Shailendra Kumar Sinha vs The State of Bihar and Sanjay Shankar

Hemant Kumar Srivastava

This petition under Section-482 of the Cr.P.C. has been filed for quashing the order dated 27-03-2009 passed by learned Judicial Magistrate-

Bhagalpur in Complaint Case No. 285 of 2007 corresponding to Trial No. 1329 of 2009 by which and whereunder, the learned Judicial

Magistrate, having found prima facie case against the petitioner and others for the offences under Sections-341, 323 & 504 of the Indian Penal

Code, ordered to issue summons against them to procure their attendance for facing the trial in the above-said case.

The opposite party No. 2 who is complainant in Complaint Case No. 285 of 2007, filed above-said Complaint Case on 20-02-2007 in the

court of learned Chief Judicial Magistrate, Bhagalpur against the petitioner, who is accused No. 1 in the said case and three others alleging therein

that on 18-02-2007, at about 1.30 p.m when he alongwith his family members was sitting in his house, all the accused persons entered his house

and at the instigation of accused, Smt. Kavita Saran, the petitioner caught hold him and gave one slap near his ear as a result of which, he sustained

injury and the petitioner also demanded Rs 10,000/- (ten thousand) giving threatening to him that if his demand is not fulfilled, he would send him to

jail and when the opposite party No. 2 made protest, the petitioner alongwith other accused started assaulting him and dragged him at his door and

forcibly made him to sit in police jeep. After that, he was brought to Adampur police station, where he was again assaulted by the accused persons

and when the condition of the petitioner started deteriorating, he was forced to leave police station. The reason behind the alleged occurrence is

that co-accused, Smt. Kavita Saran had filed Complaint Case No. 1921 of 2006 against the cousin brother of the opposite party No. 2 and in the

said case, the father of the opposite party No. 2 stood bailor of cousin brother of the opposite party No. 2 which caused annoyance to accused,

Smt. Kavita Saran and others and after that, all the accused, having entered into conspiracy, committed the alleged occurrence. After the alleged

occurrence, the opposite party No. 2 tried to register the case in Adampur Police Station but police officials did not register the case and after that,

he filed the aforesaid complaint petition.

Learned Chief Judicial Magistrate, Bhagalpur recorded the statement of complainant on solemn affirmation and transferred the case to the court

of Sri Manoj Kumar, Judicial Magistrate-Ist class, Bhagalpur for inquiry. Learned Judicial Magistrate-Ist Class, Bhagalpur recorded the statements

of inquiry witnesses and in course of inquiry, he called for a report from Adampur Police Station. The police official of Adampur police station

submitted the report vide memo No. 705 of 2007 dated 31-12-2007 disclosing this fact that no occurrence had taken place on 18-02-2007 in the

premises of Adampur police station. In course of inquiry, opposite party No. 2 filed a petition before learned Judicial Magistrate alongwith

supervision note of Dy S.P, Bhagalpur and after that, learned Judicial Magistrate stayed the further proceeding of the inquiry under Section-210(1)

of the Cr.P.C. till the submission of final report of the police. Again, the complainant filed a petition on 29-11-2008 mentioning this fact that the

learned inquiring Magistrate had illegally stayed the further proceeding of the complaint case and accordingly, it was prayed to pass order in

accordance with law and after that, the learned inquiring Magistrate vacated the said order passed under Section-210(1) Cr. P.C. and fixed the

case for hearing on the point of issuance of summons and later on, he passed the impugned order on 27-03-2009 which is under challenge before

this court.

This petition was admitted by this court for hearing on 01-07-2011 and after that, the opposite party No. 2 filed his counter affidavit. Both the

parties were heard at length.

Learned counsel appearing for the petitioner challenged the impugned order on the grounds that the learned Judicial Magistrate had got no

jurisdiction to recall its own order dated 20-03-2008 by which he had stayed the proceeding of Complaint Case No. 285 of 2007. It is further

contended by him that when learned Chief Judicial Magistrate, Bhagalpur had already taken cognizance in the case, there was no occasion before

learned Judicial Magistrate, Bhagalpur to pass fresh cognizance order and it is well settled principle of law that the cognizance of the offence is

taken once but in the present case, the cognizance has been taken by the court twice, so in the aforesaid circumstance, the impugned order is bad

in law. It is further contended by him that as a matte of fact, co-accused, Smt Kavita Saran had filed a petition before the Superintendent of Police,

Bhagalpur against the opposite party No. 2 and at the direction of Superintendent of Police, Bhagalpur, the petitioner inquired into the allegation

levelled by co-accused, Smt Kavita Saran against the opposite party No. 2 and others and prayed for initiation of proceeding under Section-107

of the Cr.P.C. against them. It is contended by learned counsel for the petitioner that being annoyed by the action of the petitioner, the opposite

party No. 2 taking the higher officials of the police in his collusion, filed this complaint case. It is further contended by him that according to

complaint case itself, the petitioner was discharging his official duty and, therefore, the prosecution of the petitioner in absence of proper sanction

order under Section-197 of the Cr.P.C. is illegal.

On the otherhand, learned counsel appearing for opposite party No. 2 supported the impugned order arguing that there was no need for the

learned Judicial Magistrate, Bhagalpur to take sanction for prosecution of the petitioner under Section-197 of the Cr. P.C. because admittedly, the

petitioner was working as police inspector at the relevant time and he may be removed by the D.G.P., Bihar, Patna without prior sanction of the

Government and, therefore, section- 197 of the Cr. P.C. is not applicable in respect of the petitioner and, moreover, there is allegation against the

petitioner that he abused and assaulted the opposite party No. 2 and, therefore, the act complained of, does not come under the purview of

discharging of official duty. It is further contended by him that no doubt, earlier the learned Judicial Magistrate, Bhagalpur stayed the further

proceeding of Complaint Case No. 285 of 2007 under Section-210(1) of the Cr.P.C. till final report of the police but when it came to the notice

of the learned Judicial Magistrate, Bhagalpur that no police case was pending in respect of alleged occurrence, the learned Judicial Magistrate

rightly proceeded with the case and passed the impugned order. It is further contended by him that admittedly, learned Chief Judicial Magistrate

recorded the statement of opposite party No. 2 on solemn affirmation and transferred the case record of learned Judicial Magistrate, Bhagalpur for

inquiry and trial. Therefore, as soon as the learned Chief Judicial Magistrate, Bhagalpur recorded the statement of opposite party No. 2 on solemn

affirmation, it can safely be said that he had already taken cognizance of the offence and so far as learned Judicial Magistrate, Bhagalpur is

concerned, he inquired into the matter only to remove his doubt as to what offences are being made out against the petitioner. Therefore, it cannot

be stated that cognizance has twice been taken in this case. It is further contended by him that so far as supervision note of Dy S.P. is concerned,

the same was not prepared in respect of any police case rather the aforesaid supervision was done by Dy. S.P., when the opposite party No. 2

made complaint to higher officials against the atrocities of the petitioner and the aforesaid supervision note was prepared in connection with

departmental inquiry and, therefore, on the basis of aforesaid supervision note, it cannot be said that at the time of passing impugned order, a

police case was pending in respect of the alleged occurrence.

Having heard the rival contentions of both the parties, I have gone through the record.

Admittedly, the petitioner was working as police inspector of police station, Sadar, Bhagalpur at the relevant time whereas; the alleged

occurrence took place under the jurisdiction of Adampur Police Station. There is allegation against the petitioner that he went at the house of the

opposite party No. 2 and not only abused him but also assaulted him at his house as well as at the premises of Adampur Police Station.

Admittedly, the entire occurrence took place under the jurisdiction of Adampur police station and the petitioner was posted at that time at

Bhagalpur Sadar police station, so, it cannot be said that the act complained of, has been done by the petitioner in discharging of his official duty.

Section-197 of the Cr.P.C. does not give protection to those officials whose services can be removed without prior sanction of the government

and, therefore, I am in agreement with the submission of learned counsel for the opposite party No. 2 that the petitioner cannot take protection of

Section-197 of the Cr.P.C.

It is an admitted position that in course of inquiry learned Judicial Magistrate, Bhagalpur called for a report from Adampur Police Station and the

official of the said police station reported that no occurrence had taken place in the premises of Adampur police station but admittedly, before

submission of the aforesaid report, the learned inquiring Magistrate had already recorded the statement of inquiring witnesses who supported the

case of the complainant. Therefore, even if the aforesaid police report is discarded, then also, there was sufficient material before the learned

Judicial Magistrate, Bhagalpur to issue process against the petitioner and other co-accused persons and, therefore, I am of the opinion that the

learned Judicial Magistrate has rightly discarded the aforesaid police report.

The impugned order has been challenged on behalf of the petitioner on the ground that learned Judicial Magistrate, Bhagalpur has got no

jurisdiction to recall its own order by which he had stayed the further proceeding of Complaint Case No. 285 of 2007 u/s 210(1) of the Cr.P.C.

but I am not at all impressed with the aforesaid submissions because admittedly, the further proceeding of Complaint Case No. 285 of 2007 was

stayed till submission of the final form and when it came to the notice of the Judicial Magistrate, Bhagalpur that no police case had been instituted in

respect of alleged offences, the learned Judicial Magistrate, Bhagalpur rightly proceeded with the complaint case and passed the impugned order.

So far as so-called mala fide intention of the opposite party No. 2 is concerned, the same cannot be investigated at this stage and to infer any

mala fide intention of the opposite party No. 2, the deeper investigation of the case is essential and the same is possible in trial only.

On the basis of aforesaid discussions, I am of the opinion that this quashing petition is devoid of merit and must be dismissed.

Accordingly, this quashing petition stands dismissed and it goes without saying that stay order granted by this court vide order dated 01-07-

2011 shall stand vacated.