Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 192 (JHR)

Ekud Dungdung v. State of Jharkhand

2015-02-06

RONGON MUKHOPADHYAY

body2015
Judgment : R. Mukhopadhyay, J - Heard Shri A. K. Kashyap, learned senior counsel appearing on behalf of the petitioner and Shri M. B. Lal, learned counsel appearing on behalf of the opposite party No. 2. 2. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with C.P. Case No. 891 of 1999 including the order dated 28.7.1999 passed by the learned Chief Judicial Magistrate, Dhanbad by which cognizance has been taken for the offence u/s 379, 411, 420, 365, 201 and 120B of the Indian Penal Code. 3. The prosecution story as would appear from the complaint petition is that the complainant is the owner of an Ambassador car and sometimes he used to give out the said car on hire. It has been stated that on 14.5.1999, the brother of the complainant, namely, Arjun Rawani was approached by one Kalan Gaddi along with two unknown persons for taking the car on hire and after some hesitation, the brother of the complainant agreed to carry the said persons to Bihar Sharief on payment of Rs. 1900/-. It has been alleged that the brother of the complainant was informed that he would come back on 16.5.1999, but when he did not return by 19.5.1999, suspecting some foul play, the complainant reported the matter to Jharia P.S. for which Station Diary Entry being S.D.E. No. 760 dated 20.5.1999 was entered. It has also been alleged that on 20.5.1999, the complainant along with his witnesses went to Bihar Sharief in search of his brother and when they were taking breakfast on the road side, he found his car which was occupied by some strangers, but his brother could not be found. It has also been stated in the complaint petition that the car while trying to flee away, dashed with a police jeep and some persons were arrested who disclosed that the car was stolen from Jharia. On this, the police registered a case u/s 414 of the Indian Penal Code being Laheri P.S. Case No. 74 of 1999. It has also been stated therein that the police did not make any effort to arrest the other accused persons, whose names had appeared on the confessional statement of the apprehended persons. 4. On this, the police registered a case u/s 414 of the Indian Penal Code being Laheri P.S. Case No. 74 of 1999. It has also been stated therein that the police did not make any effort to arrest the other accused persons, whose names had appeared on the confessional statement of the apprehended persons. 4. The police, according to the complainant, did not properly investigate the case and deliberately with an ill-intention, submitted charge-sheet u/s 414 of the Indian Penal Code without there being any mention with respect to the brother of the petitioner. 5. The learned court below after conducting the enquiry, as required u/s 202 Cr.P.C. by examining the witnesses as well as the complainant on Solemn Affirmation, was pleased to take cognizance for the offences punishable u/s 379, 411, 420, 365 and 201 and 120B of the Indian Penal Code vide order dated 28.7.1999. 6. The learned senior counsel for the petitioner has assailed the impugned order and submitted that the order taking cognizance dated 28.7.1999 disclosed total non-application of mind on the part of the cognizance taking court, as cognizance was taken mechanically without considering the statement made in the complaint petition. He has further submitted that the complaint petition does not reveal any offence, which has been committed by the present petitioner. He further submits that the petitioner was, at the relevant point of time, a Sub Inspector of Police and has conducted investigation in connection with Laheri P.S. Case No. 74 of 1999 and he was merely discharging his official duty for which he cannot be prosecuted in view of the safeguard as envisaged u/s 197 Cr.P.C. Accordingly, he submits that the continuation of the present proceeding would be an abuse of the process of Court. 7. Learned counsel for the opposite party No. 2 while supporting the institution of the complaint case and the subsequent order of cognizance, has submitted that when several persons were apprehended with the stolen car, the investigating officer of Laheri P.S. should have conducted the investigation taking into consideration also the fact that the brother of the petitioner, namely, Arjun Rawani was missing and instead of concentrating on the recovery of the said Arjun Rawani, the police in a perfunctory manner submitted charge-sheet for the offence punishable u/s 414 of the Indian Penal Code. He further submits that the present petitioner, who was in-charge of the investigation in connection with Laheri P.S. case No. 74 of 1999, conducted improper investigation and the acts on the part of the petitioner was not in discharge of his official duty and therefore, protection u/s 197 Cr.P.C. could not be accorded to him. 8. After hearing the learned senior counsel for the petitioner and the learned counsel for the opposite party No. 2 and on perusal of the records, I find that initially when the brother of the complainant did not return from Bihar Sharief, a case was instituted before the Jharia P.S. The case which was instituted at Laheri P.S., being Laheri P.S. case No. 74 of 1999, was with respect to the stolen property and as such the petitioner while conducting the investigation and after completion of the same had submitted charge-sheet u/s 414 of the Indian Penal Code and the said act does not make out an offence so as to prosecute the petitioner. The petitioner being the investigating officer was merely doing the duties assigned to him and as such the petitioner cannot be said to have acted beyond his capacity or has not acted in discharge of his official duty. The complainant while instituting the present complaint has tried to amalgamate the disappearance of his brother with the recovery of the stolen car. Both the issues are separate issues and the petitioner having been assigned the duties of investigating Laheri P.S. Case No. 74 of 1999, instituted for the offence u/s 414 of the Indian Penal Code, cannot be said to have acted beyond his jurisdiction. After all, if the investigation conducted by the petitioner was found to be faulty or improper or perfunctory, the complainant had other remedies. It is also to be seen here as to whether at the very threshold of the enquiry of the criminal case this Court u/s 482 Cr.P.C. can interfere in the proceedings when admittedly a proper sanction has not been obtained before prosecuting the petitioner. 9. It is also to be seen here as to whether at the very threshold of the enquiry of the criminal case this Court u/s 482 Cr.P.C. can interfere in the proceedings when admittedly a proper sanction has not been obtained before prosecuting the petitioner. 9. In this context, it would be justifiable to refer to the case of Om Prakash and others v. State of Jharkhand through the Secretary, Department of Home, Ranchi and another, reported in (2012) 12 SCC 72 , in which while considering the stage at which the plea of sanction u/s 197 Cr.P.C. is required to be taken, the Hon’ble Supreme Court has held thus:- “41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from state to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the Court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. At this point, in order to exclude the possibility of any misunderstanding, we make it clear that the legal discussion on the requirement of sanction at the very threshold is based on the finding in the earlier part of the judgment that the present is not a case where the police may be held guilty of killing Munna Singh in cold blood in a fake encounter. In case where on facts it may appear to the court that a person was killed by the police in a stage-managed encounter, the position may be completely different." 10. Therefore, after considering the entire materials available on the record including the complaint petition, this Court has the power u/s 482 Cr.P.C. to interfere in the proceeding at the very inception. Therefore, after considering the entire materials available on the record including the complaint petition, this Court has the power u/s 482 Cr.P.C. to interfere in the proceeding at the very inception. The entire allegation levelled in the complaint petition do point to the fact that the same are unimpeachable circumstances and the petitioner deserves the right to be protected u/s 197 Cr.P.C. as the entire act of the petitioner was in the discharge of his official duties and the learned court below while taking cognizance completely failed to appreciate the allegations leveled in the complaint petition, so far as the present petitioner is concerned, as the same was in discharge of his official duty. 11. In view of what has been discussed herein above, I am inclined to invoke the inherent jurisdiction u/s 482 Cr.P.C. in the present case and accordingly the entire criminal proceedings in connection with C.P. Case No. 891 of 1999 including the order dated 28.7.1999 passed by the learned Chief Judicial Magistrate, Dhanbad by which cognizance has been taken for the offence u/s 379, 411, 420, 365, 201 and 120B of the Indian Penal Code, so far as the present petitioner is concerned, is quashed and this application is allowed. Application allowed.