IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16303 of 2006 Rajendra Singh, Son of Late Dhanusdhari Singh, resident of Road No.6, Rajeev Nagar, P.S. Digha District-Patna ------------------- Petitioner Versus 1. The State Of Bihar 2. Md. Salam Iraqui, son of Md. Sattar, resident of Muhalla Raipura, Idgahpar, P.S. Fatwa, District-Patna _____________ Opp.Parties. ----------- WITH Cr.Misc. No.17053 of 2006 Rajendra Singh Son of Late Dhanusdhari Singh, resident of Road No.6, Rajeev Nagar, P.S. Digha District-Patna -------------------- Petitioner Versus 1. The State Of Bihar 2. Md. Shamsher, son of Md. Md. Sattar, resident of Muhalla Raipura, Idgahpar, P.S. Fatwa, District-Patna ----------------- Opp.Parties. ----------- For the Petitioner in Both cases: M/S Ganesh Prasad Singh, Sr.Advocate & Manish Kumar, Advocate For the State in Both cases : Mr.Jharkhandi Upadhaya,A.P.P For Opp.Party no.2 in Both cases :Mr.Dhruba Mukherjee, Advocate. ________ O R D E R Both these cases have been taken up together since the petitioner in both the cases is same and facing alleged hostility from two bothers who are Opp.Party no.2 in both cases and in view of the nature of the cases being the more or less similar, they have been heard together and is being disposed of by this common order. One Md. Salam Iraqui is the complainant of Complaint - 2 - Case No.2401(C) of 2004 and is impleaded as Opp.Party No.2 in Cr.Misc.No.16303 of 2006 and through this application the petitioner herein who has been arrayed as the sole accused for commission of offences under Sections 323,307,380, 386, 420, 452, 501, 503, 504 and 506 I.P.C.in the said complaint case has prayed for the quashing of the entire criminal proceeding arising from the said complaint case including the order dated 2.3.2006, whereby cognizance has been taken against him under Section 323, 380 and 504 I.P.C. by Sri Prem Chandra Anal , Judicial Magistrate, 1st Class, Patna. One Md. Shamsher is the complainant of Complaint Case No.3087( C) of 2004 and is impleaded as Opp.Party no.2 in Cr.Misc.No.17053 of 2006 and through this application the petitioner herein who has been arrayed as one of the two accused for commission of alleged offences under Sections 323, 380,386, 452,501,503, 504 and 506 I.P.C. has prayed for the quashing of the entire criminal proceeding arising from the said complaint case including the order dated 14.7.2005 passed therein by Sri Shobha Kant Mishra, Judicial Magistrate, 1st Class, Patna whereby he has taken cognizance of offences under Sections 323, 504 and 506/34 I.P.C. against the petitioner and another. The complainant of Complaint Case No.2401(C) of 2004 claiming to be owning three shops in Maurya Lok Complex along with his brother and carrying on business of shoes, slippers , bags and Mobile phones and also being the Chairman of Maurya Lok Minority Shopkeepers Association alleged inter alia that the petitioner herein - 3 - along with other police personnel arrived at his shop on 25.9.2004 and threatening him slapped his staff incessantly , to which the complainant objected , whereupon the petitioner is alleged to have abused him and threatened to send him to jail. He has further alleged that as he was not vacating the shop premises and had gone to the court by way of Title Suit No.5 of 2003 where status quo was directed to be maintained, he refused to accompany the petitioner to the Police Station as the matter was pending in the court and showed him the order of status quo, but the same had no effect on the petitioner who instead directed him to vacate the shop, pushed him towards the counter, assaulted him and also threatened him. It is further alleged that the petitioner took 30 (thirty) mobile total worth Rs.85, 000/-, cash worth Rs.21, 000/- and re-charge coupons worth Rs. 17,000/- which he kept in his vehicle. It is also alleged that thereafter the petitioner went to the other shop directing the complainant to follow him and threatening of putting him inside the jail took out the rifle, cartridges and their original papers, although the said rifle was not wanted in any case, and thereafter brought the complainant to the Police Station and put him behind the bars on the ground that he was an accused in Kotwali P.S. Case no.80 of 2004. It is also alleged that the petitioner neither prepared a seizure list nor did he give any receipt for the aforesaid goods that he had taken and he was forwarded to the court of the learned Chief Judicial Magistrate. The complainant further alleged that the petitioner called a Press Conference alleging the complainant - 4 - to be a big criminal as a result whereof the complainant had suffered mentally as also economically. It is said that in spite of demand for return of the goods by brother of the complainant and staff, the same were not returned and instead they were threatened which was followed by the petitioner visiting the shop everyday to threaten his brother and staff. It is said that on his release on 29.2.2004 he gave written information to the Senior Police Officers on 30.9.2004 but that notwithstanding the petitioner again came to his shop on 1.10.2004 and abused his brother and staff directing him to vacate the shop, failing which all of them would be sent to jail. He also refused to return the goods allegedly taken away. A complaint to this effect was lodged on the same day with the Police Control Room and on 2.10.2004, the petitioner again came and directed him to close the shop which he obeyed at that moment and soon thereafter started doing business again after giving information to the Sr. Supdt. of Police and other persons and for this the petitioner again threatened him. The complainant of Complaint Case No.3087(C) of 2004, who is the own brother of the complainant of the other case, alleged that on 13.12.2004 the Officer Incharge of Kotwali Police Station, i.e. the petitioner herein, along with his bodyguard came to his shop and arrested him in a false case being Kotwali P.S. Case No.527 of 2004 wherein one Raj Kumar happened to be the informant. It is alleged that there is no such person by that name at the residential address given in the First Information Report. He further alleged that the - 5 - petitioner had also instituted a false case against his brother and thereafter he came on 30.12.2004 at around 11.00 A.M. , inquired about his brother ,Salam Iraqui, and threatened him to close the shop after abusing him and his brother and warned the staff not to come to the shop. He also alleged that the petitioner then entered in their shops and took away 19 Mobile hand sets , 13 re-charge coupons and Rs.14,000/- in cash from the pocket of the complainant , for which no receipt was granted. It was also alleged that he was taken to the Police Station and kept in the Hazat wherefrom co-accused Sudhir Kunwar took him out, asked him about his brother and threatened that his brother would be killed in a showy encounter. He was also asked to pay for reserving the Auto-Rikshaw to take him to the court and when the complainant refused he forcibly took out Rs.380/- from his pocket and handcuffed him. It is said that although the learned Chief Judicial Magistrate directed for his release on 15.12.2004 he was released only on 16.12.2004 and after he had submitted a written complaint to the Senior Police Officers on 17.12.2004, the petitioner again came to his shop on 18.12.2004 and asked him as to how he came out of custody so early and also inquired about his brother. He further alleged that on the date of occurrence they had taken away 13 Mobile hand-sets and Rs.21, 000/- from the cash counter and re-charge coupons worth Rs.17, 000/- apart from a licensed rifle with 25 live cartridges along with the licence , for which complaint Case no.2401 of 2004 had been filed by his brother. The further allegation is that the petitioner was continuously threatening him to close the shop for the last two to three - 6 - months and a criminal writ being Cr.W.J.C.No.776 of 2004 had also been filed. It was also alleged that the petitioner sealed his shop notwithstanding an order of status quo from a competent court. A request for return of goods was not heeded and instead he was threatened of being sent behind the bars. The common submission on behalf of the petitioner in respect of both cases is that Salam Iraqui had been allotted the disputed shop on 4.3.2003 and on 1.12.2003 one Md. Shahwaz Khan filed Complaint Case no.2638(C) of 2003 against Salam Iraqui for misbehaviour and assault which was sent to Kotwali Police Station under Section 156(3) Cr.P.C. and on the basis thereof Kotwali P.S. Case No.80 of 2004 dated 15.2.2004 was registered under Section 379 and other allied Sections of the Penal Code. Then again on 13.4.2004 the Maurya Lok Dukandar Sangh gave a written complaint to the Patna Regional Development Authority ( in short “PRDA”) against him for sub-leasing one of the shops by Bihar Emporium and on the basis thereof the Estate Officer, PRDA vide his letter No.973 directed the Managing Director of Bihar State Small Scale Industries Ltd. to file a show cause , failing which the allotment would be cancelled and by another letter dated 19.8.2004, the Managing Director was directed to remove the illegal construction , failing which the allotment would be cancelled. The said Salam Iraqui filed Title Suit No.45 of 2003 against the order of vacating the shop and by order dated 4.9.2004 the learned Munsif –III,Patna was pleased to order for status quo to be maintained. However, in the - 7 - meantime the said Salam Iraqui was arrested by the A.S.I. of Kotwali police in connection with Kotwali P.S. Case No.80 of 2004 and in course of search the licensed rifle and cartridges were seized and kept in the Malkhana of the Police Station, for which a Sanha entry was accordingly made. It has also been submitted that the complainant wanted to be released from police custody but when the petitioner declined he carried a grudge against the petitioner herein and after he release from jail on 29.9.2004 he filed Complaint Case no.2401(C) of 2004 on 4.10.2004 on false allegations . A report was called for from the Senior Superintendent of Police by the learned Sub Divisional Judicial Magistrate, Patna, in respect of the allegations against the petitioner and the report submitted was against the complainant and his behaviour . It is also submitted that the petitioner was creating nuisance in Maurya Lok Complex premises by way of use of unauthorized power for which the shopkeepers met the Vice- Chairman of PRDA and Vice –Chairman in exercise of his powers under Section 85(A) of the Bihar Regional Development Authority Act passed a reasoned order in Misc.Case No.213A /2004 for removal of encroachment from Shop Nos.105 and 106 which had been allotted to Bihar Emporium and a request was made to the District Magistrate for appointment of a Magistrate for removal of encroachment and depute police force for the said purpose and on the basis thereof the shop of the complainant was sealed by the Magistrate in presence of other businessmen and thereafter on return to the Police Station a Station Diary entry was made in respect - 8 - thereof on 13.10.2004 .Then again by non F.I.R. No.27 of 2004 the petitioner recommended the Sub Divisional Officer, Sadar Patna to initiate a proceeding under Section 107 Cr.P.C. against the complainant in view of the complaint made by the shop-keepers of Maurya Lok Complex against the complainant with respect to his nefarious activities and threats given to other shop-keepers. Aggrieved thereby the complainant filed Complaint Case No.2686 of 2004 against the petitioner and two more persons including the Vice- Chairman, PRDA. and in the meantime , chargesheet was submitted against the complainant in Kotwali P.S. Case No.80 of 2004 . Thereafter one Raj Kumar filed Kotwali P.S. Case No.527 of 2004 against the complainant and his brother under Section 386 I.P.C. and the brother of the complainant was arrest and sent to jail in connection therewith and the said brother on his release from judicial custody filed Complaint Case no.3087 of 2004 against the petitioner and one Sub-Inspector on false ground of giving threat and taking out several items including money from his shop. It has further been submitted that by order dated 10.1.2005, the learned Munsif-III, Patna rejected the application filed for extension of order of status quo passed in Title Suit No.45 of 2003. Subsequently, the Estate Officer, PRDA requested the petitioner herein as Officer Incharge for taking legal action against the concerned persons for opening a sealed shop and in pursuance of the aforesaid request, Kotwali P.S. Case no.97 of 2005 was registered on 28.2.2005. In the meantime , the Inspector General of Police ,Patna - 9 - Zone vide his letter dated 20.5.2005 submitted a report in relation to Kotwali P.S. Case No.85 of 2004 with an observation that the complainant used to indulge in illegal works , for which legal action has been taken against him. Prior to this the Senior Superintendent of Police vide his Memo dated 27.2.2005 submitted a written report before the Lokayukta with respect to the allegations levelled by the complainant against the petitioner and agreed with the report submitted by the Deputy Superintendent of Police ( Law & Order) who had observed that the complainant was prejudiced against the petitioner for the legal actions taken against him. On the aforesaid background the specious submissions of the learned counsel for the petitioner is that he was entitled to the protection of Section 197 Cr.P.C. since the offence alleged to have been committed had something to do or was related in some manner with the discharge of his official duty. It was submitted that the language of Section unmistakably shows that the bar on exercise of powers by the court to take cognizance is mandatory and the previous sanction from the competent authority for prosecution of the public servant who is an accused of having committed an offence either in the execution of his duty or in the purported execution of his duty is essential to take cognizance. In this connection, it was submitted that the story of forcibly taking away Mobile sets , re-charge coupons and cash by the petitioner has been propounded to make out a genuine case of theft and to show that the action of the petitioner was not in discharge of his official duty. - 10 - The submission advanced by the learned counsel for the petitioner was sought to be assailed by the learned counsel for the complainant –Opp.Party no.2 by submitting that the overt act of the petitioner in both cases could not be said to be an act in discharge of his official duty and that he exercised his official powers not only to abuse but also to extend threats to the complainants as also assault their staff members and in course thereof forcibly took away several articles from the shop without either paying for it or giving a receipt for the same or even preparing a seizure list. Admittedly, the order of status quo of the Munsif had not been extended and the shop in question was sealed under the supervision of the Executive Magistrate, who had been deputed by the District Magistrate for the purpose on the request of the Vice- Chairman, PRDA. This only goes to show that the sealing of the shop had been done by the Magistrate and the police force had been deployed only to assist the Magistrate. It is manifest that the petitioner was present at the place of occurrence in his official capacity to assist the Magistrate in sealing the shop of the complainant in pursuance of the judicial order of the Vice-Chairman, PRDA. It further appears that the overt acts alleged against the petitioner have been superimposed to give a criminal tinge and trappings so as to make believe the commission of offences which were neither commensurate nor in exercise of the official duty of the petitioner. In such circumstances, it cannot but be held that the acts complained of by the complainants against the appellant did not have a reasonable - 11 - nexus with the official duty of the petitioner. Accordingly, the appellant was entitled to the immunity from criminal proceeding without sanction provided under Section 197 Cr.P.C. There is another aspect of the matter. The complainants do not appear to have approached the Magisterial Courts with clean hands and have deliberately attempted to suppress relevant and material facts to make out a case of being oppressed and victimized by the petitioner herein. Such unwarranted prosecution cannot be permitted to continue. In the result, the entire criminal proceeding in both complaint cases so far as the petitioner is concerned is hereby quashed and both the applications are allowed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 16th April, 2009 Nawal Kishore Singh/A.F.R