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2012 DIGILAW 1681 (JHR)

Sheo Bachan Singh v. State of Jharkhand

2012-12-05

D.N.UPADHYAY

body2012
Judgment D.N. Upadhyay, J. The instant W.P.(Cr.) No. 186 of 2010 and the Cr. M.P. No 146 of 2010 have been filed for quashing the entire criminal proceeding arising out of Complaint Case No. 287 of 2008 and also the order dated 9.7.2009 passed by Shri R. K. Mishra, learned Judicial Magistrate, Dhanbad, whereby the petitioners have been directed to face trial for the offence under Section 323 I.P.C. 2. The brief fact appearing from the complaint is that on 31.1.2008, the complainant Chanda Devi along with Malti Devi went to the office of the B.D.O., Govindpur to make a request to do arrangement for employment of Malti Devi because construction of Check Dam is going on her land. Thereafter B.D.O., Manoj Kumar (petitioner in Cr. M.P. No. 146 of 2010) told the complainant and her companion to meet with Shiv Bachan Singh (petitioner in W.P.(Cr.) No. 186 of 2010) who was then Block Agriculture Officer. The complainant and Malti Devi approached Shiv Bachan Singh, who asked to arrange Rs.55,000/- for getting employment. Again the complainant went to B.D.O. and disclosed that they are not capable of making arrangement for Rs. 55,000/- and they are entitled to get employment against the land acquired for construction of Check Dam. Thereafter they were abused and assaulted with fists and slaps and hence the matter was reported to Govindpur P.S. in writing, but no action was taken against the accused persons and thereafter this complaint being Complaint Case No. 287 of 2008 was filed in the Court of Chief Judicial Magistrate, Dhanbad in which after holding inquiry, cognizance under Section 323 I.P.C. was taken against the petitioners and they were directed to face 2.trial for the offence punishable under Section 323 I.P.C. vide impugned order dated 9.7.2009. 3. It is contended that the complainant with her associates have created scene in the office and they wanted to get the contract work of Check Dam in their favour. Since they had caused hindrance to the petitioner in discharge of their official duty, the matter was brought to the knowledge of the Deputy Commissioner, Dhanbad and after that F.I.R. against the opposite party No. 2 being Govindpur P.S. Case No 29 of 2008 under Sections 353, 504 and 34 I.P.C. was registered. In that case, after submission of charge-sheet, cognizance has also been taken against the opposite party No. 2. In that case, after submission of charge-sheet, cognizance has also been taken against the opposite party No. 2. It is further submitted that Complaint Case No. 287 of 2008 was filed as a counter blast to Govindpur P.S. Case No. 29 of 2008 with an intention to harass and humiliate the Government Officials and also to create pressure upon them to withdraw the case instituted against the opposite party No. 2. It is pointed out that order dated 9.7.2009 by which the learned Judicial Magistrate has directed the petitioners to face trial under Section 323 I.P.C. is not sustainable in the eye of law and it is purely malicious prosecution and such prosecution cannot be permitted to be continued against Government Officials. The counsel appearing for the petitioners have relied upon the judgments in the case of Deo Lakhan Paswan v. State of Jhrkhand & another, reported in 2012(1) JLJR 206 (SC) and Anjani Kumar v. State of Bihar and another reported in (2008) 5 SCC 248 . Relying on the above judgments it was submitted that no information was lodged at Govindpur P.S. on the date of incident i.e. 31.1.2008. On that very date neither Sanha nor F.I.R. was registered against the petitioners on the basis of any information lodged by the O.P. NO. 2. The complaint was filed in Court on 13.2.2008 i.e. after 10 days of the incident and in between, the matter was not informed to any superior police officials. It was further submitted that complaint was filed against the Government Officials as a counter blast to action taken by them in their official capacity and such complaint was an afterthought and therefore, criminal prosecution on such complaint is required to be quashed as held by their lordships in the judgments of Deo Lakhan Paswan and Anjani Kumar (supra). 4. On the other hand, learned counsel appearing for O.P. No. 2 vehemently opposed the argument and submitted that no delay occurred in lodging the complaint. It will be apparent from Annexure-A 3.annexed with the counter filed in W.P.(Cr.) No. 186 of 2010 that the O.P. NO. 2 had lodged written report at Govindpur P.S. on the date of incident itself i.e. on 31.1.2008 but on that very date no action was taken against the petitioners. When she pursued the matter, the receiving of the written report was given on 2.2.2008. 2 had lodged written report at Govindpur P.S. on the date of incident itself i.e. on 31.1.2008 but on that very date no action was taken against the petitioners. When she pursued the matter, the receiving of the written report was given on 2.2.2008. The O.P. No. 2 also raised the issue under the political forum of Lok Janshakti Party and the matter was informed to the Deputy Commissioner vide letter No. LJP 08/5 dated 1.2.2008 (Annexure-B). He has also referred Annexure-C, the paper cutting, in which the issue raised by the O.P. No. 2 was appearing. Again complaint was made to Hon'ble Chief Minister, State of Jharkhand vide letter dated 7.2.2008 on the letter head of Jharkhand Pradesh Lok Janshakti Party (Annexure-D). Therefore, the judgments in the case of Deo Lakhan Paswan and Anjani Kumar (supra) are not applicable in the present case. There was no delay in lodging the written report. Since the accused persons named were the Government Officers, the police did not taken action and tried to save them and for that, the receiving of the written report was not given to the O.P. No. 2 on 31.1.2008. When the issue was raised by the Lok Janshakti Party, the police had given receiving of the written report on 2.2.2008. Thereafter the matter was brought to the notice of Deputy Commissioner as well as to the Hon'ble Chief Minister by subsequent letters written to them. When no action against petitioners was taken, the O.P. No. 2 had left with no option but to file complaint which she did and filed the complaint in the Court of learned Chief Judicial Magistrate, Dhanbad on 13.2.2008 and therefore, the question of delay does not arise, rather the matter was agitated right from the concerned P.S. and up to the level of Hon'ble Chief Minister of the State of Jharkhand. The learned Chief Judicial Magistrate has rightly taken cognizance against the petitioners after holding inquiry and considering the evidence adduced. There is no merit in writ petition and criminal miscellaneous petition. 5. Having heard rival submission and also perusing the record, I do agree that protection is given to the Public Servant against institution of possibly vexatious criminal proceeding for offences alleged to have been committed by them while they are acting or purporting to act as Public Servants. There is no merit in writ petition and criminal miscellaneous petition. 5. Having heard rival submission and also perusing the record, I do agree that protection is given to the Public Servant against institution of possibly vexatious criminal proceeding for offences alleged to have been committed by them while they are acting or purporting to act as Public Servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause but then such protection has to be considered within 4.certain limits. It should be available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, which constitute offence, the excess will not be considered to protect him from criminal prosecution. We have to keep in mind that in the garb of discharge of official duty no public servant should be allowed to commit offence. Coming to the facts of the case, the contention made in the complaint no where indicate that the act done by the petitioners was done in discharge of their official duty. The allegation which was enquired into speaks about demand of illegal gratification. When such demand was objected, the complainant was manhandled, abused and assaulted. Considering statement of witness, impugned order was passed. The next point that the averments made in the complaint was afterthought and there was delay in lodging the complaint, cannot be sustained in view of the document annexed with counter affidavit. The written complaint was lodged at Govindpur Police Station on the date of incident itself i.e. on 31.1.2008. When the police did not register a case, the matter was agitated on subsequent dates at different level. 6. In view of the facts available on record and discussion made above, I don't find merit in these applications and the same stand dismissed.