Patna High Court - Orders
Prem Raj Chauhan vs State Of Bihar & Anr on 27 June, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.4027 of 2010
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1. Prem Raj Chauhan S/O Sri Naresh Prasad, At Present Officer Incharge
Of Darbhanga Sadar Police Station R/O Vill.- Chauhan Tola, Khuskibagh,
P.S.- Sadar Purnea, Distt.- Purnea
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Ram Prasad Ram S/O Thakkan Ram R/O Vill.- Jagatpur, P.S.- Phulparas,
Distt.- Madhubani
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.Ajay Thakur, Adv.
Mr. Amit Kumar, Adv.
For the Opposite Party/s No.2:Mr. Hriday Narayan Pandit
For the State: Mr. S.M. Rahman, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
5 27-06-2012Petitioner has challenged order dated 04.06.2009 passed by ACJM, Jhanjharpur in Complaint Case No.69/2007 whereby and whereunder the learned lower court took cognizance for an offence punishable under Sections 302/34 of the IPC as well as summoning the petitioner including others along with order dated 02.01.2010 passed by learned Additional District and Sessions Judge, 2nd, Madhubani dismissing the Cr. Revision No. 396/09 filed against aforesaid order dated 04.06.2009.
2. Ram Prasad Ram, O.P. No.2, filed complaint petition no. 69/07 putting the date of occurrence from 03.11.2006 to 04.11.2006 against the petitioner and two others disclosing 2 therein that on account of misappropriation of Government fund, as per order of the present Mukhiya Phulparas P.S. Case No.208/2006 was instituted against Dinesh Ram and in the aforesaid background there was ruckus on 03.11.2006 at 6:00 A.M. followed with scuffle amongst two groups wherein brother of complainant sustained injury resulting institution of Phulparas P.S. Case No. 210/2006.
3. The O/C, Phulparas got complainant, his brother, Sukhdeo Ram, Madan Ram, Diwan Ram, Ranjan Singh, Vidyanand Singh, Suresh Singh and Sitaram Singh apprehended and admitted to Referral Hospital, Phulparas. Doctor had referred, Sukhdeo, Diwan, Madan, Ranjan and Vidyanand to DMCH under the influence of accused persons on account of which they all were brought to police station and from there Madan, Ranjan and Vidyanand were referred to PMCH while Sukhdeo Ram was detained at P.S. Inspite of insistence of complainant, the O/C did not accede to his release. Complainant returned back to his house. On 04.11.2006 at about 1:00 P.M. a rumour has floated in the village regarding death of Sukhdeo Ram in the Hajat whereupon complainant had gone to P.S. and found his brother dead lying outside the Hajat. On query the O/C abused him.
4. The learned ACJM proceeded with an enquiry under 3 Section 202 of the Cr.P.C. wherein complainant was examined on S.A. along with other witnesses followed with taking of cognizance by the order impugned and that happens to be cause for filing instant petition.
5. It has been submitted on behalf of the petitioner that petitioner happens to be a Government servant being Officer Incharge of Phulparas P.S. and from the narration of the complaint petition, it is evident that whatever allegation had been attributed that was within the coverage of in due discharge of the duty. Hence, it was incumbent upon learned lower court to insist for sanction in accordance with Section 197 of the Cr.P.C. before taking of cognizance. As such, the order of the cognizance happens to be bad. It has further been submitted that there happens to be inconsistency amongst the statement of the witnesses whosoever been examined during course of enquiry apart from the fact that none of the witnesses including the complainant himself happen to be an eyewitness to occurrence. Therefore, on merit of the case also, the order impugned is not justified.
6. Then submitted that the instant compliant cannot proceed because of the fact that for the same cause Phulparas P.S. Case no. 210/2006 had already been instituted and the matter was being investigated upon. Sukhdeo Ram, deceased was one of 4 injured of that very case and after whose death Section 302 of the IPC was added. Apart from this, it has further been submitted that learned lower court before proceeding with complaint case no.69/07 should have adopted the procedure prescribed under Section 210 Cr.P.C. asking for report from the P.S. concerned when it was already divulged in the compliant petition regarding presence of Phulparas P.S. Case No.210/2006 for the same cause. It has further been submitted that during course of investigation of Phulparas P.S. Case No. 210/2006, the son and wife of the deceased was examined under Section 161 as well as 164 of the Cr.P.C. whereunder they have erased the allegation whatever been leveled by the complainant who happens to be step brother of deceased, Sukhdeo Ram. It has further been submitted that there happens to be inordinate delay in launching of the complaint and this is sufficient to infer as a malicious prosecution which has been filed with a purpose to implicate the petitioner along with other co-accused to satisfy personal grudge and vendetta in the background of dirty village politics. So, submitted that in the aforesaid background, the order impugned as well as the order passed by learned lower court happens to be bad in law as well as on facts and is fit to be set aside.
7. On the other hand, learned lawyer for O.P. No.2 by 5 filing counter affidavit controverted each and every aspect so raised on behalf of the petitioner. It has further been submitted that from own annexure of the petitioner the nefarious activities adopted by the petitioner resulting death of Sukhdeo Ram is visible. Then submitted that for the purpose of taking of cognizance, only prima facie material has to be seen which from the statement of witnesses including S.A. of the O.P. No.2 being fully supported with. Then submitted that the other grounds whatever been argued on behalf of the petitioner is a matter of trial. It has further been submitted that there happens to be concurrent finding of the court below and unless and until there happens to be a glaring defect persisting on its face, the same cannot be set aside in usual manner.
8. So far plea of State is concerned, it has been submitted that though at the time of taking of cognizance only prima facie material has to be seen but the order of cognizance is subject to scrutiny when there happens to be malicious prosecution.
9. From the pleading as well as assertion of rival party, it is abundantly clear that Sukhdeo Ram happens to be an injured of Phulparas P.S. Case No. 210/2006 which was registered on the fardbeyan of Dinesh Ram who stood as accused no.3 under the 6 present Complaint petition no. 69/07. It is also evident from the complaint petition that so many injured including the complainant and deceased Sukhdeo Ram was taken to hospital for their treatment. From Annexure-3/A, it is evident that Sukhdeo was examined by the doctor on 03.11.2006. It is also evident there- from that he was not at all referred to DMCH. For better appreciation the injury report, Annexure-3/A is incorporated below:-
(i) pain abdomen, (ii) pain at left side of chest, (iii) pain at right side of (not readable) (iv) pain Rt calf muscle
10. Ext-4/1 happens to be a certificate granted by the doctor of Referral Hospital, Phulparas disclosing therein that deceased Sukhdeo Ram was under his treatment from 03.11.2006 at 5:40 P.M. till his death on 04.11.2006 at 11:05 A.M.
11. Annexure-4 happens to be another certificate showing that Sukhdeo Ram is already referred to DMCH on 03.11.2006 at 6:00 A.M. live. He died on 04.11.2006 at 11:05 A.M. So presence of these certificates on account of inconsistency suggest its creation under mysterious circumstances and put a questionnaire over explanation given at the end of petitioner during course of argument.
12. Second prosecution for same version is 7 impermissible but where there happens to be different version, then in that event, maintainability of another case neither can be doubted nor challenged. Moreso, from Annexure-2 FIR of Phulparas P.S. Case No. 210 of 2006 registered at the behest of Dinesh Ram, in consonance with the averments of the present complaint petition, two distinct narrations for the death of Sukhdeo has been brought in picture. That means to say there happens to be a version and counter version of the allegation. In Phulparas P.S. Case No. 210/2006, Dinesh Ram happens to be the informant while in the instant complaint Dinesh Ram happens to be a co-accused. So far judicial pronouncement is concerned as reported in 2009 Cr.L.J. 958, 2010 AIR SCW 3683 two FIRs for the same offence with different version or when a new discovery is made on the factual foundation is permissible.
13. Now coming to the question of sanction so required under Section 197 of the Cr.P.C. and raising the plea with an aid of Ruling laid down by the Hon'ble Apex Court in 2006(4) Supreme Today page 645, the same has been considered by the Hon'ble Apex Court in a decision reported in 2009 Cr.L.J. 1318 along with other decisions laid down by the Hon'ble Apex Court on this score and in para-14 it has been concluded:-
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"The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava's case (supra) holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197, Cr.P.C.. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava's case (supra), the underlying object of Section 197, Cr.P.C. is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197, Cr.P.C. and have to be considered de hors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned. "
14. At the present juncture, another proviso available under the Indian Penal Code under the heading of general exception has also to be looked into wherein Section 79 says:-
"79. Act done by a person justified, or by mistake of fact believing himself justified, by law.- Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. "9
15. Section 79 of the IPC does not command Section 197 of the Cr.P.C. but from plain reading of Section-79, it is evident that when a person is found justified by law in doing a particular act, is found to be not an offence. That means to say whatever act/overt-act having been committed at the hands of that person under the guise of proper law then in that event the prosecution of that person appears to be non permissible. That means to say the act/overt-act which-ever may be must be inter- linked with particular law permitting to exercise such right.
16. It appears that Section 79 of the IPC was taken into consideration by the legislature while providing a safeguard to the public servant who in his due discharge of duty has performed particular act which subsequently been averred by the complainant to be an offence in the eye of law and in this circumstance his prosecution appears to be prohibited unless and until there happens to be grant of sanction by the competent authority after due appreciation of facts of the case.
17. The aforesaid matter was taken into consideration by the Hon'ble Apex Court in a decision reported in 2011 (6) SCC 1. The facts of the case disclosed that there was murder of a person at the hands of police personnel belonging to Delhi Police in a fake encounter and there was conviction recorded by the 10 successive learned lower court which was confirmed by the Hon'ble Apex Court. The matter has been dealt with from para- 79 and after dealing with so many decisions, in para-90 it has been observed that:-
"In the light of the facts that have been found by us above, it cannot, by any stretch of imagination, be claimed by any-body that a case of murder would fall within the expression of "colour of duty" ".
18. Taking into account the averments made under Annexure-2 in consonance with Annexure-3A, 4, 4/A, for the present purpose, it appears that petitioner is not in a position to expose himself to be protected by virtue of Section 197 of the Cr.P.C.
19. Now, coming to scope of 210 of the Cr.P.C., it looks better to incorporate Section 210 which runs as follows:-
'Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.- (1) When in a case instituted otherwise than on a police report(hereinafter referred to as a complaint case), it is made to appear to the magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police 11 report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.'
20. From Sub-section 1 of Section 210 Cr.P.C, it is evident that the Magistrate is under obligation to stay the further proceeding of complaint petition in case, for the same occurrence there happens to be investigation pending followed with calling for a report from the P.S. concerned relating to the same. Admittedly, for the assault having over complainant, his brother deceased, Sukhdeo Ram along with other injured Phulparas P.S Case No. 210/2006 was already instituted and the reference of aforesaid event is itself visualizing from the complaint petition. Then in that event, it was incumbent upon the learned Magistrate to call for a report from the P.S. concerned on that very score because of the fact that from Annexure-2 it is evident that for the assault over the person of Sukhdeo along with others Phulparas P.S. Case No. 210/2006 was already instituted and further after the death of Sukhdeo Ram, Section 302 was added on 06.11.2006 that means to say before filing of instant case. The reasons whatever is coming out from the revisional courts' order is not appearing convincing and further 12 appears to be in contravention of Section 210(1) of the Cr.P.C. The assertion/allegation made in the complaint was subject to adjudication after getting the report as well as having application of judicial mind over the same taking recourse of sub-section 3 of Section 201 Cr.P.C.
21. Consequent thereupon, the successive orders passed by successive courts cannot sustain. Hence, both are set aside. Petition is allowed.
22. However, the learned lower court will be at liberty to proceed in accordance with Section 210 of the Cr.P.C. which itself commands the subsequent event coming out from the police case as well as complaint case.
(Aditya Kumar Trivedi, J) Patna High Court Date the 27th June 2012 Md.Perwez Alam/AFR