Jharkhand High Court
Manik Lal & Ors vs State Of Jharkhand & Anr on 21 September, 2011
Author: H. C. Mishra
Bench: H. C. Mishra
CRIMINAL MISCELLENOUS PETITION NO.1267 OF 2009
In the matter of an application under Section 482 Cr.P.C.
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1. Manik Lal
2. Mani Bhushan Kumar
3. Vijay Shankar Yadav
4. Jai Prakash Keshri
5. Raj Kumar
6. Digvijay Narayan Singh
7. Md. Murshale
8. Shailendra Yadav
9. Dhyan Singh
10. Anil Kumar Sharma
11. Daya Ram Yadav
12. Satish Kumar
13. Mahtab Singh
14. Rakesh Kumar
15. Sita Ram Mina
16. Sheo Raj Singh
17. P. Harendra Singh ..... ... Petitioners
Versus
1. The State of Jharkhand
2. Kartik Oraon ..... ... Opposite Parties
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For the Petitioners : M/s Mahesh Tewari, Pratiysh Lal
& Pankaj Kumar Dubey, Advocates
For the Opposite Parties : Mr. Mukesh Kumar, A.P.P.
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PRESENT : HON'BLE MR. JUSTICE H. C. MISHRA
C.A.V. On 16.09.2011 PRONOUNCED ON: 21. 09.2011
H.C.Mishra, J. This petition has been filed for quashing the entire criminal
proceeding arising out of Jagannathpur P.S. Case No. 26 of 2008
corresponding to G.R. No. 134 of 2008, presently pending before the Court of
Session, Chaibasa in S.T. No. 206 of 2009. It has also been prayed that the
order taking cognizance dated 12.12.2008 in the said case as also the order
framing charges against the petitioners by the learned Additional Sessions
Judge- Fast Track Court-V, Chaibasa, by order dated 19.8.2009 be also
quashed.
2. According to the prosecution case, the petitioners, who were the
personnel of Railway Special Protection Force and Railway Protection Force,
were returning back after performing their duties on the vehicle of R.P.F. and
they were also armed with arms and ammunitions. While returning back, they
came across a road jam by the villagers due to some altercations between the
villagers and the drivers of the dumpers transporting iron ore, due to demand of
levy. The R.P.F. personnel, requested the villagers to allow them to pass-bye
and when the villagers did not allow them, the R.P.F. personnel tried to
negotiate the jam through the side of the road alongwith the vehicle,
whereupon they were attacked by the villagers by brickbats. It is alleged that
the villagers also used bows and arrows causing injuries to the R.P.F.
personnel, caused damage to the vehicle and also to the arms being carried by
them, forcing them to use force. They had to fire in air and ultimately, they also
had to resort to firing, in which, two persons died. As the vehicle of the R.P.F.
was badly damaged and some arms were also damaged by the villagers, the
R.P.F. personnel had to leave the vehicle at the road itself and they ran for their
safety towards the police station and they also informed the police about the
occurrence.
3. On the basis of the information given by the petitioner Manik Lal,
Jagannathpur P.S. Case No. 25 of 2008 was instituted, F.I.R. whereof has been
brought as Annexure-2 to this petition. Subsequent thereto, another F.I.R. was
lodged by one Kartik Oraon, the son of one of the deceased stating that firing
was made by the R.P.F. personnel causing death of his father and on the basis
of the fradbeyan of said Kartik Oraon, Jagannathpur P.S. Case No. 26 of 2008
was instituted, corresponding to G.R. No. 135 of 2008 for the offences under
Sections 304, 308, 34 of the Indian Penal Code and Section 27 of the Arms
Act, F.I.R. whereof has been made Annexure-1 to this petition, out of which
the present criminal proceedings arise against these petitioners.
4. Upon investigation, the police submitted charge sheet against the
petitioners, which has been brought as Annexure-6, in which, it is clearly stated
that due to altercation between the dumper drivers and the villagers, there was
a road jam, during which, the R.P.F. personnel also came there and they
wanted to negotiate the jam, whereupon the villagers attacked the R.P.F.
vehicle, injured them and they also caused damage to the R.P.F. vehicle and
the arms, due to which the R.P.F. personnel had to resort to firing, in which,
two persons died. However, on the basis of the charge sheet submitted against
these petitioners, cognizance was taken by the Chief Judicial Magistrate,
Chaibasa by oder dated 12.12.2008. It appears from the documents brought on
record by the petitioners that processes were issued to the petitioners, upon
which, the petitioners appeared before the Court below and the case was
committed to the court of Session, which was received in the Court of Session
on 19.8.2009. On the same day, the case was transferred to the Court of
Additional Sessions Judge, Fast Track Court-V, Chaibasa for favour of
disposal and on the same day, by order dated 19.8.2009, charges were framed
against all these petitioners.
5. Learned counsel for the petitioners has challenged the order
taking cognizance, as also the order framing the charges by the Additional
Sessions Judge-Fast Track Court-V, Chaibasa, mainly on two grounds; firstly,
it is submitted that mandatory provisions of Section 20(3) of the Railway
Protect Force Act 1957, (herein after referred to as the 'Act') have not been
complied with and without compliance of the same, the criminal proceedings
could not be instituted against these petitioners. It is further submitted that
charge was framed against these petitioners in a hot haste without giving any
opportunity to the petitioners for filing application for discharge and without
even supplying the police papers; and on this score, the order passed by the
learned Additional Sessions Judge-Fast Track Court-V, Chaibasa framing the
charges against these petitioners cannot be sustained in the eyes of law.
6. Learned counsel for the petitioners has drawn the attention of this
Court towards Annexures-2 and 2/1, which are the movement orders, to show
that the petitioners were sent on official duty along with arms and
ammunitions. Annexure- 4 is the seizure list, to show that the vehicle of the
R.P.F. was seized in damaged condition along with stones thereon. Annexure-5
is the report to show that the arms of the petitioners were found in damaged
condition.
7. Learned counsel has further drawn the attention of this Court
towards Section 11 of the Act to show that it shall be the duty of every superior
officer and the member of the Force to protect and safeguard, inter alia, the
railways property, passenger area and passengers; and towards Rule 243.2 and
further to Rule 243.4 of the Railway Protection Force Rules, 1987 (herein after
referred to as the 'Rules') to show that the use of force and even the power to
open fire are permissible for the protection of life and property in the given
situation, if so necessary. Learned counsel has submitted that whatever action
was taken by the petitioners, it was only when they were not allowed to move
further and they were attacked upon, in which, the vehicle was badly damaged,
arms were also damaged and personnel of the Force were also injured, forcing
the petitioners to use the force to protect the railway properties and also their
lives, as is apparent from Annexure-3, which is the F.I.R. filed by the petitioner
No.1 and also Annexure-6, which is the charge sheet, submitted by the police
in the present case. It has further been submitted that the action of the
petitioners were duly protected under Section 20(3) of the Railway Protection
Force Act, which reads as under:-
"20. Protection of acts of members of the Force.-
(1) xxxxxxxxxxx
(2) xxxxxxxxxxxxxx
(3) Notwithstanding anything contained in any other law for the
time being in force, any legal proceeding, whether civil or
criminal, which may lawfully be brought against any member of
the Force for anything done or intended to be done under the
powers conferred by, or in pursuance of, any provisions of this
Act or the rules thereunder shall be commenced within three
months after the act complained of shall have been committed
and not otherwise; and notice in writing of such proceeding and
of the cause thereof shall be given to the person concerned and
his superior officer at least one month before the commencement
of such proceeding". (emphasis supplied).
8. A bare perusal of the aforesaid provision, clearly shows that the
provision is mandatory in nature and no action could have been initiated against
the petitioners without fulfilling the requirements thereof. Learned counsel has
drawn the attention towards the decisions of the Hon'ble Patna High Court in
the case of Naresh Mohan Prasad & ors. Vrs. State of Bihar & anr., as reported
in 2000 Cr. L.J. 424 and in the case of D.S. Bhoria & another Vrs. N. Singh, as
reported in 1970 Cri. L. J. 642, wherein, the Hon'ble Patna High Court has
held that the prosecution against member of a Railway Protection Force cannot
be continued without the non-fulfillment of the mandatory provision of Section
20(3) of the Act, failing which, the prosecutions were quashed by the Patna
High Court. Learned counsel has also submitted that once there is a mandatory
provision under the Special Statute, the general Statue is to give its way and the
procedure provided in the Special Statute has to be followed. In this
connection, learned counsel has placed reliance upon the decision of the
Hon'ble Supreme Court of India in the case of Raj Kapoor Vs. Laxman, as
reported in (1980) 2 SCC 175, as also of this Court in Bhotna Mahto Vrs. The
State of Jharkhand, as reported in 2009 (2) JLJR 258. Placing reliance of these
decisions, learned counsel for the petitioners has submitted that criminal
proceeding against these petitioners cannot be continued and the same is fit to
be quashed.
9. Learned counsel for the petitioners has also drawn the attention of
this Court towards the orders passed by the learned Court below, which have
been brought on record, to show that cognizance was taken against these
petitioners on 12.12.2008 and thereafter on several dates, the case was
adjourned for appearance of these petitioners, for which the summons were
ordered to be issued. Lastly on 9.7.2007, the learned Judicial Magistrate
directed the office to issue bailable warrants against the petitioners fixing
18.8.2009as the service report of the summons were not received. It further appears that the petitioners appeared in the Court below and on 19.8.2009, the commitment notification was received in the Court of Session, on the same date, the case was transferred to the Court of Additional Sessions Judge, Fast Track Court-V, Chaibasa, and on the same very day itself, i.e. on 19.8.2009, charges were framed against these petitioners without supplying the police papers to the petitioners and without giving any opportunity to the petitioners for filing any application for discharge. Learned counsel has submitted that even this action of the Court below cannot be sustained in the eyes of law and the order framing the charges is liable to be set aside.
10. Learned A.P.P. appearing on behalf of the State, on the other hand, submitted that there is no illegality in the impugned order, as also in continuance of the criminal proceedings against these petitioners, inasmuch as, from the F.I.R. filed by the R.P.F. personnel itself, it is apparent that the Force was returning back after performing their duties and as such, it cannot be said that the force was used by these petitioners in exercise of their official duty. This submission of the learned counsel cannot be accepted, inasmuch as, admittedly the Railway Protection Force was with arms and the vehicle, which were the railway properties, which were badly damaged by the mob and it was the duty of the petitioners to protect the railway property.
11. After having heard the learned counsels for both sides and upon going through the records, I am of the considered opinion that Annexure-6, which is the charge sheet filed by the police after investigation, clearly mentions that the accused persons were the R.P.F. personnel, they were attacked by the mob and their vehicle and arms were badly damaged and even, the R.P.F. personnel were injured. In this view of the matter, even though charge sheet was submitted by the police in the Court below, the Court below could not have taken the cognizance of the offence in absence of the mandatory requirement of Section 20(3) of the Act, which clearly lays down that no proceeding, criminal or civil, can be lawfully brought against any Member of the Force without complying its mandatory requirements, which had to be followed, failing which, cognizance could not have been taken by the Court below. I find sufficient force in the submission of the learned counsel for the petitioners in assailing the order passed by the learned Additional Sessions Judge-Fast Track Court-V, Chaibasa in a hot haste and it appears that without giving any opportunity to the petitioners to file the application for their discharge and even without taking any precaution to see whether the police papers were actually supplied to the petitioners or not, he proceeded to frame the charges against the petitioners. Accordingly, neither the order passed by the learned Chief Judicial Magistrate taking cognizance of the offence, nor the order passed by the Additional Sessions Judge-Fast Track Court-V, Chaibasa framing charges against these petitioners can be sustained in the eyes of law.
12. For the foregoing reasons, since I have held that the criminal proceeding could not be instituted against these petitioners, the entire criminal proceeding in Jagannathpur P.S. Case no. 26 of 2008 corresponding to G.R. No. 134 of 2008, presently pending in the Court of Session at Chaibasa in S.C. No. 206 of 2009 cannot be continued and the same is, hereby, quashed. This criminal miscellaneous petition is accordingly, allowed.
( H. C. Mishra, J.)
Jharkhand High Court, Ranchi
Dated the .09.2011
N.A.F.R./ R.Kr.