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2023 DIGILAW 572 (JHR)

Rajkumar Sao v. State of Jharkhand

2023-04-25

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : On repeated call nobody has responded on behalf of the O.P.No.2. Identical was the situation on 31.08.2022. Accordingly, this matter is being heard on merit. 2. Heard Mr. Mahesh Tewari, the learned counsel for the petitioners and Mr. S.K.Shukla, the learned counsel for the respondent-State. 3. This petition has been filed for quashing of entire criminal proceeding in connection with Ranchi Rail P.S. Case No.131 of 2011, G.R.No.217 of 2011, including order dated 20.7.2012, pending in the court of learned Railway Magistrate, Ranchi. 4. The facts of this case in brief is that on the basis of fardbeyan given by O.P.no.2 wherein he has stated that he was working as Gate Keeper in Railway Department and posted at Piska Nagri Mahohar Level Crossing Gate. On 12.10.2011 according to him his duty hours were 5 a.m. to 6 p.m. after he is being relieved from his duty, it is alleged that 4 RPF personnel in civil dress came to him on motorcycle and one jawan Rabindra Rai was accompanied them. They took him to RPF office and also threatened him that he is indulged in committing theft of railway properties. It is alleged that on refusal he had been assaulted by means of Danda and with pointed nails electric shock was also given to him and he was made to stand in hot water. It was also stated that after receiving injuries some tablets were also given to him and after his being released he was admitted to railway hospital, Hatia for treatment from where he was referred to Deo Kamal Hospital and on the basis of these allegations the present FIR was instituted. 5. Mr. Mahesh Tewari, the learned counsel for the petitioners submits that the petitioner no.1 was Inspector of Railway Protection Force and petitioner nos.2, 3, 4 and 5 are constables in Railway Protection Force and posted at Ranchi. He submits that all the petitioners are members of the force as defined under section 2 of the Railway Protection Force, Act, 1957 and they are protected under section 20 of the said Act. He submits that in course of performing their legal duty in the matter of theft of solar plate investigation has been done. He submits that all the petitioners are members of the force as defined under section 2 of the Railway Protection Force, Act, 1957 and they are protected under section 20 of the said Act. He submits that in course of performing their legal duty in the matter of theft of solar plate investigation has been done. The O.P.No.2 happened to be Gate Keeper and he was brought to the spot of occurrence for identification and on instigation of certain union leader the present case has been lodged against the petitioners. He submits that prosecution is malafidely instituted against the petitioners who happens to be member of force. 6. On the other hand, Mr. Shukla, the learned counsel for the respondent State submits that learned court has taken congnizance and the status report suggest that one of the witness has been examined. 7. The Court has gone through the entire record and considered the submission of learned counsel for the parties. It is an admitted fact that informant was working with the Railway and he was Gate Keeper. Section 197 of the Cr.P.C in connection with police officer has been considered by the Hon’ble Supreme Court in case of D.Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695 . Paragraph no.30 and 49 of the said judgment is quoted hereinbelow: “30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari : (AIR p. 48, para 15) “15. … Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. … There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction.” 49. … There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction.” 49. Citing the judgment of this Court in State of Haryana v. Bhajan Lal, Mr Poovayya argued that where a criminal proceeding is manifestly prompted by mala fides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 482 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of court and/or to secure the ends of justice.” 8. Further section 20 of the Railway Protection Force Act, 1957 also protects the petitioners who happens to be members of the force. For ready reference, section 20 of Railway Protection Force Act, 1957 is quoted below: “20. Protection of acts of members of the Force:- (1) Xxxxxxxxxxx (2) Xxxxxxxxxx (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” 9. Identical case has been decided by the coordinate Bench of this Court in Cr.Misc.petition No.1267 of 2009 wherein at paragraph no.8, the said section was again interpreted, which is quoted below: “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. The learned counsel has drawn the attention towards the decision of the Hon’ble Patna High Court in the case of Naresh Mohan Prasad and Ors. v. State of Bihar and Another, 2000 Cr. L.J.4224 and in the case of D.S.Bhoria and Another v. N. Singh, 1970 Cri. The learned counsel has drawn the attention towards the decision of the Hon’ble Patna High Court in the case of Naresh Mohan Prasad and Ors. v. State of Bihar and Another, 2000 Cr. L.J.4224 and in the case of D.S.Bhoria and Another v. N. Singh, 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 fulfillment of the mandatory provision of section 20(3) of the Act, failing which, the prosecution were quashed by the Patna High Court. Learned counsel has also submitted that once there is a mandatory proviso 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 leraned counsel has placed reliance upon the decision of the Hon’ble Supreme Court of India in the case of Raj Kapoor v. Laxman, (1980) 2 SCC 175 , as also of this Court in Bhotna Mahto v. The State of Jharkhand, 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.” 10. In view of the above and considering the section 20 of the Railway Protection Force Act, 1957 and requirement of section 20(3) of the said Act, clearly lays down that no proceeding, criminal or civil, can be lawfully brought against any member of the force without complying its mandatory requirement, which had to be followed, failing which, cognizance could not have been taken by the learned court. 11. For the aforesaid reasons, to allow the present proceeding to continue further against the petitioners will amount to abuse of the process of law. 12. It is well settled that when the High Court comes to the conclusion at any stage of proceeding that it amount to abuse of the process of law, the High Court can pass appropriate order. 13. Accordingly, entire criminal proceeding in connection with Ranchi Rail P.S. Case No.131 of 2011, G.R.No.217 of 2011, pending in the court of learned Railway Magistrate, Ranchi is quashed. 14. Cr.M.P. No.753 of 2014 stands allowed and disposed of. 15. Pending petition if any also stands disposed of.