Patna High Court - Orders
Rajendra Singh vs The State Of Bihar & Anr on 16 April, 2009
Author: Abhijit Sinha
Bench: Abhijit Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.16303 of 2006
Rajendra Singh, Son of Late Dhanusdhari Singh, resident of
Road No.6, Rajeev Nagar, P.S. Digha District-Patna
------------------- Petitioner
Versus
1. The State Of Bihar
2. Md. Salam Iraqui, son of Md. Sattar, resident of Muhalla
Raipura, Idgahpar, P.S. Fatwa, District-Patna
_____________ Opp.Parties.
-----------
WITH
Cr.Misc. No.17053 of 2006
Rajendra Singh Son of Late Dhanusdhari Singh, resident of
Road No.6, Rajeev Nagar, P.S. Digha District-Patna
-------------------- Petitioner
Versus
1. The State Of Bihar
2. Md. Shamsher, son of Md. Md. Sattar, resident of Muhalla
Raipura, Idgahpar, P.S. Fatwa, District-Patna
----------------- Opp.Parties.
-----------
For the Petitioner in Both cases: M/S Ganesh Prasad Singh,
Sr.Advocate &
Manish Kumar, Advocate
For the State in Both cases : Mr.Jharkhandi Upadhaya,A.P.P
For Opp.Party no.2 in Both cases :Mr.Dhruba Mukherjee, Advocate.
________
ORDER
Both these cases have been taken up together since the
petitioner in both the cases is same and facing alleged hostility from
two bothers who are Opp.Party no.2 in both cases and in view of the
nature of the cases being the more or less similar, they have been
heard together and is being disposed of by this common order.
One Md. Salam Iraqui is the complainant of Complaint
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Case No.2401(C) of 2004 and is impleaded as Opp.Party No.2 in
Cr.Misc.No.16303 of 2006 and through this application the petitioner
herein who has been arrayed as the sole accused for commission of
offences under Sections 323,307,380, 386, 420, 452, 501, 503, 504
and 506 I.P.C.in the said complaint case has prayed for the quashing
of the entire criminal proceeding arising from the said complaint case
including the order dated 2.3.2006, whereby cognizance has been
taken against him under Section 323, 380 and 504 I.P.C. by Sri Prem
Chandra Anal , Judicial Magistrate, 1st Class, Patna.
One Md. Shamsher is the complainant of Complaint Case
No.3087( C) of 2004 and is impleaded as Opp.Party no.2 in
Cr.Misc.No.17053 of 2006 and through this application the petitioner
herein who has been arrayed as one of the two accused for
commission of alleged offences under Sections 323, 380,386,
452,501,503, 504 and 506 I.P.C. has prayed for the quashing of the
entire criminal proceeding arising from the said complaint case
including the order dated 14.7.2005 passed therein by Sri Shobha
Kant Mishra, Judicial Magistrate, 1st Class, Patna whereby he has
taken cognizance of offences under Sections 323, 504 and 506/34
I.P.C. against the petitioner and another.
The complainant of Complaint Case No.2401(C) of 2004
claiming to be owning three shops in Maurya Lok Complex along
with his brother and carrying on business of shoes, slippers , bags and
Mobile phones and also being the Chairman of Maurya Lok Minority
Shopkeepers Association alleged inter alia that the petitioner herein
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along with other police personnel arrived at his shop on 25.9.2004
and threatening him slapped his staff incessantly , to which the
complainant objected , whereupon the petitioner is alleged to have
abused him and threatened to send him to jail.
He has further alleged that as he was not vacating the shop
premises and had gone to the court by way of Title Suit No.5 of 2003
where status quo was directed to be maintained, he refused to
accompany the petitioner to the Police Station as the matter was
pending in the court and showed him the order of status quo, but the
same had no effect on the petitioner who instead directed him to
vacate the shop, pushed him towards the counter, assaulted him and
also threatened him. It is further alleged that the petitioner took 30
(thirty) mobile total worth Rs.85, 000/-, cash worth Rs.21, 000/- and
re-charge coupons worth Rs. 17,000/- which he kept in his vehicle. It
is also alleged that thereafter the petitioner went to the other shop
directing the complainant to follow him and threatening of putting
him inside the jail took out the rifle, cartridges and their original
papers, although the said rifle was not wanted in any case, and
thereafter brought the complainant to the Police Station and put him
behind the bars on the ground that he was an accused in Kotwali P.S.
Case no.80 of 2004. It is also alleged that the petitioner neither
prepared a seizure list nor did he give any receipt for the aforesaid
goods that he had taken and he was forwarded to the court of the
learned Chief Judicial Magistrate. The complainant further alleged
that the petitioner called a Press Conference alleging the complainant
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to be a big criminal as a result whereof the complainant had suffered
mentally as also economically.
It is said that in spite of demand for return of the goods by
brother of the complainant and staff, the same were not returned and
instead they were threatened which was followed by the petitioner
visiting the shop everyday to threaten his brother and staff. It is said
that on his release on 29.2.2004 he gave written information to the
Senior Police Officers on 30.9.2004 but that notwithstanding the
petitioner again came to his shop on 1.10.2004 and abused his brother
and staff directing him to vacate the shop, failing which all of them
would be sent to jail. He also refused to return the goods allegedly
taken away. A complaint to this effect was lodged on the same day
with the Police Control Room and on 2.10.2004, the petitioner again
came and directed him to close the shop which he obeyed at that
moment and soon thereafter started doing business again after giving
information to the Sr. Supdt. of Police and other persons and for this
the petitioner again threatened him.
The complainant of Complaint Case No.3087(C) of 2004,
who is the own brother of the complainant of the other case, alleged
that on 13.12.2004 the Officer Incharge of Kotwali Police Station, i.e.
the petitioner herein, along with his bodyguard came to his shop and
arrested him in a false case being Kotwali P.S. Case No.527 of 2004
wherein one Raj Kumar happened to be the informant. It is alleged
that there is no such person by that name at the residential address
given in the First Information Report. He further alleged that the
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petitioner had also instituted a false case against his brother and
thereafter he came on 30.12.2004 at around 11.00 A.M. , inquired
about his brother ,Salam Iraqui, and threatened him to close the shop
after abusing him and his brother and warned the staff not to come to
the shop. He also alleged that the petitioner then entered in their shops
and took away 19 Mobile hand sets , 13 re-charge coupons and
Rs.14,000/- in cash from the pocket of the complainant , for which no
receipt was granted. It was also alleged that he was taken to the Police
Station and kept in the Hazat wherefrom co-accused Sudhir Kunwar
took him out, asked him about his brother and threatened that his
brother would be killed in a showy encounter. He was also asked to
pay for reserving the Auto-Rikshaw to take him to the court and when
the complainant refused he forcibly took out Rs.380/- from his pocket
and handcuffed him. It is said that although the learned Chief Judicial
Magistrate directed for his release on 15.12.2004 he was released only
on 16.12.2004 and after he had submitted a written complaint to the
Senior Police Officers on 17.12.2004, the petitioner again came to his
shop on 18.12.2004 and asked him as to how he came out of custody
so early and also inquired about his brother. He further alleged that on
the date of occurrence they had taken away 13 Mobile hand-sets and
Rs.21, 000/- from the cash counter and re-charge coupons worth
Rs.17, 000/- apart from a licensed rifle with 25 live cartridges along
with the licence , for which complaint Case no.2401 of 2004 had been
filed by his brother. The further allegation is that the petitioner was
continuously threatening him to close the shop for the last two to three
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months and a criminal writ being Cr.W.J.C.No.776 of 2004 had also
been filed. It was also alleged that the petitioner sealed his shop
notwithstanding an order of status quo from a competent court. A
request for return of goods was not heeded and instead he was
threatened of being sent behind the bars.
The common submission on behalf of the petitioner in
respect of both cases is that Salam Iraqui had been allotted the
disputed shop on 4.3.2003 and on 1.12.2003 one Md. Shahwaz
Khan filed Complaint Case no.2638(C) of 2003 against Salam Iraqui
for misbehaviour and assault which was sent to Kotwali Police
Station under Section 156(3) Cr.P.C. and on the basis thereof Kotwali
P.S. Case No.80 of 2004 dated 15.2.2004 was registered under
Section 379 and other allied Sections of the Penal Code. Then again
on 13.4.2004 the Maurya Lok Dukandar Sangh gave a written
complaint to the Patna Regional Development Authority ( in short
"PRDA") against him for sub-leasing one of the shops by Bihar
Emporium and on the basis thereof the Estate Officer, PRDA vide
his letter No.973 directed the Managing Director of Bihar State
Small Scale Industries Ltd. to file a show cause , failing which the
allotment would be cancelled and by another letter dated 19.8.2004,
the Managing Director was directed to remove the illegal construction
, failing which the allotment would be cancelled. The said Salam
Iraqui filed Title Suit No.45 of 2003 against the order of vacating the
shop and by order dated 4.9.2004 the learned Munsif -III,Patna was
pleased to order for status quo to be maintained. However, in the
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meantime the said Salam Iraqui was arrested by the A.S.I. of Kotwali
police in connection with Kotwali P.S. Case No.80 of 2004 and in
course of search the licensed rifle and cartridges were seized and kept
in the Malkhana of the Police Station, for which a Sanha entry was
accordingly made. It has also been submitted that the complainant
wanted to be released from police custody but when the petitioner
declined he carried a grudge against the petitioner herein and after he
release from jail on 29.9.2004 he filed Complaint Case no.2401(C) of
2004 on 4.10.2004 on false allegations . A report was called for from
the Senior Superintendent of Police by the learned Sub Divisional
Judicial Magistrate, Patna, in respect of the allegations against the
petitioner and the report submitted was against the complainant and
his behaviour . It is also submitted that the petitioner was creating
nuisance in Maurya Lok Complex premises by way of use of
unauthorized power for which the shopkeepers met the Vice-
Chairman of PRDA and Vice -Chairman in exercise of his powers
under Section 85(A) of the Bihar Regional Development Authority
Act passed a reasoned order in Misc.Case No.213A /2004 for
removal of encroachment from Shop Nos.105 and 106 which had
been allotted to Bihar Emporium and a request was made to the
District Magistrate for appointment of a Magistrate for removal of
encroachment and depute police force for the said purpose and on the
basis thereof the shop of the complainant was sealed by the
Magistrate in presence of other businessmen and thereafter on return
to the Police Station a Station Diary entry was made in respect
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thereof on 13.10.2004 .Then again by non F.I.R. No.27 of 2004 the
petitioner recommended the Sub Divisional Officer, Sadar Patna to
initiate a proceeding under Section 107 Cr.P.C. against the
complainant in view of the complaint made by the shop-keepers of
Maurya Lok Complex against the complainant with respect to his
nefarious activities and threats given to other shop-keepers.
Aggrieved thereby the complainant filed Complaint Case No.2686 of
2004 against the petitioner and two more persons including the Vice-
Chairman, PRDA. and in the meantime , chargesheet was submitted
against the complainant in Kotwali P.S. Case No.80 of 2004 .
Thereafter one Raj Kumar filed Kotwali P.S. Case No.527 of 2004
against the complainant and his brother under Section 386 I.P.C. and
the brother of the complainant was arrest and sent to jail in
connection therewith and the said brother on his release from judicial
custody filed Complaint Case no.3087 of 2004 against the petitioner
and one Sub-Inspector on false ground of giving threat and taking out
several items including money from his shop.
It has further been submitted that by order dated 10.1.2005,
the learned Munsif-III, Patna rejected the application filed for
extension of order of status quo passed in Title Suit No.45 of 2003.
Subsequently, the Estate Officer, PRDA requested the petitioner
herein as Officer Incharge for taking legal action against the
concerned persons for opening a sealed shop and in pursuance of the
aforesaid request, Kotwali P.S. Case no.97 of 2005 was registered on
28.2.2005. In the meantime , the Inspector General of Police ,Patna
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Zone vide his letter dated 20.5.2005 submitted a report in relation to
Kotwali P.S. Case No.85 of 2004 with an observation that the
complainant used to indulge in illegal works , for which legal action
has been taken against him. Prior to this the Senior Superintendent of
Police vide his Memo dated 27.2.2005 submitted a written report
before the Lokayukta with respect to the allegations levelled by the
complainant against the petitioner and agreed with the report
submitted by the Deputy Superintendent of Police ( Law & Order)
who had observed that the complainant was prejudiced against the
petitioner for the legal actions taken against him.
On the aforesaid background the specious submissions of
the learned counsel for the petitioner is that he was entitled to the
protection of Section 197 Cr.P.C. since the offence alleged to have
been committed had something to do or was related in some manner
with the discharge of his official duty. It was submitted that the
language of Section unmistakably shows that the bar on exercise of
powers by the court to take cognizance is mandatory and the previous
sanction from the competent authority for prosecution of the public
servant who is an accused of having committed an offence either in
the execution of his duty or in the purported execution of his duty is
essential to take cognizance. In this connection, it was submitted that
the story of forcibly taking away Mobile sets , re-charge coupons and
cash by the petitioner has been propounded to make out a genuine
case of theft and to show that the action of the petitioner was not in
discharge of his official duty.
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The submission advanced by the learned counsel for the
petitioner was sought to be assailed by the learned counsel for the
complainant -Opp.Party no.2 by submitting that the overt act of the
petitioner in both cases could not be said to be an act in discharge of
his official duty and that he exercised his official powers not only to
abuse but also to extend threats to the complainants as also assault
their staff members and in course thereof forcibly took away several
articles from the shop without either paying for it or giving a receipt
for the same or even preparing a seizure list.
Admittedly, the order of status quo of the Munsif had not
been extended and the shop in question was sealed under the
supervision of the Executive Magistrate, who had been deputed by the
District Magistrate for the purpose on the request of the Vice-
Chairman, PRDA. This only goes to show that the sealing of the shop
had been done by the Magistrate and the police force had been
deployed only to assist the Magistrate. It is manifest that the
petitioner was present at the place of occurrence in his official
capacity to assist the Magistrate in sealing the shop of the complainant
in pursuance of the judicial order of the Vice-Chairman, PRDA. It
further appears that the overt acts alleged against the petitioner have
been superimposed to give a criminal tinge and trappings so as to
make believe the commission of offences which were neither
commensurate nor in exercise of the official duty of the petitioner. In
such circumstances, it cannot but be held that the acts complained of
by the complainants against the appellant did not have a reasonable
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nexus with the official duty of the petitioner. Accordingly, the
appellant was entitled to the immunity from criminal proceeding
without sanction provided under Section 197 Cr.P.C.
There is another aspect of the matter. The complainants
do not appear to have approached the Magisterial Courts with clean
hands and have deliberately attempted to suppress relevant and
material facts to make out a case of being oppressed and victimized by
the petitioner herein. Such unwarranted prosecution cannot be
permitted to continue.
In the result, the entire criminal proceeding in both
complaint cases so far as the petitioner is concerned is hereby quashed
and both the applications are allowed.
( Abhijit Sinha, J )
Patna High Court,Patna
Dated : the 16th April, 2009
Nawal Kishore Singh/A.F.R