Shri S.K. Toppo and Others vs State of Bihar and Others

Amareshwar Sahay, J.—The order dated 25.11.1996 of the learned A.C.J.M. Bermo at Tenughat as well as the entire criminal prosecution being Complaint Case No. 237/1996 are under challenge in this application whereby cognizance of the offence under Sections 120B, 347, 352, 388 and 448 of the Indian Penal Code has been taken against the petitioners on the basis of the complaint filed by O.P. No. 2.

A complaint was filed by O.P. No. 2 on 5.11.1996 against the petitioners. The complainant was examined on solemn affirmation on 7.11.1996 by the A.C.J.M. and thereafter the complaint case was made over to the Judicial Magistrate Ist Class for enquiry and trial u/s 192, Cr PC. The learned transferee Magistrate examined the witnesses produced on behalf of the complainant u/s 202, Cr PC and thereafter took cognizance of the offence under Sections 120B, 347, 352, 388 and 448 of the Indian Penal Code.

It was alleged in the complaint petition that on 14.9.1996 the complainant, who was an employee of C.C.L. was taking rest in the verandah of his house after he was released from the hospital where he was admitted for his treatment. On that day at about 3 p.m. the petitioners entered into his house and started searching money but they could not find money and thereafter they told the complainant to accompany them and on refusal they forcibly took the complainant with them to Gomia R.P.F. Office, where he was confined in a room. Thereafter, they asked the complainant to pay Rs. 20,000/- otherwise he was threatened to be implicated in a criminal case and he was also assaulted with fist and slaps. It was further alleged that on 15.9.1996 the complainant was again assaulted, abused and his signature was obtained forcibly on a blank paper. Thereafter, he was taken to Barkakana and was kept in the R.P.F. Office. On 16.9.1996 from Barkakana he was taken to Daltonganj and was produced before the Railway Judicial Magistrate by implicating him in a false case for the alleged commission of offence u/s 3 of the R.P. (U.P.) Act and was remanded to the jail custody.

The further case of the complainant is that after he was released from custody on 1.11.1996 he went to the Police Station to lodge information but no case was registered and as such he filed the complaint case in the Court.

The case of the petitioners is that the complainant has lodged, a false case because the petitioners caught the complainant red handed with stolen railway property and after arresting him he was produced before the Railway Judicial Magistrate. The case was registered u/s 3 of the R.P. (U.P.) Act against the complainant being Barkakana P.S. Case No. 25/1996. It is stated on behalf of the petitioners that O.P. No. 2, i.e. the complainant was arrested at Jarangdih siding at about 15.15 hours on 14.9.1996 and from his possession, two numbers of Railway Fish Plate were recovered. On his confessional statement there was further recovery of Railway properties such as :--

(i) 5 numbers of railway tibars

(ii) One number of Nakal pin

(iii) Three numbers (Safety)

(iv) Half K.G. melted Alluminium

It is further stated that petitioner Nos. 1 and 2 are Sub-Inspectors of R.P.F. Barkakana, petitioner No. 3 is a Constable and petitioner No. 4 is Inspector of R.P.F. Barkakana and they in discharge of their official duty lodged a case against the complainant and the complainant only by way of vengeance has filed a belated false case against them only to make out a ground for his defence and, therefore, the whole prosecution against the petitioners is absolutely mala fide.

It was submitted by Mr. Delip Jerath, learned counsel appearing for the petitioners that they are the Government officials and are public servants within the meaning of Section 197, Cr PC. No prior sanction as envisaged u/s 197, Cr PC has been taken and, therefore the order taking cognizance as well as the criminal prosecution against them is bad in law and as such is liable to be quashed.

It is further submitted that the learned A.C.J.M. did not apply his judicial mind before taking cognizance and has wrongly held that there was no nexus between the official duty of the petitioners and the acts complained of, against them. It is further submitted that no offence as alleged on the basis of the facts stated in the complaint are made out and that there was no question of any conspiracy in the present case rather the petitioners in discharge of their official duty arrested the complainant with stolen railway property.

In support of his submissions Mr. Jerath has relied on a decision in the case of Rizwan Ahmed Javed Shaikh and Others Vs. Jammal Patel and Others, .

Mr. M.K. Dey, learned counsel appearing on behalf of O.P. No. 2 on the other hand submitted that no interference by this Court at this stage is required as the learned A.C.J.M. has taken cognizance of the offences alleged after full application of his mind and after finding prima facie case against the petitioners.

It was further submitted that since there was no nexus between the official duty of the petitioners and the acts complained of, in the complaint petition and as such no sanction as required u/s 197, Cr PC was required to be taken prior to taking cognizance. The learned A.C.J.M. has rightly held that no such sanction u/s 197, Cr PC was required. On the basis of such submissions O.P. No. 2 has prayed to dismiss this application.

In the case of Rizwan Ahmad Javed Shaikh (supra) the Apex Court has held as follows :--

"15. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected."

The law on the subject is well settled and the legislative mandate engrafted in Sub-section (1) of Section 197 is a prohibition imposed by the statute from taking cognizance, if the offence alleged has something to do or related in some manner with the discharge of official duty. It is also settled law that for invoking protection u/s 197 of the Code, the acts of the accused complained of, must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, and the officials status furnishes only the occasion or opportunity for the acts, then no sanction would be required.

From the allegation made in the complaint petition, which has already been discussed, in earlier paragraphs it appears that it cannot be said that there was no nexus between the official duties of the petitioners and the acts complained of against them by the complainant.

From the facts emerging in the present case, it appears that the allegations made against the petitioners are such which can definitely be said to have been done in discharge of the official duties by the petitioners.

Therefore, in my view sanction as envisaged u/s 197 of the Code was must before taking cognizance in the present case and since no sanction as required u/s 197 of the Code was taken prior to taking cognizance and, therefore, in view of the decision of the Supreme Court discussed above, I hold that the impugned order taking cognizance as well as the entire criminal prosecution against the petitioners are bad in law.

Accordingly, this application is allowed. The order dated 25.11.1996 taking cognizance as well as the entire criminal prosecution being Complaint Case No. 237 of 1996 is hereby quashed.