Criminal Miscellanious No.21184 OF 2005 In the matter of an application under [SECTION] of the [ACT]. [ENTITY], son of Sri Chandra Shekhar Thakur, Resident of Mohalla Vidyapuri, PS and District Supaul, presently posted as Officer Incharge of Shahpur police station, District Bhojpur - Petitioner. Vs. (1) The [ENTITY], (2) [ENTITY], son of Late Hargovind Singh, village Kapoor Dehari, PS Tarari, District Bhojpur - Opp. Parties. For the petitioner: Mr. [ENTITY], Senior Advocate, Mr. [ENTITY] and Mr. [ENTITY], Mr. [ENTITY] and Mrs. [ENTITY], Advocates. For the State: Mr. [ENTITY], A.P.P. For opposite party No.2: Mr. [ENTITY], Advocate. PRESENT
THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN [ENTITY],J. This application has been filed for quashing the entire proceeding on the basis of the order, dated 11.4.2004 passed in [CASE NUMBER] by the Chief Judicial Magistrate, Bhojpur by which process was issued against the petitioner and one [ENTITY] for the offences under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT].
2. On 4.7.2004 a case was instituted by the petitioner who happened to be the Officer Incharge of Tarari police station. In the said case it is said that the petitioner along with several other Havildars was moving in the village to round up gang of criminals belonging to the group of [ENTITY]. The police party could not find the criminals and were returning back when they saw two persons sitting on the side of the road. The petitioner challenged them whereupon it is said that the two persons took out their revolvers and began to fire on the police party. The petitioner was hardly able to save his life. In retaliation the petitioner is said to have fired which is said to have hit [ENTITY] in the back. The other co-accused [ENTITY] was caught on the spot and was arrested along with a country made pistol. In the F.I.R. itself, it has been disclosed that [ENTITY] is accused in as many as sixteen cases.
3. Subsequently a complaint was filed on behalf of [ENTITY] for the offences under [SECTION], [SECTION] and [SECTION] of the [ACT] in which he has alleged that the petitioner along with others came to his door. [ENTITY] was sitting at the door. As soon as [ENTITY] is said to have reached the house of the complainant, [ENTITY] is said to have ordered that [ENTITY] and [ENTITY] should be killed. It is alleged that the petitioner shot at [ENTITY]. It is further alleged that [ENTITY] was forcibly taken to the police station. The complainant got the news of death of [ENTITY] from newspaper and thereafter filed the complaint petition.
4. Counsel for the petitioner submits that the petitioner had gone to perform his duty and was searching a criminal. In the mean time he met [ENTITY] and [ENTITY] who indulged in firing and as a measure of self defence for himself and police officers, he fired which hit [ENTITY]. It is said that that the act of firing was in pursuance of his duty and it cannot be said that the petitioner was acting according to his whims and fancy.
5. Counsel for the complainant submits that the case is absolutely untrue and whether the petitioner was performing his official duty or not can only be gathered from the facts and circumstances of the case. It is further alleged that the petitioner was in the company of [ENTITY] who is said to have been suspended by the department and the petitioner ought not to have been moving around with a suspended Chowkidar.
6. Counsel for the petitioner relies on a decision of the Supreme court in the case of Rakesh Kumar Mishra vs. [ENTITY] 2006 (1) SCC 557. In the said case the Patna High court refused to interfere in an application filed under [SECTION] of the [ACT] for quashing the criminal case on the ground that the provisions of [SECTION] [ACT] has not been followed. The Supreme court noted that when an officer while on duty commits certain acts, then the court has to judge whether such acts were in the nature of official duty or were performed in pursuance of an official duty. Once the court comes to a finding that it was in pursuance of an official duty, then the court must put an liberal and wide construction so far as official nature is concerned. Where, however, the act is done in a manner which cannot be considered to be in pursuance of discharge of official duty, then a narrow meaning should be given to the provisions of [SECTION] [ACT]
7. Counsel for the complainant-opposite party no.2 relies on certain decisions and submits that the killing of a person cannot amount to an act done in discharge of an official duty. On reading the F.I.R. it is apparent that the petitioner was on duty while he was moving in the village in pursuance of certain information he had got with respect to gathering of criminals in a wine shop. In the process of search, the petitioner and others came across certain persons who fired on the petitioner which resulted in a counter firing. The act aforesaid of counter firing was not done with intention to kill anyone, nor had the petitioner and others gathered for the purpose of committing a crime. The question, therefore, is whether the petitioner was doing an act which was beyond the scope of his official duty? This aspect of the matter should be tested firstly by the department concerned in order to determine whether the petitioner was within for four-corners of performing his duty.
8. Learned counsel for the opposite party refers to the decision in the case of State of H.P. vs. M.P. Gupta, (2004) 2 SCC
349. In this case the court rejected the plea of the accused that he was acting in pursuance of his official duty in the facts stated in the judgment. In this case an enquiry was set up and during the enquiry it was held that the petitioner had cancelled the supply order of 1200 MT of barbed wire with H.P. Agro Industries Corporation; supply of only 17.64 MT was actually affected to the Corporation before the cancellation was intimated to the supplier. The facts of the aforesaid case are not very relevant for the present case. Similarly the decision referred to in the case of [PRECEDENT] is also not very relevant as it relates to defamatory statements made by the accused persons and it has been held that such defamatory statements cannot be a subject matter of an official duty. It would have to be judged during the trial where such statement would come within the 9th exception of [SECTION] of the [ACT] or not. As such the Supreme court rejected the plea of the accused persons that cognizance should not have been taken in absence of sanction under [SECTION] of the [ACT]
9. Lastly counsel for the opposite party relies on a decision in the case of [PRECEDENT]. The case relates to an incident where it is alleged that the police officials went to Haveli of [ENTITY] where he was living along with his family members. [ENTITY] and [ENTITY] were tired with a rope and were put in a tractor with an intention to throwing them in a river. [ENTITY] and [ENTITY] were admitted in the Civil Hospital, Kapurthala, where they died as a result of injuries inflicted upon them. The circumstances surrounding the incident, the manner in which the incident took place and the judicial enquiry, held after the incident took place led the Supreme court to hold that the petitioners had acted beyond the discharge of their official duty and as such they cannot be given the protection afforded by [SECTION] [ACT]
10. The present case arises out of a complaint where apart from the statements of the complainant there is no independent enquiry to support the occurrence. It would, therefore, be essential in such a case that the matter should be reported to the concerned authority who would be in a better position to judge in the facts of the case whether the petitioner was acting in course of his official duty or not by making an enquiry with respect to the circumstances of the occurrence. The I.G. of Police of the concerned zone (i.e. Zonal I.G. of Police) should make an enquiry and take a decision regarding the fact whether the petitioner acted in discharge of his official duty when he fired on [ENTITY] and [ENTITY]. The I.G. should get the case diary of [CASE NUMBER] and the facts relating to the complaint [CASE NUMBER] pending in the court of the Chief Judicial Magistrate, Arrah. The said decision should be taken within a period of four months from the date of receipt of a copy of this order by passing appropriate orders. In the mean time the order, dated 11.4.2004 passed in [CASE NUMBER] pending before the Chief Judicial Magistrate, Bhojpur shall remain stayed. A copy of the order may be sent to the Superintendent of Police, Arrah who will communicate the order to the I.G. of Police of the concerned zone.
11. This application is disposed of with the aforesaid observations.
Patna High Court, ( [ENTITY], J.) March 17, 2011, N.A.F.R. / haque.