Sri Ram Swarath Yadav and Another vs Dr. Rajeshwar Prasad Sinha and Another

B.N. Agrawal, J.—This application has been filed for quashing the cognizance taken under Sections 166, 427, 504 and 380 of the Penal Code and summoning the Petitioners to face trial.

The opposite party No. 1 filed a petition of complaint in the court of the Chief Judicial Magistrate, Patna, stating therein inter alia, that Petitioner No. 1, who was Officer-in-charge of a police station filed recuisition for issuance of warrant of arrest as well as processes against one Rakesh alias Babloo son of the complainant and the court passed an order issuing processes against the aforesaid person. On 18.1.1989 for execution of the processes under Sections 82 and 83 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code''), the Petitioner No. 1 and Petitioner No. 2 (Sub-inspector of Police) are said to have entered the house of the complainant forcibly after breaking open the door armed with weapons. The complaint having learnt about the said order got records of criminal case, in which processes were issued, inspected and the court directed the complainant''s son who is an accused in that case to surrender. The complainant''s son thereafter surrendered in court and upon his surrender the court passed an order for staying execution of the processes. The Petitioners obtained a copy of the order and went to his house to serve the same upon the accused persons. It is said that the accused persons did not receive the court''s order which was produced by the complainant and inspite of the stay order, in execution of the processes issued under Sections 82 and 83 of the Code the accused persons had taken out various articles from the house of the complainant abusing him, which necessitated filling of the present complaint, upon which the LEARNED Magistrate after examination of the complainant on solemn affirmation and holding enquiry u/s 202 of the Code took cognizance and summoned the Petitioners, to fact trail. Hence this application for quashing the prosecution.

Learned Counsel appearing on behalf of the Petitioners submitted that order taking fence is fit to be quashed as the Cognizance has barred u/s 197(2) read with Section 197(3) of the Code which runs thus:

(2) No Court shall take cognizance of any offence allged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his offical duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of Sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order, as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-sea ion will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

Section 197(3), lays down that the State Government may, by notification, direct that the provisions of Sub-section (2) of the said Section 197 of the Code shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein wherever they may be serving and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

Learned Counsel appearing on behalf the Petitioners has produced before me a to of the Bihar Gazette dated 16.5.1980 published in extraordinary issue of the Bihar Gezette on 24th of May, 1980, which reads thus:

In exercise of the power conferred by Sub-section (3) of Section 197 of the Code of Criminal Procedure, 1973 (Act II of 1974), the governor of Bihar is pleased to declare that the provision of Sub-section (2) of the, said section shall apply to the officers, and men wherever they may be serving the State of Bihar of 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 authorised to appoint any persons to such force under the Police Act (Act V of 1961).

According to the said notification the provisions of Sub-section (2) of Section 197 of the Code shall apply to alt the officers and men belonging to Bihar Police Force charged with the maintenance of public order who arc working at any place within the State of Bihar and whose appointing authority is either the Inspector General of Police Bihar, the equivalent post Of which now is Director General-cum-Inspector General of Police or such other officer speedily authorised to appoint any person to such force under the Police Act. Admittedly, the Petitioners'' appointing authority is Director General cum-Inspector General of Police. Therefore, by virtue of the aforesaid notification, one of the prerequisites for application of the provision; of Sub-section (2) of Section 197 of the Code is attracted to the case of the Petitioners as they arc such members of Bihar Police Force who me charged with the maintenance of public order. A question arises as to whether Officer-incharge of a, police station and Sub-Inspector of Police can be said to be members of armed force charged with the maintenance of public order. This question had arisen before a Division Bench of Gujrat High Court in the case of Bhikhaji Vaghaji Vs. L.K. Barot and Others, where their Lordships while dealing with dealing with similar notification in a case of Police Inspector laid down that he can be said to be member of armed force of the State charged with maintenance of public order, It was further laid down that even if a police officer is such who some times can be charged with the maintenance of public order and sometimes for maintenance of law and order, he is entitled to claim protection u/s 197(2) of the Code, if other condition is fulfilled for application of Section 197(2) of the Code.

The other pre-requisite for application of Section 197(2) of the Code is that the offence complained of must be committed by such an officer of Bihar Police Force while acting or purporting to act in discharge of Sri* official duties, From a bare perusal of the case of the complainant, as stated above, it would appear that the offences in question were committed by the accused persons while acting or purporting to act in discharge of their official duties, Learned Counsel appearing on behalf of the complainant submitted that it cannot be said that the act committed by the accused was in discharge of their official duties. In my view, there is Very thin line of distinction between a case where an act complained of can be said to have been committed in discharge of official duties and a case where it can not be said to be so. In case where it can be said that there is reasonable nexus between the act complained of and the discharge of official duties and where the two are interwoven, it can be said that the offence was committed while acting or purporting to act in discharge of official duties. In my view, upon a bare perusal of the petition of complaint, it would appear that there was a reasonable nexus between the act complained offend the discharge of official duties and both were interwoven. This being the position, I am clearly of the view that both the conditions precedent for application of Section 197(2) of the Code are fulfilled in the case in hand; as such, the order taking cognizance becomes wholly unwarranted and prosecution, of the Petitioners cannot be allowed to continue as coutinuance thereof would amount to an abuse of process of court.

In the result, this application is allowed and prosecution of the two Petitioners is hereby quashed. I may, however, observe that this order will not prejudice cases of either party in any pending civil litigation as statement has been made at the bar that a suit is pending between the parties relating to the present occurrence.