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2016 DIGILAW 688 (JHR)

Nisar Kanti Mukherjee v. State of Jharkhand

2016-04-23

SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. Challenging order dated 22.04.2006 in PCR Case No. 227 of 2005 corresponding to T.R. No.650 of 2006 whereby, the learned Judicial Magistrate, 1st Class, Jamtara took cognizance of the offence under Sections 147, 341, 342, 323, 426 and 348 IPC, the applicants who were members of the raiding party have filed the present Criminal Miscellaneous Petition under Section 482 Cr.P.C. 2. At the outset, Mr. Kaushik Sarkhel, the learned counsel for the applicants submits that in “Sidhartha Ghoshal Vs. The State of Jharkhand & Anr.” reported in 2010 (4) JLJR 105 , this Court has quashed the order taking cognizance and the entire criminal proceeding arising out of PCR Case No.227 of 2005 insofar as, another accused namely, Sidhartha Ghoshal is concerned. It is submitted that the case of the present accused-applicants is identical to Sidhartha Ghoshal's case and it is on similar footing. 3. Mr. Mahesh Tewari, the learned counsel appearing for O.P. No.2 submits that the decision in Sidhartha Ghoshal's case is per incuriam inasmuch as, it has been rendered ignoring the binding decision of the Hon'ble Supreme Court in Raj Kishor Roy's case. It is contended that the requirement of sanction under Section 197 Cr.P.C. has to be decided in the facts of the case. 4. Order dated 22.04.2006 records in detail the allegations against the accused persons and it also notices the pre-summoning evidence led by the complainant during enquiry under Section 202 Cr.P.C. After referring to decision of the Hon'ble Supreme Court in “Raj Kishor Roy Vs. Kamleshwar Pandey & Anr.” reported in (2002) 6 SCC 543 the trial Judge took cognizance of the offence under Sections 147, 341, 342, 323, 426 and 348 IPC. 5. In the First Information Report, the complainant levelled allegation against the accused persons that they came in several jeeps, cars and motorcycles without any warning and forcibly entered the house of the complainant and started ransacking the articles in the house. The accused persons did not disclose any search warrant and when the complainant resisted their entry in the house, she was assaulted and she started bleeding. The children namely, Sujit Kumar, Ajit Kumar, Joya Kumari and Rupa Kumari, who were present in the house being frightened started crying whereupon, the accused persons slapped them also and threatened to shoot everybody. The accused persons did not disclose any search warrant and when the complainant resisted their entry in the house, she was assaulted and she started bleeding. The children namely, Sujit Kumar, Ajit Kumar, Joya Kumari and Rupa Kumari, who were present in the house being frightened started crying whereupon, the accused persons slapped them also and threatened to shoot everybody. The accused persons broke upon the boxes and steel almirah in the house and looted several articles with gold and silver ornaments worth about Rs.80,000/. The complainant further alleged that during the entire search operation, the accused persons continued to abuse the complainant and other ladies in the house in filthy language and they forcibly took away the complainant's son namely, Sujit Kumar, aged about 15 years. 6. In Sidhartha Ghoshal's case, a learned Single Judge of this Court held that the facts in Raj Kishor Roy's case are entirely different and the judgment in the said case would be applicable only in cases where it may not be possible to decide the question of sanction u/s 197 Cr.P.C. effectively, without giving opportunity to the defence to establish that what was done was in discharge of his official duty. While quashing the order taking cognizance against Sidhartha Ghoshal, the learned Single Judge held that “the documents produced by him” established that the acts complained of were in discharge of his official duty, even though the said police officer had committed “certain excesses”. 7. Section 197 of the Code of Criminal Procedure mandates that no court shall take cognizance of the offence without prior sanction. Now, it has been authoritatively held that sanction under Section 197 Cr.P.C. is required only in cases in which the materials produced by the prosecution or from the admitted documents, without any further enquiry, it can be concluded that the act alleged against the accused was done in discharge of official duty. In cases where the court cannot come to such a conclusion at the stage of cognizance, the question of sanction under Section 191 Cr. P.C. has to be left open to be decided at a later stage. In cases where the court cannot come to such a conclusion at the stage of cognizance, the question of sanction under Section 191 Cr. P.C. has to be left open to be decided at a later stage. The judgment in “Raj Kishor Roy vs. Kamleshwar Pandey” (2002) 6 SCC 543 wherein, the Hon'ble Supreme Court held that the question of sanction may be decided at a subsequent stage has been affirmed by the Hon'ble Supreme Court in “Romesh Lal Jain vs. Naginder Singh Rana & Ors.” (2006) 1 SCC 294 and explained in “Om Prakash and others vs. State of Jharkhand and Anr.” (2012) 12 SCC 72 in the following words : 41. “The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage 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 a 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.” 8. In a 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.” 8. The expression “any offence alleged to have been committed while acting or purporting to act in the discharge of official duty” has been considered by the Hon'ble Supreme Court in “Matajog Dobey vs. H.C. Bhari” AIR 1956 SC 44 . In the said case the Constitution Bench held that there must be a reasonable connection between the act and the discharge of the official duty and the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty. Recently, in “N.K.Ganguly vs. Central Bureau of Investigation” (2016) 2 SCC 143 , the Hon'ble Supreme Court has reiterated that for the protection under Section 197 Cr.P.C., it is imperative that the alleged offence is committed in discharge of the official duty by the accused. 9. Thus, for deciding the question whether sanction under Section 197 of the Code of Criminal Procedure is required before taking cognizance of the offence or not, the court is required to see the documents produced by the prosecution. The materials produced in the present proceeding which according to the applicants' counsel are similar to the materials produced in the Sidhartha Ghoshal's case needs to be examined. However, in view of the judgment in Sidhartha Ghoshal's case, I am precluded from examining the materials produced by the applicants in the present proceeding, afresh. 10. A reading of the judgments of the Hon'ble Supreme Court unerringly discloses that the question of sanction under Section 197 Cr.P.C. can be decided at any stage. May be the findings recorded by the learned Single Judge that the decision in Raj Kishor Roy's case was rendered in different facts and circumstances of case is true however, on the question of applicability of the ratio in the said case to the present case, in my opinion, the decision in Sidhartha Ghoshal's case is contrary to the law settled by the Hon'ble Supreme Court. Admittedly, the documents produced by the said applicant namely, Siddhartha Ghoshal were not before the trial court nor there is any discussion on those documents in the judgment of this Court. Admittedly, the documents produced by the said applicant namely, Siddhartha Ghoshal were not before the trial court nor there is any discussion on those documents in the judgment of this Court. Considering the aforesaid facts, I respectfully disagree with the judgment in “Siddhartha Ghoshal vs. The State of Jharkhand & Anr.”. However, judicial proprietary requires that though, I may differ with the said judgment, I cannot decide the present case ignoring the judgment rendered in the case of “Siddhartha Ghoshal”. Therefore, the present case is required to be decided by a Hon'ble Division Bench of this Court. The Registry is directed to take necessary orders from Hon'ble the Chief Justice. Directions issued.