Rama Kant Singh vs State of Bihar and Another

L.P.N. Shahdeo, J.—This is an application u/s 482 of the Code of Criminal Procedure for quashing the criminal prosecution and the order of taking cognizance, dated 5.1.1987 passed by Sri S.S.P. Verma, Sub-Divisional Judicial Magistrate, Lohardagga, whereby and whereunder he has taken cognizance of the offence u/s 323 of the Indian Penal Code against the petitioner in the following circumstances:

It appears that the opposite party No. 2 Hari Narain Prasad had sent a letter to the Prime Minister, consequent upon that, an enquiry was made by the petitioner on 18.12.1985 along with the Deputy Director of Mines, It appears that during the course of enquiry at village Hisri Name Toli, P.S. Kiko the complainant-opposite party No. 2 had pointed cut that due to mining operation, fertile lands became barren and this statement of the complainant enraged the Inspector of Mines who asked him to keep quiet and thereafter some altercation developed and it is further alleged that this petitioner had caught his neck by his both hands. The complaint was rescued by officers present there.

With the aforesaid allegation, the complainant lodged a first information report before the police. The police after enquiry submitted final form stating that the case was untrue but the learned Sub-Divisional Judicial Magistrate, did not accept the final report and took cognizance of the offence u/s 323 I.P.C. and this order of the learned Sub-Divisional Judicial Magistrate, taking cognizance is being assailed of in this application.

Mr. P.S. Dayal, learned Counsel appearing for the petitioner has submitted that the cognizance taken is trine-barred and, therefore, cognizance taken is without jurisdiction and against the provision of Section 468 of the Code of Criminal Procedure, His second argument is that it is a case in which the learned judicial Magistrate had not applied his judicial mind and. therefore, it is bad for non-application of judicial mind by the court concerned and his third and last argument is that the cognizance taken is also bad because admittedly the petitioner is Additional Director, Department of Mines Government of Bihar and as such whatever had happened was in course of discharge of his official duty and as such without obtaining necessary sanction, cognizance taken against the petitioner is bad in law.

It appears that the learned Judicial Magistrate has taken cognizance after he had cancelled the jurisdiction of the Gram Panchayat. It he admitted position in this case that the occurrence had taken place on 18.12.1985. It is also the admitted position that cognizance was taken on 5.31.1987 It is also the admitted position that the punishment prescribed for the offence u/s 323 I.P.C. is ither description for a term which may extend to one year or with fine or with both. Section 468 of the Code of Criminal Procedure prescribes period for limitation in taking cognizance and according to Section 468, Clause (2)(b) the limit for taking cognizance for such nature of office, as the present one, is one year and a limitation has been prescribed that no court shall lake cognizance of an offence of the category stated above after the expiry of the period of limitation. In view of the admitted position, the cognizance taken on 5.1.1987 is beyond a period of one year prescribed under the Code and, therefore, it must be held to be barred by limitation. This application on this ground alone is liable to succeed and the order of taking cognizance and the criminal prosecution are required to be quashed.

In this connection, in a case Surendra Mohan Bikals. State of Bihar, AIR 1978 SC 986 it was held that in a clear case of limitation and on admitted facts, if cognizance is taken after the expiry of period of limitation, it can be quashed by the High Court in exercise of the power vested in it u/s 482 of the Code of Criminal Procedure. Similar view was expressed in another ruling aborted in the case of State of Punjab Vs. Sarwan Singh, . In that case the cognizance taken u/s 406 was quashed as it was quashed as it was held that it was barred by limitation. In that case the Supreme Court set aside the conviction on the point of limitation which was taken for the first time in the Supreme Court. There fore, it is mow the established principle of law that if on admitted facts, the cognizance is taken beyond prescribed period of limitation, it can be quashed in exercise of inherit power of the Court un u/s 482 of the Code of Criminal Procedure. Therefore, in this case on admitted facts cognizance was taken beyoud the period prescribed fop taking cognizance of such nature of offence and, therefore, it is a fit case in which in exercise of extraordinary power vested u/s 482 of the Code of Criminal Procedure the criminal prosecution and the order of taking cognizance are liable to be quashed in order to prevent abuse of the process of the court and secure ends of justice.

Admittedly in this case learned Magistrate had not applied his judicial mind. On the admitted facts it is made out in the first information report that there was some altercation between the Inspector of Mines and informant. Therefore, there was no question of intervening by the petitioner who was holding a very responsible post at that time and working as Additional Director, Department of Mines, Government of Bihar. It is not expected that ordinarily that a parson holding such a high post will act in this hasty manner and would catch hold of the neck of the informant, when altercation was going on in between the informant and the Inspector of Mines. The nature of the allegation levelled that taigas the petitioner also, appears to be absurd and no prudent man is expected to behave in such manner or to act in such a manner as alleged against the petitioner. Therefore, taking of cognizance in such nature of case without application of judicial mind by the learned Magistrate, must be held to be bad in law. A case which appears to be absurd on its face value, cannot be allowed to continue causing unnecessary embarrassment to a responsible Government Officer, which aught have been instituted for some ulterior purpose. In this view of the matter also, the interference by this Court in order to secure ends of justice appears to be necessary.

It is admitted position that the Officers of the Department of Mines were enquiring into some allegation made by the petitioner before the Prime Minister on receipt of that letter. It is also admitted position that a day earlier to the date of institution, i.e., 17.12.1985 they had infromed that they will be making enquiry in respect of that application field by him. On 18.12.1985, they had taken the infroment in a Government jeep to the place of occurrence. It is also the admitted position that an enquiry was being conducted by the Government servants and because of some difference in course of the enquiry, this incident had happened. Therefore, the offence alleged or acts alleged against the petitioner has a nexus or close proximity to the discharge of the official duty. The petitioner and his other Officers subordinate to him, were holding enquiry and discharging their public duty in course of which something unpleasant had happened. These admitted facts arc sufficient to indicate that whatever had happened was in course of the performance of official duty by the petitioner. His subordinate Officers were also discharging their official functions, therefore, it was not a case of individual liability or personal responsibility, but directly connected with discharge of official duty.

Section 197 of the Code of Criminal Procedure says that, in case of a public servant not removable from his office save by or with the sanction of Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the competent authority mentioned therein in the section. It is the admitted position in this case that sanction of the Government has not been obtained, it is also the admitted position in this case that the petitioner being Additional Director of Mines an Officer who cannot be removed from the post save by or with the sanction of the State Government. Therefore, once the finding has been arrived at that the act done by the petitioner had a close nexus with the official duty ha was preforming and, therefore, for the alleged offence arising out of such performance of official duty, sanction of the State Government was; necessary before a criminal prosecution can be launched against the petitioner. This having not been done, the order of taking cognizance become bad in law and the whole criminal prosecution of the petitioner is invalid on this account also. This provision has been engrafted to protect sincere Government officials to perform their duty diligently, honestly free from unnecessary criminal prosecution, detrimental to their interest. This protection given by the Code, therefore, requires to be followed in all its force so that the Government servants can perform their duty independently without any fear or favour while acting or purporting to act in discharge of their official duty. Reverting to the present case, it is the admitted position that no sanction has been taken and, therefore, as held above, the criminal prosecution of the petitioner must be held to be invalid ab initio. Thus, I find and hold that all the law point taken in this case are tenable.

In the result, this application is allowed. The criminal prosecution and the order of taking cognizance against the petitioner, both are quashed.