Madhurendra Kumar and Another vs The State of Bihar

Navin Sinha, J.—Heard learned counsel for the petitioners, learned counsel for O.P. No. 2 and learned counsel for the State. The present application has been filed for quashing the order of cognizance dated 7.8.2003 in Complaint Case No. 887/01 for the offence under Sections 323, 448, 354 and 504/34 of I.P.C.

Learned counsel for the petitioners submits that the date of occurrence as mentioned in the complaint is 23.11.2001. The complaint case has been filed after delay on 26.11.2001. The son of the complainant was an accused in G.R. No. 1094/99 in which there was a warrant of arrest against him issued by the court. The petitioner No. 1, who is stated to be a police officer, had in fact gone to the house of the complainant to arrest her son, an accused as aforesaid. The allegations against petitioner No. 1, therefore, relate to an act in course of his official duties for which sanction was a prerequisite u/s 197 of Cr.P.C. before cognizance could be taken. The submission further is of false implication with regard to petitioner No. 2 in view of the fact that the complainant had earlier lodged a complaint case bearing No. 852/01 against him and notwithstanding the directions of the court the police was allegedly not recording an F.I.R. Learned counsel for O.P. No. 2 opposing the application submits that the petitioner No. 1 had undoubtedly a right to execute the warrant. The allegations in the complaint are however not of simple execution of warrant to arrest the son of the complainant. The petitioner acted in excess of his official duties after he arrested the accused. He re-entered the house with the avowed purpose of harassing the female inmates. In any event, the submissions of the petitioner No. 1 are matters of his defence to be considered in the trial.

On considerations of the submissions made on behalf of the parties and on going through the complaint this Court finds that the allegations in the complaint are in two parts. The first part relates to the exercise of official powers by petitioner No. 1 in arresting the son of the complainant and then bringing him out of the house and handing him over to the police force accompanying him.

The petitioner No. 1 is then alleged to have re-entered and misbehaved with the female members of the house where he is alleged to have made certain overtures leading to snatching of his badge etc. The court below on enquiry was satisfied about the 2nd part of the allegations based on the depositions of witnesses before him.

This Court, in the facts and circumstances of the case, finds it difficult to arrive at a conclusion at this stage that the present complaint was essentially simplicitor in retaliation to the arrest of the son of the complainant by petitioner No. 1. The 2nd part of the allegations in the complaint case surely, at this stage cannot be confined in its operation by the limits of Section 197 of Cr.P.C. The applicability of Section 197 of Cr.P.C. would be a mixed issue of law and fact to be considered on basis of materials that may surface during the trial. It needs no emphasis that the question of applicability of Section 197 of Cr.P.C. can be raised and considered at any stage upto the conclusion of the trial based on the materials that may surface during the trial.

In view of the aforesaid discussions, this Court finds it difficult to quash the prosecution against petitioner No. 1 on the premise simplicitor of absence of sanction u/s 197 of Cr.P.C. at this stage. Likewise this Court finds it difficult to quash the proceedings on ground that the same was mala fide and in retaliation to the arrest of the son of the complainant.

In so far as petitioner No. 2 is concerned for the very reasons as noticed above with regard to nature of allegations constituting materials fit to go to trial, this Court is not persuaded that the present is a fit case calling for any interference in exercise of power u/s 482 of Cr.P.C. The application is accordingly dismissed.