Cr. M. P. No. 1690 of 2007 An Application under Section 482 of the Code of Criminal Procedure, 1973 1. Ajit Kumar Barnwal, son of late Rameshwar Prasad Barnwal, R.P.F. Commandant, posted at Chakradharpur, P.S. Charadharpur, District Singhbhum West 2. Ajay Kumar Patel @ Shankar Ajay Patel, Inspector R.P.F., posted at Dhanbad, P.O., P.S. & District Dhanbad 3. Pankaj Prakash, son of Tripurari Prasad, Sub Inspector, R.P.F., P.O., P.S. & District Dhanbad .......... Petitioners Versus 1. The State of Jharkhand 2. Mithilesh Kumar Dubey, son of Chandradeo Dubey, resident of Village, Deori Khurd, P.S. Hussainabad, District Palamau ………. Opposite Parties PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioners : Mr. Anil Kumar, Advocate For the State : For the O.P. No. 2 :__ C.A.V. on 6.01.2015 Delivered on 12.03.2015 Heard learned counsel appearing on behalf of the petitioners. None one appears on behalf of the State and the opposite party No.
2. In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with C.P. Case No. 458 of 2007 including the order dated 17.07.2007 passed by Smt. Garima Mishra, the learned Judicial Magistrate, Dhanbad, whereby and whereunder, cognizance has been taken for the offence punishable u/s 341/ 323/ 34 of the Indian Penal Code (IPC). A complaint case was filed by the complainant, opposite party No. 2 herein, in which it was alleged that the complainant, who was working as head clerk in the office of R.P.F., Dhanbad, was called by the petitioner No. 1 and was asked as to why a complaint has been made in the office of D.I.G., Hazipur against him. Denial of the said allegation, led to the petitioner No. 1, locking up the complainant in the bathroom with the help of his bodyguard. It is also alleged that after he came out from the bathroom, the accused persons who were armed with Lathi started assaulting the complainant mercilessly. As a result, he received injuries on his person and while he tried to flee away he was caught by the accused No. 2 and 3 and they had snatched his golden chain, wrist watch and Rs. 700/-. The cause of assault according to the complaint was that the complainant, who had come from Hazipur and joined at 2. Dhanbad, was prevented by the accused No. 1 to join at Dhanbad, as the accused No. 1 wanted some Rao to continue in the said post at Dhanbad. After enquiry was conducted u/s 202 of the Code of Criminal Procedure (Cr.P.C.) by examining the complainant on solemn affirmation as also his witnesses, cognizance was taken by the learned Judicial Magistrate, Dhanbad u/s 341/ 323/ 34 I.P.C. The learned counsel for the petitioners has submitted that the petitioners are permanent employees under the Ministry of Railways and it would be unthinkable that the petitioners would commit such type of offence. It has been submitted that on 14.3.2007, a joint complaint was submitted by the ministerial staff of the office of R.P.F., Dhanbad, alleging misbehaviour against the complainant, which led to the issuance of a show cause notice to the complainant on 14.3.2007 at the instance of the petitioner No. 1 through petitioner No.
2. It has further been submitted that the complaint case was lodged after the issuance of said show cause notice to the complainant and that even in the enquiry report it was concluded that on 14.3.2007, the conduct of the complainant was indisciplined and with a view to disrupt official work and as such the learned counsel for the petitioners submits that the complainant with a vindictive attitude had lodged the present case. He has submitted while referring to Section 20 of the Railways Protection Force Act, 1957 that the members of the railways protection force are protected from any suit or proceeding for an act done in the discharge of his duty. In this context he has referred to a judgment in the case of Vishnu Kumar and others v. The State of Bihar (now Jharkhand) reported in 2007(3) JLJR527 Although no one appears on behalf of the opposite party No. 2, but on perusal of the counter affidavit, which has been filed by the opposite party No. 2, the allegations made against the petitioners have been reiterated and certain other facts have been inserted with respect to the nomination of petitioner No. 2 as an enquiry officer as also with respect to some departmental proceedings. After hearing the learned counsel for the petitioners and after going through the records, I find that on 14.3.2007 with respect to the misbehaviour and using abusive language by the complainant, the petitioner No. 1, being the Divisional Security Commissioner, had called for a discreet enquiry into the allegations which was found to be true as would appear from the report of the enquiry officer dated 8.5.2007 submitted after conclusion of the said discreet enquiry. In the counter affidavit filed by the complainant, opposite party No. 2 3. herein, it was also stated about the enquiry being conducted and the fact that he was transferred to Chakradharpur Division of South Eastern Railways. The complainant opposite party No. 2 in his counter affidavit has mainly dealt with the enquiry report as well as the competency of the accused persons who conducted the enquiry. If the veil is lifted in the complaint petition, the allegations made against the petitioners seem to be a fall out of the disciplinary action which was proposed to be taken against the complainant as the discreet enquiry has duly proved his misbehaviour and use of abusive language on 14.3.2007. No doubt, the powers conferred u/s 482 Cr.P.C., the High Court does not and could not conduct a mini trial or a roving enquiry, but at the same time it is not prevented from accepting unimpeachable or totally acceptable circumstances into account which can lead to a conclusion that an accused should not be made to face the rigours of trial. The allegations made in the complaint case seem to be in the backdrop of the disciplinary enquiry a malicious prosecution, which if allowed to continue would be an abuse of the process of the Court. So far as section 20 of the Railway Protection Act, 1957 is concerned, the same deals with the protection of acts of members of the Force and it is envisaged that in any suit or proceeding against any member of Force for any act done by him in discharge of his duties, it shall be lawful for him to plead that such act done by him under the orders of a competent authority. In this connection, reference may be made to the case of Vishnu Kumar Vs. State of Bihar (Now Jharkhand) (supra) wherein while considering section 20 of the Railway Protection Force Act, 1957 and section 197 of Cr.P.C., it was held as follows:- "9. As stated above, petitioners Nos. 3 to 6, being the members of the Railway Protection Force at the relevant time, are deemed by virtue of Section 15 of the Act to have always been on duty. It may be noted that even according to the allegations in the complaint petition, command was issued to the petitioner Nos. 3 to 5 for resorting to Lathi charge and it was in compliance to the command given by their superior in Office, the use of force was resorted to by the petitioner Nos. 3 to 6. It is, therefore, apparent that the alleged act of the petitioner Nos. 3 to 6 was in discharge of their duties as members of the Railway Protection Force. In view of Section 20(3) of the Act, prosecution against the aforesaid members of the Railway Protection Force could only have been commenced after a prior notice in writing of such proceeding and of the cause thereof to the petitioners themselves as well as to their superior in office. This requirement of Section 20(3) of the Act has not been complied with and it must, therefore, followed with the prosecution of the petitioner Nos. 2 to 6 as instituted against them is not valid.
10. As regard the petitioner Nos. 1 and 2, it would appear from the allegations in the complaint petition that the only grievance against them as made by the complainant is that on being informed by the complainant regarding the acts of high-handedness and violence indulged by the members of the Railway Protection Force and other Officers, the petitioner Nos. 1 and 2 did not offer any help nor took any action on the complaint of the complainant. This in itself does in no way constitute any offence against the petitioner Nos. 1 and 2 for 4. which the cognizance was taken by the learned court below. The grounds advanced by the learned Counsel for the Opposite Party No. 2 that the issue of sanction for prosecution would in itself constitute an issue to be considered by the trial court, does not appear to be persuasive. The averments made in the complaint petition of the complainant are clear and unambiguous when it declares that the petitioners including petitioner Nos. 1 and 2 are Government servants under the Indian Railways and the alleged acts attributed to them are acts, which were apparently committed in exercise of their official duties though may be in excess of discharge of their official duties. Therefore, there could be no controversy regarding the fact that even if the petitioners are intended to be prosecuted for the offences, but such prosecution can be initiated only after sanction obtained from the competent authority for their prosecution under Section 197 of the Cr.P.C. The present case, as has been indicated above, has been instituted by the complainant-opposite party no. 2 making reckless allegations against the petitioners which considered in the facts emanating from the disciplinary inquiry with respect to misbehavior of the complainant, the petitioners have been made accused only to fulfill the grudge of the complainant and in such circumstances also, it can be said that the case lodged by the complainant is apparently a case of malicious prosecution. After considering the entire aspect of the matter, I do find this a fit case, which warrants interference by this Court by invoking the inherent jurisdiction u/s 482 Cr.P.C. Accordingly, this application is allowed and the entire criminal proceeding in connection with C.P. Case No. 458 of 2007 including the order dated 17.07.2007 passed by the learned Judicial Magistrate, Dhanbad, whereby and whereunder, cognizance has been taken for the offence punishable u/s 341/ 323/ 34 of the Indian Penal Code (IPC) against the petitioners is quashed. . (Rongon Mukhopadhyay, J) Jharkhand High Court, Ranchi Dated the 12th, March, 2015 MK/N.A.F.R.