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2013 DIGILAW 1231 (JHR)

Priya Dubey v. State of Jharkhand

2013-11-13

R.R.PRASAD

body2013
ORDER 1. This application has been filed for quashing of the order dated 30.6.2010 passed by the then learned Additional Chief Judicial Magistrate, Bermo at Tenughat in Complaint Case No. 1 of 2010, whereby and whereunder, cognizance of the offences punishable under Sections 211 and 220 of the Indian Penal Code was taken against the petitioner. 2. Before adverting to the submissions advanced on behalf of the petitioner the fact of the case needs to be taken notice of. 3. It appears that on the basis of fardbeyan given by Hiriya Devi, wife of the deceased Ram Prasad Kandu, a first information report \vas lodged as Nawadih P.S. Case No. 103 of 2008 under Section 302 of the Indian Penal Code on the allegation that while her husband Ram Prasad Kandu was present in his shop, one Narayan Kandu (accused) cousin of the deceased came over the shop. There on the point of return of the cement altercation took place between them. During that course, the accused caught hold the husband by neck and took him outside of the shop by dragging. There, he put him down on the earth and continued to press his neck. Other persons came for his rescue. The husband of the informant was taken to 'the house where he slept in the night but in morning he was found dead. 4. On such allegation, the case was registered as aforesaid. During investigation, the I.O. got the autopsy of the dead body done by the Doctor whereby Antemortem injuries were found over the front of left side of the chest and some stitches were found over some wounds. The Doctor preserved Viscera, which was subsequently, sent before Forensic Science Laboratory on 29.1.2009. On 31.1.2009, the petitioner being the Superintendent of Police directed the I.O. to submit charge-sheet under Section 304 of the Indian Penal Code with further direction to sent Viscera Report to the Court, as soon as it is made available to him. 5. On submission of the charge-sheet, cognizance of the offence was taken. Subsequently, the case was committed to the Court of Sessions. Before the Court of Sessions, an application for discharge was filed. 5. On submission of the charge-sheet, cognizance of the offence was taken. Subsequently, the case was committed to the Court of Sessions. Before the Court of Sessions, an application for discharge was filed. The Court, on placing reliance upon the materials collected during investigation, did find that there has been no material to frame charge under Section 304 of the Indian Penal Code, as the post-mortem report never docs suggest the case of being homicide. While discharging the accused, the Court did find that at the instance of this petitioner, charge-sheet has been filed maliciously. Act of malice has been found for the reason that though the accused has been arrested on 1.1.2009 but still this petitioner gave direction to the I.O. to take steps for attachment. 6. Having come to the conclusion that charge being leveled against the accused maliciously, the Court - filed official complaint against the petitioner upon which, the Court took cognizance of the offences as aforesaid, vide order dated 30.6.2010, which is under challenged. 7. Mr. Tripathy, learned senior counsel appearing for the petitioner submits that upon registration of the case of murder of Ram Prasad Kandu, the matter was supervised by this petitioner, being the Superintendent of Police. 8. During supervision, when it was found that the accused has not been arrested, a direction was issued to the I.O. to take steps for attachment of the properties, which has been taken by the Court to be a malicious act, as the accused had already been arrested on 1.1.2009 whereas the order for taking steps for attachment was passed on 11.1.2009, but the Court failed to take into account that this order could have been passed, as the La. may not have placed the fact that the accused has already been arrested on 1.1.2009. 9. In this regard, it was further submitted that it is true that the petitioner had directed the I.O. to submit charge-sheet in absence of Viscera Report as 90 days was going to be expired. In that event accused in absence of the submission of the charge-sheet, would have been released on bail, and. that while directing the La. 9. In this regard, it was further submitted that it is true that the petitioner had directed the I.O. to submit charge-sheet in absence of Viscera Report as 90 days was going to be expired. In that event accused in absence of the submission of the charge-sheet, would have been released on bail, and. that while directing the La. to submit charge-sheet, further direction was given to the I.O. that as soon as Viscera Report is made available, it should be sent to the Court immediately and thereby, it cannot be said that the accused was falsely charged, maliciously by this petitioner and this fact, would be further evident from the order passed on 31.1.2009 of which order, the Court has even taken notice of, that this petitioner did direct the I.O. to submit charge-sheet, as the petitioner had noted that the investigation is over and the Dy. S.P. had made recommendation for submission of the charge-sheet. 10. Under the circumstances, as stated above, it can easily be said that no act is there on the part of the petitioner so as to come to conclusion even prima facie that this petitioner maliciously got the accused charge-sheeted and thereby, the Court, did commit illegality in taking cognizance of the offence punishable under Sections 211 and 220 of the Indian Penal Code. Accordingly, order taking cognizance is fit to be quashed. 11. For better appreciation of the submissions advanced on behalf of the petitioner, one needs to take notice of the provision as contained in Sections 211 and 220 of the Indian Penal Code, which reads as follows:- "211. False charge of offence made with intent to injure – Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that per. False charge of offence made with intent to injure – Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that per. son, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 220. Commitment for trial or confinement by person having authority who knows that he is acting contrary to law – Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or to confinement, or keeps any person in confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." 12. Coming first to the offence under Section 220 of the Indian Penal Code, it is evident from the provision as aforesaid, that whenever corruptly or maliciously commits any person for trial or to confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, he/she shall be guilty for the offence under Section 220 of the Indian Penal Code. 13. Thus, the question does arise as to whether the act of the petitioner was malicious one or was tainted with corrupt action. 14. In this regard, I may refer to Annexure-6 (order passed on 31.1.2009), which order has even been taken notice of by the complainant. 15. From the perusal of the said order, as contained in Annexure-6, it does appear that this petitioner did direct the I.O. to submit charge-sheet for the reason that the petitioner did find that the invesetigation is complete and that there was recommendation of Dy. S.P. for submission of the charge-sheet. 16. 15. From the perusal of the said order, as contained in Annexure-6, it does appear that this petitioner did direct the I.O. to submit charge-sheet for the reason that the petitioner did find that the invesetigation is complete and that there was recommendation of Dy. S.P. for submission of the charge-sheet. 16. Further, that letter does transpire that the petitioner was quite aware of the fact that Viscera Report had not been submitted by that time. By the same letter, direction was given to submit a Viscera Report to the Court as soon as it is made available. Upon Viscera Report being made available to the I.O., the charge-sheet dated 17.2.2009, according to the learned counsel appearing for the petitioner. was sent to the learned Chief Judicial Magistrate on 13.5.2009 and this date has been taken by the complainant to be the date of the submission of the charge-sheet. 17. Since, Viscera Report was earlier to date 13.5.2009, the Court took it that this petitioner purposely withheld the Viscera Report, but the fact, as had been pointed out by the learned counsel appearing for the petitioner and which is also emerging from the record of the case that before Viscera Report was made available, this petitioner had directed the I.O. to submit charge-sheet and to submit Viscera Report whenever it is made available. 18. Under the circumstances, no material seems to be there to come to the conclusion; even prima facie, that this petitioner maliciously directed the I.O. to submit charge-sheet for the offence under Section 304 of the Indian Penal Code, though no such offence is made out. 19. At the same time, in view of the facts and circumstances stated above offence under Section 211 of the Indian Penal Code also does not get attracted. 20. Under the circumstances, the Court seems to have committed illegality in taking cognizance of the offences punishable under Sections 220 and 211 of the Indian Penal Code against this petitioner and hence, the order dated 30.6.2010, taking cognizance, is hereby set aside. 21. In the result, this application stands allowed. Application allowed.