Patna High Court
Naresh Mohan Prasad And Ors. vs State Of Bihar And Anr. on 28 September, 1999
Equivalent citations: 2000CRILJ424
Author: Sudhir Kumar Katriar
Bench: Sudhir Kumar Katriar
JUDGMENT Sudhir Kumar Katriar, J.
1. This application at the instance of the five petitioners under Section 482 of the Code of Criminal Procedure, 1973, is directed against the order dated 9-5-94, passed by Shri A. K. Singh, Judicial Magistrate, Lakhisarai, in Complaint Case No. 183(C) 93, whereby cognizance of the alleged offences have been taken under Sections 147, 323, 380, 452 and 504, IPC as well as Section 26 of the Arms Act, and the petitioners have been summoned to stand their trial.
2. According to the allegations in the petition of complaint lodged by O. P. No. 2 herein, on 11-8-93 the petitioners had stormed into the house of the complainant, misbehaved with the ladies, taken away valuable articles of the household. A copy of the complaint petition is marked Annexure 1 to the quashing petition. On these allegations, the impugned order of cognizance was passed in the aforesaid manner. Let it be recorded that the petitioners herein are members of the Railway Protection Force (RPF) and were, at the relevant point of time, were posted at Kiul.
3. While assailing the validity of the impugned order, learned counsel for the petitioners submitted that the present complaint case is really a counter blast to the case started against O.P.No. 2 herein (Arjun Sao), as well as his son Devendra Sao. On 4-8-93, one Pyarelal, a member of the RPF posted at Kiul had submitted a report to the Incharge Inspector, RPF, Jhajha, alleging therein that he had spotted the aforesaid Devendra Sao while stealing railway properties in Kiul Railway Yard. He had, therefore, submitted his report dated 4-8-93 (Annex-ure 3). On 4-8-93, the learned Railway Judicial Magistrate, Kiul, had issued non-bailable warrant of arrest against Devendra Sao. A copy of the entire order sheet including that of 4-8-93 is marked Annexure 4 to the quashing petition. Devendra Sao was accordingly arrested on 8-8-93. The statement of the accused Devendra Sao was recorded by one Ram Briksh Singh (petitioner No. 3 herein), with respect to the case started on the basis of the aforesaid report dated 4-8-93 (Annexure 3), wherein he confessed that his father, Arjun Sao, was for the namesake Halwai, but really is engaged in theft of railway properties. He has similarly trained him, Devendra Sao, also. A copy of the said statement of Devendra Sao recorded on 8-8-93 is marked Annexure 5 to the quashing petition.
3.1 Learned counsel for the petitioners next contended that the present prosecution cannot be allowed to continue in view of the non-compliance of the mandatory provisions of Section 20(3) of the Railway Protection Force Act, 1957.
4. None appears on behalf of O.P.No. 2, the complainant. Mr. Damodar Prasad Tiwary, learned APP, has opposed the quashing petition on various grounds. He first of all submits that the accused petitioners are not entitled to introduce their defence at the present stage. He further submits that a prima facie case is made out on the basis of a plain reading of the petition of complaint. He also submits that this is not a stage to apply the provisions of Section 20(3) of the Act.
5. Having considered the rival submissions, I am of the view that this application should succeed. Learned counsel for the petitioners is right in his submission that the present complaint case (Annexure 1) giving rise to the impugned order of cognizance and the quashing petition appear to be a counter blast to the aforesaid case started against Devendra Sao and Arjun Sao and is meant to discredit the action taken by the petitioners against them. The occurrence had taken place on 4-8-93, and Devendra Sao was arrested on 8-8-93. On the heels of the same has been filed the present complaint petition on 11-8-93. In the facts and circumstances of the present case, I am not inclined to agree with the submissions of the learned APP that the contention of the petitioners amounts to introduction of their defence in the present case. That may normally have been, but not in the facts and circumstances of the present case, inasmuch as the documents relating to the prosecution against Devendra Sao and Arjun Sao is the subject matter of judicial proceeding.
6. Learned counsel for the petitioners has rightly relied on the judgment dated 27-7-99, passed by me in Cr. Misc. No. 6017 of 1993 (G. C. Bahugunav. State), reported in 1999 BCCR 887, wherein I had quashed the prosecution on similar grounds. Paragraph 3.2 of the judgment is relevant in this context and is quoted hereinbelow for the facility of quick reference:
Having considered the rival submissions, this Court is of the view that the present complaint case is undoubtedly a counter blast to the aforesaid Digha PS Case No. 45/ 93, in an effort to destroy the police case and also to satisfy their vengeance. I have been informed by counsel for the parties during the course of arguments that the eight accused persons including the complainant were dismissed from service on 26-2-93, which undoubtedly added to the growing anger and vengeance on the part of the workmen. The alleged occurrence is said to have taken place on 24-2-93, and the present complaint petition was filed on 4-3-93. The effort on the part of the complaint before this Court to explain the delay on account of the arrest of the complainant is unconvincing for the reason that the complainant and his fellow workmen were engaged in a joint venture of trade union activity against the management. Therefore, there can be no doubt that other office bearers and fellow workmen who had taken active part were available to start the criminal case, had the workmen really been victims. The complainant and others were released on bail on 26-2-93, and the hiatus between 27-2-93 and 4-3-93 lends sustenance to the submission of the petitioners. The delay is really gaping and unexplained.
7. Learned counsel for the petitioners is equally right in his submission that the present prosecution cannot continue in view of non-observance of mandatory provisions of Section 20(3) of the Act which is as follows:
20. Protection of acts of members of the Force.--
(1) and (2)....
(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 superior officer or member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision 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.
7.1 The same was noticed by a learned single Judge in the judgment reported in 1970 Cri LJ 642 (Patna) (D.S. Bhoria v. N. Singh), paragraph 7 of which is relevant in the present context and is set out hereinbefore for the facility of quick reference:
As already stated the second petitioner had been commanded to assist the Assistant traffic Superintendent in the work of checking ticketless travelling. By reason of Section 15, he must be deemed to have always been on duty. In view of Sub-section (3) of Section 20, the prosecution against the second petitioner could only have been commenced after a prior notice of one month in writing of such proceeding and of the cause thereof to the petitioner himself as well as to his superior officer. This requirement of Section 20(3) of the Act had not been complied with and it must, therefore, follow that his prosecution as instituted is not valid."
8. In the result, this quashing petition is allowed, the impugned order dated 9-5-94, in Complaint Case No. 183(C)93, is hereby quashed.