Jharkhand High Court
Mohan Pandey vs State Of Jharkhand on 21 April, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1475 of 2017
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1.Mohan Pandey, son of late R.P.Pandey, Police Sub Inspector, Officer in Charge, Burma Mines Police Station, Jamshedpur, PO and PS Jamshedpur, District Singhbhum East.
2.Ramesh Tiwari @ Ramesh Kumar Tiwary @ Ramish Tiwari, son of late Subhash Tiwari, R/o Village Urda, PO Thanachenari, PS Chenari, District Rosta (Bihar)
3.Aurangzeb Khan, son of Md. Shabuddin Khan, Policemen of Burma Mines Police Station, Jamshedpur, District Singhbhum East..... Petitioners
-- Versus --
1.State of Jharkhand
2.Radha Rani Paswan, wife of late Janak Ram Paswan, resident of Carriage Colony, PO and PS Burma Mines, Jamshedpur, District East Singhbhum ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Nagmani Tiwari, Advocate For the State :- Mr.Ashok Kumar, Advocate For the O.P.No.2 :- Mr. P.S.Dayal, Advocate
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9/21.04.2022 Heard Mr. Nagmani Tiwari, the learned counsel for the petitioners, Mr.Ashok Kumar, the learned counsel for the respondent State and Mr. P.S. Dayal, the learned counsel appearing for the O.P.no.2.
This petition has been filed for quashing the order dated 31.01.2017 passed in Criminal Revision No.216/2015 by the learned Additional Sessions Judge, 1st East Singhbhum, Jamshedpur, whereby he has dismissed the revision petition and affirmed the order passed by the learned Chief Judicial Magistrate, at Jamshedpur dated 29.07.2015.
The complaint case was filed alleging there in that the complainant that on 11.11.2014 at about 9 p.m. in the night hours when the complainant fell asleep in her house, she heard the noise of knocking on the door and on such sudden noise, she and her daughter frightened as there was no male member in her house and in the meantime the accused no.1 with some other persons in police uniform forcibly entered inside the complainant's house by breaking open the door. In the guise of search the damaged. That the accused no.1 after trespassing into the complainant's house illegally, on the protest raised by the complainant, shouted at her saying that he is the Bada Babu of Burma mines thana and he came to raid the complainant's house as she sells illicit liquor saying when the complainant denied to the accused no.1's allegation saying that she did not commit any offence and why they come to raid her house, said accused no.1 after asking her name and husbands name 2 started abusing the complaint in present of the other persons saying that "Tu chote jati ki hokar bhi mujse jubanladati ho" and other persons complaining the accused no.1 also started abusing the complaint and her daughter using abusive remarks to their caste, as the complainant and her daughter are the members of schedule caste community and the accused no.1 by making further allegations that the complainant and her daughter do business of illicit liquor storing in their house by physically touching the body of the complainant and pushing her away by force the accused no.1 started looking for something but as the complaint and her daughter are innocent keeping no illegal thing in their house, the accused no.1 with his associates left the place using abusive and derogatory remarks against the complainant and her daughter in public as due to such noise and commosion on lookers/ nearby residents gathered there although keeping some distance from the complainant's house. That the complainant made written complaint regarding said incident in Birsa Nagar police station (SC/ST Cell) but after submitting the complaint she have been continuously receiving threat from police men. On or about and in between the accused no2. Santosh Tiwary and accused no.3 Aurangzeb Khan (both policemen of Burmamines Police station ) came to the house of the complainant and gave threatenings to the complainant and her daughter to withdraw said complaint or else she along with her daughter will be implicated in false cases and the police will destroy their life. Said fact was also reported to the District police civil authority and also the DIG, Kolhan and DGP, Ranchi but even then the complainant and her family are under continuous threat and suffering constant fear and oppression to their life and limb for any untoward incident by the hands of the accused persons.
Mr. Nagmani Tiwari, the learned counsel appearing for the petitioners submits that the petitioner no.1, who was Officer in Charge of Burma Mines Police Station raided the complainant's house on getting secret information that illicit liquor is being sold and on raid conducted by the police officials the illicit liquor was recovered. He further submits that the complainant's son Raj Kumar Paswan was arrested by the petitioner no.1 and accordingly the case was lodged vide C-3 Case No.41/2014 in which son of Raj Kumar Paswan pleaded his guilt and deposited fine of Rs.10,000/- before the Lok Adalat on 27.06.2015. He further submitted that the raid was conducted at the instance of Excise Inspector as Assembly Election was notified and in view of that it was requested to raid adjacent area to recover illicit liquor. He submits that what has been 3 done by the petitioners was on the discharge of official duty and petitioners are directed protected under section 197 Cr.P.C. To buttress his argument on the point of Section 197 Cr.P.C he relied in the case of "D.T. Virupakshappa v. C. Subash", (2015) 12 SCC 231. Paragraph nos. 6, 9 and 10 of the said judgment are quoted hereinbelow:
"6. In the case before us, the allegation is that the appellant exceeded in exercising his power during investigation of a criminal case and assaulted the respondent in order to extract some information with regard to the death of one Sannamma, and in that connection, the respondent was detained in the police station for some time. Therefore, the alleged conduct has an essential connection with the discharge of the official duty. Under Section 197 CrPC, in case, the government servant accused of an offence, which is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, the previous sanction is necessary.
9. In our view, the above guidelines squarely apply in the case of the appellant herein. Going by the factual matrix, it is evident that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order.
10. The appeal is hence allowed. The impugned order by the High Court is set aside, so also, the proceedings initiated by the Civil Judge (Junior Division) and JMFC at Chikkanayakanahalli, Karnataka in CC No. 74 of 2009 taking cognizance and issuing process to the appellant. It is made clear that our judgment is only on the issue of sanction and we have not considered the matter on merits and that this judgment shall not stand in the way of the respondent approaching the State Government for sanction under Section 197 CrPC. In case such sanction is obtained and the same is produced before the learned Magistrate, the Magistrate may proceed further in the case in accordance with the law."
By way of referring to supplementary affidavit by the petitioner, he submits that sanha was entered into in the police station that has been annexed in the supplementary affidavit. He submits that thereafter only the raid was conducted. He further submits that malafidely the case has been instituted against the petitioner and on the point of malafide, he relied in the case of "Ahmad Ali Quraishi v. State of U.P.", (2020) 13 SCC 435. Paragraph nos. 20, 21 and 23 of the said judgment are quoted hereinbelow:
4"20. From the sequence of the events as noticed above, it is clear that dispute regarding property between complainant and father of the appellant was pending much before the alleged incident dated 19-7-2016. The fact that on the same date of the incident Police visited the spot and had drawn proceedings under Sections 151, 107, 116 CrPC against both the parties and both the parties were required to maintain peace is a clear pointer to the nature of quarrel between the parties. It was more than six weeks thereafter that for the first time an application under Section 156(3) CrPC was filed by the complainant against the accused in the Court of Session Judge.
21. One more fact which transpire from order of the Sessions Judge summoning the accused need to be noted. As noted above, the complaint against the appellant and other accused refers to two incidents of 19-7-2016. One incident which took place near the public handpump outside the house of complainant and second, on the same day in the house of the complainant where he alleged that the appellants, their father and other accused entered into the house and started beating the complainant and his daughters. The Sessions Judge in his summoning order did not believe the second incident as alleged in the complaint. Non believing on one part of the incident as alleged in the complaint by the court clearly throws a shadow of doubt on the earlier part of the incident as alleged.
23. In the facts of present case, we are fully satisfied that present is a case where criminal proceedings have been initiated by the complainant with an ulterior motive due to private and personal grudge. The High Court although noticed the judgment of this Court in State of Haryana v. Bhajan Lal in the impugned judgment but did not examine the facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal case. The present case clearly falls in Category (7) of Bhajan Lal case and the High Court failed to exercise jurisdiction under Section 482 CrPC in quashing the criminal proceeding initiated by the complaint."
He submits that the raid was conducted on 11.11.2014 and the complaint was lodged on 28.12.2014. On these grounds he submits that this petition is fit to be allowed and the revisional order as well as the cognizance order may kindly be quashed. He further submits that the witnesses disclosed in the complaint have not been examined and two foreign witnesses have been examined in the enquiry and pursuant thereto, the cognizance has been taken.
Per contra, Mr. P.S. Dayal, the learned counsel appearing on behalf of the O.P.No.2 submits that there are allegations in the complaint petition and on examination of solemn affirmation and two enquiry witnesses the cognizance has been taken by the learned Magistrate. He 5 submits that the petitioners moved in criminal revision before the learned Sessions Judge and the learned Sessions Judge elaborately dealt with the matter and relying on the judgment of Hon'ble Supreme Court has dismissed the revision petition. Mr. Dayal, the learned counsel further submits that so far section 197 Cr.P.C is concerned, that can be looked into in the trial. He submits that since the petitioners were not discharging the official duty under section 197 Cr.P.C are not protected. To buttress his argument, he relied in the case of "Raj Kishore Roy v. Kamleshwar Pandey & Anr.", AIR 2002 SC 2861.
He further submits that the document brought on the record on solemn affirmation is forged one. He further submits that there are procedures prescribed how to arrest a female under section 46 Cr.P.C and arrest by private person and procedure on such arrest has been disclosed in section 43 Cr.P.C. He further submits that if a female is in the house, the procedure has been prescribed that one female police officer is required to be present which has not been done in the case in hand. For search procedure is there and an advance notice is required under section 47 Cr.P.C which is lacking in the case in hand and arbitrarily these officers have entered into the house of the complainant. He further submits that sub section 4 of section 100 of the Cr.P.C prescribed for calling of the independent witness of the locality if such raid is conducted which is also lacking in the case in hand.
Mr. Ashok Kumar, the learned AAG-III appearing for the respondent State submits that he has filed the counter affidavit wherein it is stated that sanha has been entered in the police station with regard to raid in question which has been annexed in the counter affidavit.
In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has perused the materials on record and solemn affirmation. The allegations made against the petitioners have been stated before the court concerned. The learned Magistrate has considered the statement on solemn affirmation as well as the enquiry witnesses and thereafter has taken the cognizance. The Magistrate has taken cognizance on solemn affirmation and two enquiry witnesses. After perusal of the counter affidavit filed by the respondent State it appears that before going for raid the sanha was entered. The documents on record to the counter affidavit also suggest that there is instance of Excise Department to made the raid and pursuant thereto the raid has been made. It has been disclosed that son of the complainant is having criminal antecedent and for that, the complaint case has been 6 filed and one of the case was compromised in Lok Adalat by paying penalty of Rs.10,000/-. The raid was conducted on 11.11.2014 and the complaint was filed on 23.12.2014. In the document brought on the record by the learned counsel for the respondent State it has been disclosed that the complainant has threatened the police officers of implicating in the false cases including the case under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act. A person who is having the criminal antecedent has got the complaint lodged by his mother. It appears that this is a malafide prosecution against the petitioners. Under Section 46 Cr.P.C the procedure how to arrest a female has been disclosed and for correct appreciation of this case, proviso to section 46 Cr.P.C is quoted hereinbelow:
"Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest."
The notice in terms of proviso to section 47 Cr.P.C. is required to be provided if the search is being made on the house where the female is residing. This proviso to section 47 Cr.P.C is quoted hereinbelow:
"Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw, and shall afford her every reasonable facility of withdrawing, and may then break open the apartment and enter it."
In view of section 46 Cr.P.C. a female police officer was required to be present. Sub section 4 of section 100 Cr.P.C. provides of calling of independent and respectable inhabitants of the locality. These are the provisions which have not been followed in conducting the raid in the house of the complainant. It was incumbent upon the police officers to follow those procedures and time and again it has been reiterated by the Courts that liberty of any person cannot be snatched in a hasty manner which has been done in the case in hand. However, the entire facts of this case suggest that the case is filed malafide against 7 the petitioners and direction nos. 1 to 7 in the case of "State of Haryana v. Bhajan Lal" covers the case of the petitioners. Section 197 Cr.P.C also protects the persons if the act has been done in discharge of official duty as has been held by the Hon'ble Supreme Court in the case of "D.T. Virupakshappa v. C. Subash" (supra).
In view of the above facts and the reasons and analysis, the criminal case filed against the petitioners are fit to be interfered with.
Accordingly, the entire criminal proceeding in connection with C-1 Case No.4117/2014, pending in the court of J.M. 1st Class, East Singhbhum, Jamshedpur including the order dated 31.01.2017 passed in Criminal Revision No.216/2015 by the learned Additional Sessions Judge, 1st East Singhbhum, Jamshedpur are hereby quashed.
Since the liberty of the complainant has been snatched by the police officers without following the procedure of law, as discussed above, particularly, proviso to section 46 Cr.P.C and proviso to section 47 47 Cr.P.C and in view of sub section 4 of section 100 Cr.P.C, the complainant is required to be suitably compensated by the petitioners.
Accordingly, the petitioners shall pay a sum of Rs.50,000/- to the complainant namely, Radha Rani Paswan. It is made clear that entire criminal proceeding shall be quashed subject to payment of Rs.50,000/- as directed by this Court within a period of four weeks, as submitted by Mr. Nagmani Tiwary, the learned counsel for the petitioners. The receipt to that effect shall be filed in the court below and on receiving of the said receipt and after being satisfied the trial court shall close the proceeding against the petitioners.
The fine so deposited by the petitioners shall not affect adversely in the service career of the petitioners.
Cr.M.P. No. 1475 of 2017 stands disposed of.
I.A. if any also stands disposed of.
( Sanjay Kumar Dwivedi, J.) SI/,