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2015 DIGILAW 411 (JHR)

Pankaj Kumar Prasad v. State of Jharkhand

2015-03-25

RONGON MUKHOPADHYAY

body2015
ODER 1.Heard learned counsel for the parties. 2. In this application the petitioner has prayed for quashing the entire criminal proceeding in connection with Complaint Case no. 160 of 2006 including the order dated 07.11.2006 passed by the learned Chief Judicial Magistrate, Latehar, whereby and whereunder cognizance has been taken for the offence punishable under sections 147, 148, 500, 504, 506, 342, 392 and 395 of the Indian Penal Code. 3. The prosecution case in short is that a complaint case was instituted by the complainant O.P. no. 2 with allegation that on 16.10.2006, all the accused persons who are R.P.F. personnel, the petitioner being one of them and one R.P.F. constable Ramsukh Singh Yadav came on a motorcycle in civil dress and intercepted O.P. no. 2 by asking his name and address. On disclosure of his name the petitioner ordered R.P.F. constable Ramsukh Singh Yadav to arrest O.P. no. 2 which was duly done. 4. It has further been alleged that in the meanwhile one passenger car came there and some persons were clad in uniform and some in civil dress took O.P. no. 2 forcibly to Barwadih Rail Thana and thereafter the accused persons abused the O.P. no. 2 and looted his Nokia 2600 Mobile Set with SIM no. 9431528525 and a cash amount of Rs. 7,500/-. On being persuaded by several persons from Manika village the O.P. no. 2 was released but he was threatened that he would be implicated in a false case, if he chose to take any legal action against the accused persons. 5. After conducting an enquiry under section 202 of the Cr. P.C. by examining the complainant/O.P. no. 2 on solemn affirmation and four other witnesses on oath cognizance was taken by the learned Chief Judicial Magistrate, Latehar on 07.11.2006 for the offence punishable under sections 147, 148, 500, 504, 506, 342, 392 and 395 of the Indian Penal Code. 6. It has been submitted by the learned counsel for the petitioner that in fact the petitioner who was posted as Inspector at R.P.F. post Barwadih at the relevant point of time had instituted Barwadih P.S. Case no. 20 of 2006 dated 16.10.2006 against the complainant/ O.P. no. 2 being accused under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. It has been submitted that complainant/ O.P. no. 20 of 2006 dated 16.10.2006 against the complainant/ O.P. no. 2 being accused under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. It has been submitted that complainant/ O.P. no. 2 was arrested on 16.10.2006 at about 10.30 hours between Bendi and Kumandi Railway Stations and was released on personal bond on the same date at about 23.30 hours which the learned counsel for the petitioner pointed out meant that the complainant/ O.P. no. 2 was in custody of the R.P.F. personnel from 10.30 hours to 23.30 hours on 16.10.2006. It has also been submitted that personal search of Complainant/ O.P. no. 2 also led to recovery of old used Nokia Mobile 2600 bearing SIM no. 9431528525 which demolished the case of the complainant/O.P. no. 2 that the accused had looted the said Mobile Set. 7. Learned counsel for the petitioner has further submitted that in terms of section 20 of the Railway Property (Unlawful Possession) Act, 1966, the petitioner who is an Inspector of R.P.F. could not be prosecuted in view of the protection given under section 20 of the Act. 8. Learned counsel for the opposite parties on the other hand has submitted that there is a specific allegation against the petitioner of forcibly taking him away and thereafter looting his Mobile, and the acts alleged above indicate that the petitioner has committed an offence and in fact the petitioner by misusing his official position and with personal grudge has falsely implicated the complainant/O.P. no. 2 in another case. It has also been submitted that since the offence is made out against the petitioner which is apparent from perusal of complaint petition itself the present case has no legs to stand and hence the same should be rejected. 9. Having heard the learned counsel for the parties and after going through the entire records I find that in the complaint petition the date of occurrence is 16.10.2006 whereas the first information report was instituted on 30.10.2006. No reasonable explanation has been given by the petitioner with respect to delay in institution of F.I.R. It further appears that on 16.10.2006 R.P.F./ Post/ Barwadih Case no. 20 of 2006 was registered under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 against the complainant/O.P. no. No reasonable explanation has been given by the petitioner with respect to delay in institution of F.I.R. It further appears that on 16.10.2006 R.P.F./ Post/ Barwadih Case no. 20 of 2006 was registered under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 against the complainant/O.P. no. 2 and in course of search and seizure 12 gunny bags containing 50 KGs raw coal (approx.) was seized and 8 tons raw coal which was scattered there was also seized. From the personal search, the Mobile Set which the complainant/O.P. no. 2 has claimed to have been looted away by the accused persons was found in his personal possession. It thus appears that since the complainant/O.P. no. 2 was made an accused for theft of coal which were also seized only with malafide intention and with an ill motive by way of a counterblast Complaint case no. 160 of 2006 has been instituted. Whatever allegations have been leveled against the petitioner have been contradicted by the prosecution itself which is apparent from the release order and seizure list. The entire fact belies the contention of the complainant/O.P. no. 2. Moreover, section 20 of Railway Protection Force Act deals with protection of all members of the force and which reads as follows- “20. Protection of acts of members of the Force.- (1) In any suit or proceeding against any member of the Force for any act done by him in the discharge of his duties, it shall be lawful for him to plead that such act was done by him under the orders of a competent authority. (2) Any such plea may be proved by the production of the order directing the act, and if it is so proved, the member of the Force shall thereupon be discharged from any liability in respect of that act so done by him, notwithstanding any defect in the jurisdiction of the authority which issued such order. (2) Any such plea may be proved by the production of the order directing the act, and if it is so proved, the member of the Force shall thereupon be discharged from any liability in respect of that act so done by him, notwithstanding any defect in the jurisdiction of the authority which issued such order. (3) Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provisions of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding”. 10. This court in the case of Manik Lal and Ors. Vs. the State of Jharkhand and Anr. reported in [(2012) (1) East Cr C 9 (Jhr)] with respect to mandatory nature of section 20 (3) of the Railway Protection Force Act has held as follows- “8. A bare perusal of the aforesaid provision clearly shows that the provision is mandatory in nature and no action could have been initiated against the petitioners without fulfilling the requirements thereof. Learned counsel has drawn the attention towards the decisions of the Hon’ble Patna High Court in the case of Naresh Mohan Prasad & Ors. v. State of Bihar & Anr., as reported in 2000 Cr. L.J. 424 and in case of D.S. Bhoria & another v. N. Singh, as reported in 1970 Cri. L. J. 642, wherein, the Hon’ble Patna High Court has held that the prosecution against member of a Railway Protection Force cannot be continued without the non-fulfillment of the mandatory provision of Section 20(3) of the Act, failing which, the prosecutions were quashed by the Patna High Court. Learned counsel has also submitted that once there is a mandatory provision under the Special Statute, the general Statute is to give its way and the procedure provided in the Special Statute, has to be followed. Learned counsel has also submitted that once there is a mandatory provision under the Special Statute, the general Statute is to give its way and the procedure provided in the Special Statute, has to be followed. In this connection, learned counsel has placed reliance upon the decision of the Hon’ble Supreme Court of India in the case of Raj Kapoor v. Laxman, as reported in (1980) 2 SCC 175 , as also of this Court in Bhotna Mahto v. State of Jharkhand, as reported in 2009(2) JLJR 258. Placing reliance of these decisions, learned counsel for the petitioners has submitted that criminal proceeding against these petitioners cannot be continued and the same is fit to be quashed.” Apart from section 20 of the Railway Protection Force Act as has been indicated above the entire gamut of the offence alleged by the Complainant/ O.P. no. 2 seems to be a fallout of the case instituted by the petitioner against him under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 which is further fortified by the seizure list as well as the release of the Complainant/ O.P. no. 2 on personal bond and in such circumstances, the petitioner cannot be made to face the rigors of the trial. 11. Accordingly there being merit in this application the same is allowed and the entire criminal proceeding in connection with Complaint Case no. 160 of 2006 including the order dated 07.11.2006 passed by the learned Chief Judicial Magistrate, Latehar is hereby quashed.