CRIMINAL MISCELLANEOUS No.19516 OF 2001 In the matter of an application under Section 482 of the Code of Criminal Procedure ---------- Jitendra Kumar Singh, Son of Upendra Prasad Singh, resident of Village- Mishri Nagar, Guhma, Police Station-Jalalgarh, District- Purnia --------- -- Petitioner Versus 1. THE STATE OF BIHAR 2. Prem Chand Mishra @ Prabhash Chandra Mishra, Officer Incharge of Jalalgarh Police Station, Jalalgarh, District-Purnia 3. Sri R.P.Singh, A.S.I. Jalalgarh Police Station, Police Station- Jalalgarh, District-Purnia ------------ Opp.Parties. -------- For the petitioner: Sri Jagdish Prasad Bhagat, Advocate For the State : Sri Ashwini Kumar Sinha, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner has prayed for quashing of an order dated 4.1.1999 passed by Sri R.N.Tiwary, Judicial Magistrate, 1st Class, Purnia in Complaint Case No.C.A765 of 1998. By the said order, the learned Magistrate under Section 203 of the Code of Criminal Procedure had rejected the complaint filed by the petitioner, mainly on the ground of non- availability of prosecution sanction under Section 197 of the Code of Criminal Procedure. 2. Short fact of the case is that the petitioner filed a complaint before the learned Chief Judicial Magistrate, Purnia , which was numbered as Complaint Case No.765 of 1998. In the complaint petition, it was alleged that while the petitioner was going to D.S. College, Katihar for appearing in the Examination and was at the Bus Stand, he was apprehended by accused no.2, who was Officer Incharge of Jalalgarh 2 Police Station, Purnia. He was brought to Police Station. Thereafter, the mother and other family members of the petitioner rushed to the Police Station after getting information that the petitioner was arrested. It was alleged in the complaint petition that while the mother of the petitioner approached the Officer Incharge/ Opp.Party no.2, he demanded Rs.25000/- as illegal gratification. With a view to get her son released from the clutch of the Opp.Party no.2, the mother of the petitioner was left with no option but to arrange some money and she returned. After some time, any how she arranged Rs.5000/- and thereafter she again went to the Police Station. After noticing the fact that the mother of the petitioner was going to give Rs.5000/- to Opp.Party no.2 in the Police Station itself, the petitioner asked his mother not to pay any farthing to Opp.Party no.2. This was enough for Opp.Party no.2 and he became furious and after taking Rs.5000/- from the mother of the petitioner, he started assaulting the petitioner. The mother of the petitioner tried to save him, but Opp.Party no.3 who was an Assistant Sub Inspector of Police in the same Police Station forcibly dragged out his mother from the Police Station. In the assault, the petitioner received severe injuries and it was asserted in the complaint petition that one hand of the petitioner was fractured due to severe assault given by Opp.Party no.2. On the aforesaid allegation, complaint petition was filed. Along with complaint petition, some relevant documents were also filed. After filing of complaint petition, the complainant was examined on S.A. and in support of the complaint case, seven witnesses were examined as enquiry witnesses, who categorically supported the case of the complainant. The learned Magistrate after conducting enquiry by its order dated 4.1.1999 3 rejected the complaint petition under Section 203 of the Code of Criminal Procedure. 3. Aggrieved with the order of rejection of complaint petition, the petitioner filed a revision vide Cr.Rev.No.61 of 1999, which too stood rejected by order dated 22.3.2001. After rejection of the revision petition, the petitioner approached this Court by filing the present petition and it was admitted on 18.1.2002 and lower court record was also called for and the same has been received, which is kept on record of the present case. While admitting, it was directed to issue notice to Opp.Party nos.2 and 3. Subsequently, Opp.Parties entered their appearance through Counsel. Despite Vakalatnama was filed on behalf of Opp.Party nos.2 and 3, at the time of hearing none appeared. 4. Sri Jagdish Prasad Bhagat, learned counsel appearing on behalf of the petitioner, while challenging the order of rejection of complaint petition submits that on perusal of the order of rejection of complaint petition, i.e. order dated 4.1.1999, it is evident that the complaint’s case was fully supported by all the seven enquiry witnesses. The learned Magistrate despite materials available on record, which was sufficient for proceeding with the case, took a plea that since Opp.Party nos.2 and 3 were police officials in the case, prosecution sanction was required and in absence of prosecution sanction, the learned Magistrate rejected the complaint petition. Of course, the learned Magistrate has also given his own reasoning while differing with the allegations made by the complainant. It was submitted by Sri Bhagat, learned counsel appearing on behalf of the petitioner that the allegation made in the complaint petition 4 was not related to the discharge of official duty of Opp.Party no.2. It was submitted that the allegation of assault and fracturing hand of the petitioner cannot be considered as an act, which was in relation to discharge of official duty and, as such, in the present case there was no requirement for obtaining prosecution sanction before taking cognizance . The learned counsel for the petitioner has further submitted that for the time being even if it is assumed that there were some nexus with the official duty the question of sanction could have been examined during the trial and not at the initial stage of cognizance. Learned counsel has referred to a Judgment of the Hon’ble Supreme Court reported in (2006)1 SCC (Cri.) 23; Centre for Public Interest Litigation and Another Vs. Union of India and Anr. Learned counsel for the petitioner further, while referring to the lower court record, submits that the petitioner was illegally arrested by Opp.Party no.2 on an allegation that the petitioner was an accused in Kaspa ( Jalalgarh) P.S. Case No.88 of 1998, registered under Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Learned counsel for the petitioner has referred to a copy of ordersheet passed in Kaspa( Jalalgarh) P.S. Case No.88 of 1998. The order, which is kept on lower court record, indicates that on 25.5.1998(which is the date of occurrence in the present case) the learned Magistrate for the first time had seen the F.I.R. and later on the same date the petitioner was forwarded and produced by the Officer Incharge of Jalalgarh Police Station. It further makes it clear that the petitioner, while he was produced before the learned Magistrate, had made specific complain that he was assaulted in the Police Station and his hand was swollen. The learned Magistrate has also called for a show cause from 5 the Officer Incharge as to under what circumstances the accused (the petitioner in the present case) was assaulted. This makes it clear that those materials were sufficient for the purposes of proceeding with the case. So far as question of sanction is concerned, this Court is of the opinion that for such an allegation, the learned Magistrate should not have refused to proceed with the case. The allegation of demanding and accepting illegal gratification and brutally assaulting the petitioner cannot be considered as an act of discharge of official duty and in absence of any material showing the act as in relation to discharge of official duty, Section 197 of the Code of Criminal Procedure is not attracted. 5. Sri Ashwini Kumar Sinha, learned Addl. Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. 6. I have also perused the revisional order. Of course, the same has not been challenged through specific pleading in the present case but orally it was prayed by Sri Bhagat, learned counsel for the petitioner for quashing of the same. After going through the revisional order, the Court is of the opinion that the learned 4th Addl. Sessions Judge, Purnia while passing the order dated 22nd March, 2001, whereby he has rejected the revision petition, had acted as a trial court or as if he was hearing an appeal. Moreover, the Court is of the view that if the impugned order, i.e. order of rejection of discharge petition goes the order of revisional court becomes insignificant. 7. In view of the above facts and circumstances of the case , the Court is of the opinion that while rejecting the complaint petition, the learned Magistrate has committed a grave error and accordingly, the order 6 is liable to be set aside . The order dated 4.1.1999 passed in Complaint Case No.765 of 1998 by Sri R.N.Tiwary , Judicial Magistrate, 1st Class, Purnia is hereby set aside and the matter is remitted back to the court of the learned Magistrate with a direction to proceed with the case in accordance with law. 8. Keeping in view the fact that the matter remained pending for a long period, it is desirable to direct the court below to proceed with the case expeditiously without granting any unnecessary adjournment. Office is directed to remit back the lower court record alongwith copy of this order. Patna High Court,Patna Dated: the 19th August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)