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2012 DIGILAW 400 (PAT)

Rama Kant Prasad v. State of Bihar

2012-03-05

RAKESH KUMAR

body2012
ORDER Heard Shri Surendra Prasad Singh, learned counsel for the petitioner, Shri Hirday Prasad Singh, learned Additional Public prosecutor, appearing on behalf of opposite party no.1/State and Shri Abhay Kumar Singh, learned counsel, who has appeared on behalf of opposite party no.2/complainant. 2. The sole petitioner, who was at the relevant time Officer-in-Charge of Kadam Kuan Police Station, Patna, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 18.3.2006 passed by learned Sub Divisional Judicial Magistrate, Patna in Complaint Case No.1902 (C) of 2005, whereby the learned Magistrate has taken cognizance of offence under Sections 500 and 501 of the Indian Penal Code. 3. Short fact of the case is that the opposite party no.2, who is by profession an advocate, filed a complaint in the court of Chief Judicial Magistrate, Patna, which was registered as Complaint Case No.1902(C) of 2005 on 6.7.2005, alleging therein that the petitioner, being Investigating Officer of Kadam Kuan P.S. Case No.443 of 2005 registered for the offence under Sections 386, 387, 307, 427 and 120B of the Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act, had recorded incorrect and false statement of witnesses under Section 161 of the Code of Criminal Procedure. At this moment, it is relevant to record that in Kadam Kuan P.S. Case No.443 of 2005, own brother of the complainant was one of the named accused along with one another and other un-known persons. This was not only case against him, but as stated in paragraph-10 of the present petition, he was accused in number of serious cases, particularly with regard to demand of rangdari from the traders of the locality. The complainant, who is brother of one of the main accused in Kadam Kuan P.S. Case No.443 of 2005, has further asserted that during investigation in paragraph-21 of the case diary, the petitioner disclosed the name of the complainant and his father to show that they were creating terror in the mind of general traders and as such the petitioner had committed offence under sections 500 and 501 of the Indian Penal Code. In the said case i.e. Kadam Kuan P.S. Case No.443 of 2005, after conducting investigation, police after getting approval from the superior officers, filed charge sheet on 2.8.2005 against brother of the complainant, namely, Ravi Yadav, one Ajay Yadav and father of the complainant namely Dhanni Lal Yadav and investigation in respect of other accused persons was kept pending. Before filing of the charge sheet, the complainant filed aforesaid complaint case on 6.7.2005 as indicated above. 4. Learned counsel for the petitioner, while assailing the order of cognizance, submits that the learned Magistrate, without application of mind, has passed the order of cognizance in a mechanical manner. He further submits that the complainant was an advocate and in support of complaint petition, witnesses, who were examined, were none else, but advocate of Civil Courts. He further submits that on perusal of the entire complaint petition, no offence is made out due to the reason that whatever material was collected in Kadam Kuan P.S. Case No.443 of 2005 by the petitioner, was collected while discharging his official duty being an Investigating officer and as such it has been prayed to set aside the order of cognizance and entire proceeding in Complaint Case No.1902(C) of 2005. 5. Shri Abhay Kumar Singh, learned counsel for opposite party no.2 has vehemently opposed the prayer of the petitioner. In this case, the complainant besides filing counter affidavit has also filed supplementary affidavit and brought on record number of documents to show that maliciously the petitioner, being Investigating Officer, had referred the name of the complainant to show that complainant was creating terror in the society. Learned counsel for the opposite party no.2 has also brought on record certain materials to show that brother of the complainant was also falsely made accused in an another case i.e. Kadam Kuan P.S. Case No.86 of 2005. The opposite party no.2 had also tried to allege some ulterior motive on informant of the said case i.e. Kadam Kuan P.S. Case No.86 of 2005 registered on the basis of self statement of a Police Officer. He submits that material collected in paragraph-21 of the case diary is sufficient to corroborate commission of offence under Sections 500 and 501 of the Indian Penal Code. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. He submits that material collected in paragraph-21 of the case diary is sufficient to corroborate commission of offence under Sections 500 and 501 of the Indian Penal Code. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the complaint petition, the court is satisfied that the complaint petition was filed with an oblique motive to put indirect pressure on the investigating officer of Kadam Kuan P.S. Case No.443 of 2005. So far as statement under Section 161 of the Code of Criminal Procedure is concerned, during trial of a case, an accused facing trial in the said case can avail opportunity to draw attention of such witnesses, if produced, under Section 162 of the Code of Criminal procedure regarding statement made before the police officer. In any event, whatever statement was recorded in a case cannot be a ground for lodging complaint against Investigating Officer that too at initial stage of a criminal case. The ground which has been taken by learned counsel for opposite party no.2 that the complainant on the date was not at all present at the place alleged by the Investigating officer since he was present in Patna Civil Court, cannot be looked into at this stage. Moreover, the complainant of the present case in Kadam Kuan P.S. Case No.443 of 2005 was not charge sheeted as one of the accused. This shows fairness on the part of the petitioner that even though before filing of the charge sheet, the opposite party no.2 had filed a complaint against the petitioner, the petitioner conducting investigation in fair manner after not collecting sufficient material for charge sheeting the opposite party no.2 had exonerated him and he had not sent up the complainant to face trial. 7. After going through the materials available on record, the court is satisfied that no offence as alleged by the complainant was made out and the learned Magistrate, in a mechanical manner, had passed the order of cognizance, which requires interference at this stage. 8. Accordingly, the order of cognizance as well as entire proceeding in Complaint Case No.1902(C) of 2005, so far as petitioner is concerned, is hereby set aside and petition stands allowed. ?