Patna High Court - Orders
Brajraj Shrivastava vs State Of Bihar &Amp; Anr on 7 September, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.1001 of 2009
BRAJRAJ SHRIVASTAVA
Versus
STATE OF BIHAR & ANR
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For the Petitioner : Shri Bimlesh Kumar Pandey, Advocate
For the State State: Shri Jharkhandi Upadhyaya, APP
For the O.P. No. 2: Sarvashri Krishna Pd. Singh, Sr. Advocate
Girijesh Kumar, Advocate.
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4/ .9.2010 This petition has been preferred by petitioner Brajraj
Shrivastava, the complainant of Complaint Case no. 2260 C of 2008
to question the propriety of order dated 18.9.2008 passed by the
Chief Judicial Magistrate, Bettiah (C.J.M. for short) in the above
noted complaint case and further for seeking an order of quashing as
respects order dated 14.11.2008 passed by the Sessions Judge,
Bettiah in Cr. Revision no. 213 of 2008. By order dated 18.9.2008,
the C.J.M. dismissed the petition of complaint under section 203 of
the Code of Criminal Procedure (hereinafter referred to as the Code)
because he was of the opinion that the acts complained of against
the accused named in the complaint petition, i.e., O.P. No. 2 Dilip
Kumar, who was then District Magistrate-cum-Collector, West
Champaran at Bettiah, were parts of his official duties and as such,
were done in discharge thereof and without there being sanction
under section 197 of the Code, the petition of complaint had to be
dismissed. As regards order dated 14.11.2008 passed by the
Sessions Judge, West Champaran in Cr. Revision no. 213 of 2008,
the same view was taken by the Sessions Judge also and he held
that the acts complained of were acts which could not be separated
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from the official acts of the accused who was a public servant and,
as such, without valid sanction under section 197 of the Code, the
complaint petition could not be proceeded with and as such, justified
the order passed by the C.J.M.
For disposing of the prayer made through the present
petition it is desirable that the facts stated in the petition of
complaint be noticed.
The complainant, an Advocate, practicing in the Civil
Courts, Bettiah, was also the office bearer of some organizations,
like, RSS and Yog Bharti, and while he was at the residence of the
Minister of the Government of Bihar for Youth Affairs and Sports,
he was informed by the B.D.O., Chanpatia that he was an invitee in
the meeting of the Peace Committee which was likely to be held on
12.8.2008in the Collectorate, Bettiah. Accordingly, the complainant along with one Vijay Kashyap went to participate in the meeting which continued up to 4 P.M. and there were wide ranging deliberations in it. At the end of the meeting, the accused Collector asked the complainant and others to sign a dispute-resolution- proposal upon which the complainant stated to the Collector that it was alright that the dispute had been resolved, but some action ought to have been initiated against persons who had desecrated the idol of Mahavir Jee. Hearing that statement, the accused Collector lost his temper and stated that he earlier had some half baked informations about the complainant and others, but now he had full informations about them and asked the complainant and others to sit 3 aside from others who were participating in the meeting so that he could talk to them. After dispersal of the meeting, the Collector along with a few others in plain dress came to the complainant and others and asked them to point out the grievance of the complainant and stated to the complainant that the complainant and others were communal persons, were murderers of Gandhi. The complainant, with humility, stated to him that he was an ordinary volunteer of an organization which was engaged in good works to be carried out by the organization for the welfare of the society and he was proud of being a Swayam Sevak and further that the Collector should not use harsh words towards his organization. Upon this, the Collector caught the complainant by scarf of the collar of his shirt and gave a blow, which hit him on his neck. The collar of the shirt of the complainant was torn. Vijay Kashyap, who was accompanying the complainant, intervened by saying to the accused that he should be patient and apply restraint. The accused Collector ordered his accompanying plain-clothes-men to assault upon which the complainant and Vijay Kashyap were assaulted by fists and slaps and after holding them by collars, dragged them out of the room and, put them in handcuffs.
It was alleged further that the complainant and Vijay Kashyap was brought to Bettiah town police station where both of them were put into the lockup. The accused again came to the police station at 9.30 P.M. and got the complainant and Vijay Kashyap out of the lockup and got them beaten up badly by the butts of rifles 4 through the constables present there and, stated further that the two should be killed by showing encounter with the police. The Collector was further stating that he had subjugated many persons in Punjab and that he will spoil the lives of the two. The Collector abused the complainant and challenged him to save the deities in the valley (probably Kashmir ?) where the deities were being desecrated and further that he would shoot dead every one who was establishing deities of gods after encroaching upon lands. The complainant stated that his religious sentiments were hurt by the above words of the Collector and he felt deeply insulted on account of his religion being spoken of in such low terms. It was alleged that the accused Collector ordered the police officers to take them to the C.J.M. and when the police officer pointed out that it was night and the C.J.M. might be in his bed and may not remand them to custody, he asked them to take the two to the C.J.M. and accordingly, the C.J.M. remanded the two at 12.00 in the night. The complainant and his companion were never provided meals or a drop of water. The doctor in the jail had treated the complainant and Vijay Kashyap and had given medicines. The complainant alleged that his social prestige had received a serious beating and great injury was caused to his reputation on account of abusive language hurled upon him by the accused Collector and that if the complainant had not applied restraint upon him, it was a possibility that he would have been killed by the Collector.
It appears from the order passed on 18.9.2008 by the 5 C.J.M. in the above noted complaint case that after recording the statements of the complainant he passed the order dismissing the petition of complaint. Before that, he had perused the complaint petition on 22.8.2008 and had decided to hold an enquiry himself under section 202 of the Code. But all of a sudden, he appears changing his mind on 18.9.2008 and proceeded to dismiss the complaint in spite of the earlier order passed on 22.8.2008 by which he had decided to hold an enquiry under section 202 of the Code in the allegation made in the petition of complaint.
The Sessions Judge, who dismissed Cr. Revision no. 213 of 2008, does not appear even looking to that part of the proceeding by which the C.J.M. had decided to hold an enquiry as appears from his order dated 22.8.2008. Not only that, the worst was when the C.J.M. was overlooking his own order and was acting against his own direction which was passed by him on 22.8.2008. It is simply surprising as to how he could ignore his own order by which he had decided to hold enquiry under section 202 of the Code. In the above background, I have first decided to take up that particular issue though, the same was not raised before me by either of the sides, while I was hearing the present petition.
Section 202 of the Code reads as under:
"202. Postponement of issue of process. ---- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct 6 an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made----
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
A reading of the above provision indicates that the Magistrate who has to take cognizance on receipt of a petition of complaint or if it has been made over to him under section 192 of the Code, if he thinks fit, may, postpone the issuance of processes straightway and may decide to hold an enquiry himself or direct the investigation to be made by a police officer or by such other person as he may think fit for the purpose of deciding whether or not there 7 is sufficient ground for proceeding. Thus, once the Magistrate had decided to hold an enquiry under section 202 of the Code, there is no further course open to him to act differently after taking such a decision. This is plainly clear from the above provision of section 202 of the Code. This is for the above reason that this court in the case of Smt. Pawan Kumari and ors. Vs. State of Bihar reported in 1996(1) Crimes 26 (HC), held that once the Magistrate had embarked upon an enquiry under section 202 of the Code, it was incumbent upon him to conclude that enquiry himself. I am only considering the principle which flows from the provision of section 202 of the Code; I am not concerned about the facts which led this Court in Smt. Pawan Kumari (supra) to pass the judgment. Even if I had not made a reference to Smt. Pawan Kumari (supra), the provision is so clearly worded that it could not have led any one to any other conclusion than what was drawn by this Court earlier in the above noted decision or what I have drawn presently.
The reason for the above decision, inter alia, may be available to any reasonable person if one considers the provision of section 200 of the Code which reads that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present. The language of the provision contained in section 200 of the Code is not such that the Magistrate may not defer his decision as to what should he do after receipt of the complaint petition and further that he cannot pass an order as was passed by the C.J.M. Bettiah on 22.8.2008 besides 8 refusing to take cognizance and thereby to dismiss the complaint itself as not disclosing commission of any offence unless he had examined the complainant on solemn affirmation. But, once he had taken cognizance of the complaint petition and the offence which may be constituted on consideration of the facts and had decided to proceed under section 202 of the Code himself, then he cannot turn around to dismiss the petition of complaint without completing the enquiry. 'Taking cognizance' has not been defined by the Code but it has been defined by a series of decisions of this court as also of the Apex Court to mean the perusal of facts alleged in the petition of complaint, application of the court's mind to them and then to decide as to whether it indicated that any offence was committed by the accused which required proceeding further by examining the complainant and holding an enquiry. If the magistrate has taken cognizance, it means that he has read the averments made in the complaint petition and if he has decided to examine the complainant on solemn affirmation and has further decided to hold enquiry under section 202 of the Code, then he has crossed all thresholds which are created by sections 200 and 202 of the Code and, as such, it could be simply illegal to dismiss the complaint without holding or concluding the enquiry.
In the above view of the matter, the order passed by the C.J.M. on 18.9.2008 appears completely erroneous and against the provisions of law just discussed by me. Unfortunately, the Sessions Judge was not as intelligent enough as even to looking to the 9 provisions, which I have just discussed while deciding Cr. Revision no. 213 of 2008 and was probably fascinated by the order of the C.J.M., which was patently illegal, to confirm it without applying his mind to the whole issue as noted above. His order, as such, could not be sustained on the above reasons.
What I have just noted, may not be enough to dispose of the present petition unless this Court considers the reasons assigned both by the C.J.M. and the Sessions Judge in dismissing the complaint petition and affirming the order dismissing the complaint petition under section 203 of the Code respectively. Both the Courts below held that the acts complained of were done allegedly in the official discharge of the duty by the accused Collector and, as such, he could not be prosecuted without a valid sanction under section 197 of the Code. Unfortunately, the courts below appear deeply swayed by the official position of the accused and were little concerned about the seriousness of the acts complained of. The provision of section 197 of the Code is, of course, meant to shield the official acts of a public servant but, that protection is available to a public servant only when it is shown that the 'offence alleged to have been committed by him' was committed 'while acting or purporting to act in discharge of his official duty.' Discharge of official duty and the acts alleged must be so interlinked as not to be separated from each other. If the acts and discharge of official duties are separable from each other, then no public servant could be extended the protection of section 197 of the Code and no 10 prosecution against him could be scuttled out by virtue of that particular provision. Interlinking the act complained of and the official duty or purported act in discharge of his official duty are the crux of applying the provision of section 197 of the Code. As such, the courts, who consider the provision of section 197 of the Code have always to be very cautious in appreciating the facts which are alleged in the petition of complaint or a report about the commission of an offence and then has to judge as to whether the acts complained of were done in purported discharge of official duties.
A District Magistrate or a Collector of the district is a public servant who represents the State at the district level and he holds a very vital position in the scheme of administration of a state. He is a link between the people and the government. He has to be very courteous. He has to be easily approachable. He has to be tolerant and he has to be well tempered. May be, situation may crop up before him which could be extremely annoying and sufficient enough to get lost in ones bad temper, but he has to keep himself composed while dealing with such situations. At any rate, for deciding the application of section 197 of the Code, the courts cannot go beyond the allegations which are presented before it by the complainant or the informant of a case. No extraneous material or evidence could be relevant for attracting the provisions of section 197 of the Code. Whatever position a public servant might be holding, unless the position carries a constitutional immunity from being prosecuted, it never could be a fact to be considered. The 11 Courts are required to read the allegations and then judge as to whether the allegations could be the part of official act of a public servant and could they be said to be done in discharge of their official duties. Once the courts find that the acts complained of and the requirements of the official duties of a public servant were so intertwined to each other that the two cannot be separated, then it could be a good case for extending the protection of section 197 of the Code to such public servant. As soon as the acts and the official duties are demarcated as separate, not interlinked to each other, there may not be any application of section 197 of the Code for annulling a prosecution or refusing to take cognizance of an offence or to summon an accused. However, the provision under section 197 of the Code, it has always to be kept in ones mind, comes into play only when the question of taking cognizance has to be decided by a court of competent jurisdiction.
I have pointed out a bit earlier in the present order that as soon the C.J.M. had perused the complaint petition and had decided to proceed to hold the enquiry under section 202 of the Code himself, as appears from his order dated 22.8.2008, he had taken cognizance of the offence. As such, his subsequent order dated 18.9.2008 dismissing the petition of complaint under section 203 of the Code was completely out of the bounds of the provision of the Code. He could have acted as per the provision of section 197 of the Code to refuse taking cognizance of the offence on 22.8.2008 and never thereafter.
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In spite of the above frailty and illegal action of the C.J.M. and the Sessions Judge, this court has proceeded to examine whether the acts complained of were so interlinked or intertwined with the official acts of the accused Collector that he was entitled to a protection of the provision under section 197 of the Code.
I have just noted down that for deciding the applicability of the said provision the facts alleged in the complaint petition have to be considered.
I have noticed the facts of the complaint petition. The complainant was invited to participate along with Vijay Kashyap in a meeting of Peace Committee and he was venting some grievances about not initiation of a proceeding against the persons who had desecrated the idols of Hanuman Jee. The accused asked the two to sit apart at a different place from other participants of the meeting. The Collector thereafter is alleged to have come with a couple of persons in plain clothes and to have abused and assaulted the complainant and his companion. Besides, the two were put under handcuffs and were sent to the Hazat of the police station where the two were again got beaten up by the accused through the constables and the complainant and his companion Vijay Kashyap were got remanded to judicial custody by a judicial order passed by the C.J.M., Bettiah in the night of 12.8.2008 at 9 P.M., which appears to me from the copy of the order produced during the hearing of the present petition.
The above allegations do constitute some offences, which 13 appear committed by the accused Collector. This could not be the official act of the District Magistrate cum Collector to abuse and assault a person or to put him under lockup. The petitioner complainant was put under handcuff and remanded to custody also appears admitted by one of the documents annexed to the counter affidavit, which is a reply to the local Bar Association, which was taking up the issue of arresting the complainant Brajraj Shrivastava, one of its members. The facts of the case were such as could not be said to be inseparably connected to the official acts of the District Magistrate- cum-Collector. Those were the acts which could never be said to be part of official duties of a public servant. They were simply creating offences which were committed outside the discharge of official duties of the public servant and, as such, there was no requirement of the previous sanction for taking cognizance or proceeding with the complaint petition. The whole approach of the C.J.M., Bettiah and the Sessions Judge, Bettiah appears completely erroneous and perverse.
In the result, the two orders are hereby quashed. The petition is allowed. The C.J.M. Bettiah is directed to restore Complaint Case No. 2260 C of 2008 (Brajraj Shrivastava Vs. Dilip Kumar) to its original number and file so that the enquiry which was decided by him to be gone into under section 202 of the Code could be completed. In the fitness of things, it is required in the interest of justice that the C.J.M., Bettiah be precluded from carrying out the enquiry under section 202 of the Code. This complaint petition, in 14 the above contingency, shall stand transferred to S.D.J.M., Bettiah for holding an enquiry under section 202 of the Code.
While hearing the present petition, it came into light that the petitioner complainant was remanded at 9 P.M. by the C.J.M. in Bettiah Sadar P.S. Case no. 260 of 2008 on 12.8.2008. It is an unprecedented order of remand which further lends credence to the allegations and requires this Court to place the present order before Hon'ble Inspecting Judge of West Champaran at Bettiah so that his Lordships may look into as to under what circumstances the C.J.M., Bettiah was passing an unprecedented remand order at 9 P.M. when the jail gates are closed and in no case an accused is taken into after passing of the remand order after sunset. The above act of the C.J.M. appears done under the influence of some authority or the other for which suitable action must be initiated against him.
Anil/ ( Dharnidhar Jha, J.)