supra) would not apply in the present case since the facts in the case of Raj Kishore Roy are entirely different inasmuch as the acts alleged against the public servant did not suggest that the same was committed in discharge of his official duty. 18. In the light of the facts and circumstances and the discussions made above, I find merit in this application. Accordingly, this application is allowed. The impugned order of cognizance passed by the court below against the petitioner and the entire criminal proceeding pending against him following the impugned order of cognizance, before the Court of Sri A.K. Tiwary, Judicial Magistrate, 1st Class, Jamtara or his successor vide P.C.R. Case No. 227 of 2005 (T.R. No. 650 of 2006), is hereby quashed.