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2013 DIGILAW 1206 (PAT)

Basudeo Paswan v. State of Bihar

2013-10-03

GOPAL PRASAD

body2013
ORDER 1. Heard. 2. This is a petition for quashing the order dated 03.05.2012 by which complaint case has been dismissed on the ground that allegation made against them are absurd and improbable. The act alleged to have been done in discharge of official duty by the Senior Officers and hence prosecution against them is subject to sanction by appropriate authority as are protected under Section 197 and 132 of Cr.P.C. 3. The prosecution case as alleged in the First Information Report by the complainant-petitioner that there was Dharna for supply of electricity and people were demonstrating against G.M. of Electricity, B. Mukherjee. At the place of Dharna there were District Magistrate, G.M., S.P., Magistrate, Sub-Divisional Officer as well as Senior Police Officer of the rank of Dy. S.P. were present to control the law and order. It is further alleged that there was indiscriminate firing on the order of D.M., S.P., and of G.M. of Electricity. Then it is alleged that police resorted to lathi charge upon the public. It is further alleged that police officer like S.P. and other officers also indulge in firing causing injury to one Subul. It is further alleged that due to firing the complainant received injury on his right thumb. It is further alleged that Bipin Kumar, S.P. Jitendra Singh Gangwar, Satya Narayan Srivastava, S.D.O., Ajay Mishra, O/C Kahalgaon and V. N. Jha, Dy. S.P. came to the complainant asked whether he wants to be Hero and when the petitioner disclosed his name as Basudeo Paswan then they abused him by calling his caste name, “Dusadh has become Neta” and they assaulted by slap and fist. It is further alleged that by firing of the police personnel some persons were injured and some died so complaint petition has been fled by making the accused as District Magistrate, S.P., Magistrate, Officer-in-Charge, Dy. S.P. and S.D.O. and General Manager of N.T.P.C. 4. On the complaint the enquiry proceeded under Section 200 and 202 of Cr.P.C., the complainant and witnesses were examined on oath. Learned trial court considers the material collected during enquiry under Section 200 and 202 of Cr.P.C. as well as the case diary of Khalgaon P.S. Case No. 13 of 2008 produced by prosecution. On the complaint the enquiry proceeded under Section 200 and 202 of Cr.P.C., the complainant and witnesses were examined on oath. Learned trial court considers the material collected during enquiry under Section 200 and 202 of Cr.P.C. as well as the case diary of Khalgaon P.S. Case No. 13 of 2008 produced by prosecution. The learned Magistrate taking into consideration the fact and circumstance as exaggerated from the enquiry under Sections 200 and 202 of Cr.P.C. by their examination and cross-examination of the witnesses that there was demonstration by 7000 to 8000 thousand people for supply of electricity. The demonstrators jammed the rail road. There was slogan shouting. There was stampede. The D.M., S.P., S.D.O., S.D.P.O., Officer-in-Charge and Magistrate all were pacifying the people to maintain peace. The activists were violating the prohibitory order under Section 144 of Cr.P.C. The activists become violent resorting to violence and aggressive and attack police force by brick batting and pelting stone. This lead to lathi charge, use of tear gas but situation become uncontrollable and they set on fire in police jeep and attack the police force and administration seeing the situation beyond control the Magistrate and police resorted to firing. Taking into consideration the situation the Magistrate found that there is prima facie material to the act of the accused persons comes under the purview of Section 197 of Cr.P.C. as the act alleged appears to have been done in the discharge of official duty as well as comes under Section 132 of Cr.P.C. and further hold that the allegation made by the complainant that he was apprehended and asked by D.M., and S.P. about his name and when he disclosed his name as Basudeo Paswan, then the D.M., S.P., S.D.O. and S.D.P.O. abuse him by calling his caste name is not only manifestly absurd but is inherently improbable and hence dismissed the complaint holding that there is no ground for proceeding on the complaint and dismissed the complaint under Section 203 of Cr.P.C. 5. Learned counsel for the petitioner however contends that in this case, there is nothing in the discharge of official duty to murder citizen in the name of discharge of official duty. It is further submitted that in democracy, citizen have right to demonstrate with regard to their grievance. Learned counsel for the petitioner however contends that in this case, there is nothing in the discharge of official duty to murder citizen in the name of discharge of official duty. It is further submitted that in democracy, citizen have right to demonstrate with regard to their grievance. This right has been given to the citizen in democratic State and since this welfare State and hence official cannot be given to right to murder in discharge of their official duty. It is further submitted that sanction may not be required to be looked into at the stage of taking cognizance and the question of sanction can be taken into consideration at the latter stage. 6. Learned counsel for the State however contends that even in democratic or welfare State, the citizen of public can not take law in his own hand and resorted to violence and the public have no right to obstruct public pathway and rail road. They have only right to peaceful demonstration, but not resort to violence and damaging the public property and attack the police party and constitution has given jurisdiction on State to impose reasonable restriction in exercise of their right or even fundamental right. It has further been contended that if there is any doubt whether act done on the act was to have been done act alleged in the discharge of official duty then the issue of sanction can be decided at latter stage but if the act alleged on the face of the F.I.R. is apparent to have been done in discharge of official duty then the question of sanction is required to have been looked at the stage of taking cognizance itself. The mere perusal of the complaint itself makes out a case that act was done in discharge of official duty, the court may require to ask to fulfill the condition before taking cognizance. Hence the order taking cognizance in such cases is barred. 7. On rival contention, the question for consideration is whether the act alleged to be done in discharge of official duty and whether the allegation made suffers from inherent improbability and manifestly absurd that no prudent man will believe the allegation made in the complaint. Hence the order taking cognizance in such cases is barred. 7. On rival contention, the question for consideration is whether the act alleged to be done in discharge of official duty and whether the allegation made suffers from inherent improbability and manifestly absurd that no prudent man will believe the allegation made in the complaint. However, taking into consideration the fact and circumstance of the case, the complaint petition was filed and enquiry was made under Section 200 and 202 of Cr.P.C. On bare perusal of the complaint and enquiry, it is apparent that act alleged to have been done by the accused persons are said to have been done in discharge of their official duty. The case of the complainant itself shows that there was demonstration and more than 7000-8000 persons were present in Dharna and they blocked the road and officer in the rank of D.M. and S.P. and other higher officials were present in pursuing the person resorted in Dharna and to remove obstruction and to adhere to the prohibiting order but defying the same they resorted to violence, compelling to police to resort lathi charge. Hence it was held that act done by the accused persons, was in their discharges of their official duty. It is apparent that public obstructed them to discharge of their official duty. Section 197 of Cr.P.C emphatically provides that no Court shall take cognizance of any offence alleged to have been committed by public servant in discharge of official duty or purporting to act in the discharge of his official duty, except with the previous sanction with regard to the person of the public servant, not removed from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while or purporting to act in the discharge of his official duty. Here the accused are Senior Officer of the rank of D.M., S.P., S.D.O and S.D.P.O. etc. are all officers of the Government as their service can only be removed by the State and hence protection is applied to them. 8. Here the accused are Senior Officer of the rank of D.M., S.P., S.D.O and S.D.P.O. etc. are all officers of the Government as their service can only be removed by the State and hence protection is applied to them. 8. However, in decision reported in 2012 (6) SCC page 228, para 43 has been mentioned that “the question to examine as to whether the sanction is required or not under a statute has to be considered at the time of taking cognizance of the offence and not during enquiry or investigation”. It has further been observed in para 44 that “there is a marked distinction in the stage of investigation and prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be kept in mind that the cognizance is taken of the offence and not of the offender. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralizes the honest officer”. 9. It is apparent from the complaint and fact collected in enquiry under Sections 200 and 202 of Cr.P.C. that it is prima facie found that act alleged has reasonable connection with discharge of duty. The protection under Section 197 of Cr.P.C. cannot be refused on the ground that cognizance can be considered at a later stage when from the complaint it is apparent that act alleged done in discharge of official duty. If on bare perusal of the complaint, it is not clear whether act alleged has been done in official duty, in that circumstance, the cognizance can be considered at a latter stage when the fact comes on record that alleged act in the complaint was done in official duty. 10. Further here under the fact and circumstance, when the act alleged on bare perusal of the complaint, it discloses that act done or act alleged to be done when they are discharge of their official duty then there was no question of withholding the sanction and taking cognizance without sanction. 11. Learned counsel for the petitioner however contends that in democratic set up citizen has right to demonstrate and act alleged was done is violation of official duty. 11. Learned counsel for the petitioner however contends that in democratic set up citizen has right to demonstrate and act alleged was done is violation of official duty. However, from the fact it is apparent that the people resorted to violence while on Dharna and accused were pacifying the demonstrator and when the persuasion to violence broke out the police had to resort to lathi charge and firing. It is apparent in such a situation the police officer in discharge of duty may take to use force which may be an offence for prosecution for which sanction is necessary. Even assume that accused persons have exceeded official duty or discharge of their official duty it has been held in various decisions of Apex Court for their reasonable discharge of official duty then it does not matter even if act exceeds what is necessary for the duty. 12. Decision reported in 2012 (6) SCC 228 , the case of killing of five persons in encounter, though, it was alleged that five persons killed were civilian and were killing by army personal in fake encounter. The matter investigated by the C.B.I. and even after submission of the charge sheet at the time of taking cognizance, question of sanction was raised and after taking into consideration the various decisions the Apex Court. It is held in (para 82) “if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or it inseparably connected with discharge of his duty, he becomes entitled for protection of sanction”. 13. Hence having regard to the fact and circumstance, there is no merit in the submission that the protection under Section 197 of Cr.P.C. is not applicable in fact and circumstance due to death of some persons. The act alleged in the fact and circumstance has reasonable connection and inseparably connected with the discharge of duty. The fact that during demonstration against prohibitory order, the demonstrator resorted to violence and then the police under order of Magistrate did the act of resorting to lathi charge and firing to maintain public tranquility and peace. The situation demanded police officer to use force in discharge of duty. In such a situation the act done has reasonable connection in discharge of official duty to maintain peace. The situation demanded police officer to use force in discharge of duty. In such a situation the act done has reasonable connection in discharge of official duty to maintain peace. Hence in such a circumstance, act alleged the accused is entitled for protection under Section 197 of Cr.P.C. The Section 132 of Cr.P.C. also provides protection to police officer for act done under Section 129, 130 and 131 of Cr.P.C. Section 129 of Cr.P.C. provides that Magistrate and police officer empowered to dispersed unlawful assembly proceed to disperse the assault by force and for the use of force they are protection from prosecution under Section 132 of Cr.P.C. 14. Hence under the fact and circumstance, the accused are required for protection under Section 197 and 132 of Cr.P.C. of the prosecution and are entitle to protection under Section 197 as well as under Section 132 of Cr.P.C. 15. Hence having regard to the fact and circumstance, I do not find any merit to interfere with order taking cognizance. Accordingly, the petition is dismissed.