Anil Kumar Srivastava vs State of Bihar and Shri Ram Das Singh

M.Y. Eqbal, J.—In this application the Petitioner prays for quashing the order dated 19.1.98 passed by 3rd Additional Sessions Judge, Jamshedpur in Criminal Revision No. 78/94 whereby the teamed Additional Sessions Judge has held that no sanction was at all necessary from the State Government to prosecute the Petitioner or to institute a criminal proceeding against him and accordingly the order dated 6.9.94 passed by the Chief Judicial Magistrate has been quashed.

From perusal of the complaint petition (annexure 1) it transpires that the complainant-opposite party No. 2 lodged a complaint before the Chief Judicial Magistrate, Jamshedpur against five accused persons including the Petitioner who was the officer incharge of Bistupur police station, Jamshedpur for an offence under Sections 448, 342, 323 and 395 of the Indian Penal Code alleging, inter alia that on 20.9.93 at about 2.30 P.M. all the accused persons accompanied by a large number of persons forming unlawful assembly trespassed into the Cafeteria, threw away the articles, wrongly confined the members and the staff who protested the highhandedness, tooted away the articles and finally took forcible possession of the said Cafeteria without any authority of law.

Upon filing of the complaint, inquiry was held u/s 202 Code of Criminal Procedure and by order dated 6.9.94 the learned Magistrate took cognizance of the offence against four accused persons who were the employees of Tisco Ltd. under Sections 147, 148, 448, 342, 347 and 323 of the Indian Penal Code but so far the Petitioner who is accused No. 5 is concerned, the Magistrate refused to take cognizance against him on the ground that he being the public servant and officer incharge of Bistupur police station cannot be prosecuted in absence of any sanction for the said prosecution.

Aggrieved by the said order the complainant filed criminal revision being Gr. Rev. No. 78/94 which was eventually heard and decided by the impugned order passed by the 3rd Addl. Sessions Judge, Jamshedpur. The learned Addl. Sessions Judge, after taking into consideration the decision of the Supreme Court and this Court, came to the conclusion that since the Petitioner was officer incharge of Bistupur police station and was below the rank of Assistant Superintendent of Police who is removable by Inspector General of Police and not by the State Government, no sanction was at all necessary from the State Government to prosecute him (sic) to initiate a criminal proceeding against him. Accordingly, the learned Judge allowed the said revision and hence this application challenging the said order passed in revision.

Mr. Anil Kumar, learned Counsel appearing on behalf of the Petitioner, in course of argument, drew my attention to annexure 7, a notification dated 16.5.80 issued in exercise of power conferred u/s 197(3) Code of Criminal Procedure declaring that the. provisions of Section 197(2) Code of Criminal Procedure shall apply to the officers and men, wherever they may be serving in the State of Bihar or the Bihar Police Force charged with the maintenance of public order and who have been appointed by the Inspector General of Police, Bihar or any other officers specially authorized to appoint any person to such force under the Police Act. Learned counsel, therefore, submitted that in view of the notification sanction is necessary even for prosecuting the officers like the Petitioner.

It has not been disputed by the Petitioner that there was no order or decree of the civil court or criminal court of competent jurisdiction authorizing the accused persons to forcibly take possession of the Cafeteria which was admittedly in possession of the complainant. The '' Petitioner''s own case is that on the basis of requisition issued by the Tisco. Ltd. and under the direction of the S.P. the complaint was dispossessed.

Be that as it may, there is specific allegation in para 14 of the complaint petition which reads as under:

That on 20.9.93 at about 2.30 P.M. the accused persons along with Shri J.P. Sinha, Deputy Supdt. of Police came there along with about 50 persons of the security and goonda force of the Tisco accompanied by a posse of police force, armed force consisting of even a Gorkha Unit as also lathi party with all sorts of lethal weapons and formed into an unlawful assembly and without any manner of right whatsoever, criminally trespassed into the Cafeteria premises. The party came with 5/6 transport vehicles. Some customers were also present in the cafeteria at that time. The complainant''s grand son, Sushil Kumar Singh who was also present in the cafeteria was put under arrest. The miscreants threw away all the articles namely, tables, chairs, almirah etc. and carried away all things lying in the cafeteria, a list of which has been given in the schedule below worth about Rs. 2,50,000. The members of the staff who protested against the highhandedness and arbitrary conduct of the trespassers were forcibly put into the kitchen room and kept confined there under threat of injuries and death. The miscreants then looted all the articles listed in the schedule which were loaded in the transport vehicles and removed thereby committing an offence under Sections 395 of the Indian Penal Code. The operation went on from 2.30 P.M. to 5. P.M. At about 4.0 P.M. the complainant received information about it and reached the place of occurrence and protested to the Tisco officers present as also the officer in-charge of Bistupur police station and asked them to show him if they were carrying any warrant from a court of law authorizing them to engage into such unlawful activities. In reply, the accused No. 5 started assaulting the complainant and he was immediately surrounded by the gun toting police force. After clearing the cafeteria, the accused persons removed the complainant, Krishan Chandra Saha the Head cook Raj Kishore Yadav and Mohan Yadav under arrest and removed them to the Bistupur police station. Both Raj Kishore and Mohan are below 16 years of age. The (sic) and son of the complainant and the other members of the staff who had been pushed into the kitchen, were carried in different vehicles and some of them were left on the highway outside the city limits beyond Sundarnagar and some beyond Pardih in the Tata-Ranchi highway. Immediately after the complainant was brought under arrest at the police station, the complainant requested accused No. 5 to record his fardbeyam but he flatly refused.

From a bare perusal of the allegations, it is evident that the acts and ommission done by the Petitioner cannot be said to be in the discharge of his official duty. In that view of the matter I am of the view that even if there is a notification to that effect, as referred to by the learned Counsel for the Petitioner in the instant case no sanction as contemplated u/s 197 Code of Criminal Procedure is required. It has been repeatedly held by the Supreme Court that the alleged action constituting offence must have a reasonable and rationale nexus with the official duty required to be discharged by such public servant. In absence of such nexus no sanction is required. There are series of decisions on this point but suffice it to refer one of the decisions of the Apex Court in the case of Mohd. Hadi Raja Vs. State of Bihar and Another, .

As noticed above there was ho decree or order of civil court or criminal court of competent jurisdiction for forcible eviction of the complainant from the cafeteria. Even assuming that there was such a decree or order, the act done by the Petitioner cannot be said to have any nexus with the discharge of his official duty. In that view also, I do not find any reason to differ with the conclusion arrived at by the revisional court.

I, therefore, do not find any merit in this application which is, accordingly dismissed.