Full Judgment
2.This application has been filed on behalf of the petitioners for quashing of the order dated 23.06.2005 passed in Complaint Case No. 1497 (C) of 2004 (Trial No. 2480 of 2004) by which the Judicial Magistrate, 1st Class, Arrah has taken cognizance for the offences under Sections 395 and 323 of the Indian Penal Code. The petitioners also challenged the order dated 25.04.2007 passed in Sessions Trial No. 2305 of 2007 by which the Additional Sessions Judge, Fast Track Court No. II, Arrah has rejected the discharge application filed on behalf of the petitioners.
3.Two points have been raised in these quashing applications. Firstly, it has been argued that cognizance could not have been taken without the prior sanction of the competent authority i.e. the State Government under Section 197 of the Code of Criminal Procedure, as all the accused persons in discharge of their official duties had committed certain acts which has led to the filing of the present complaint case by one Dewaki Singh. The second issue raised on behalf of the petitioner is that the facts disclosed that the entire case has been filed out of malice.
4.Dealing with the second part of the submission first, it would be relevant to state the background of this case. On 03.07.2004, the petitioner Subodh Kumar Thakur instituted a case, which is numbered as Tarari Police Station Case No. 49 of 2007, in which it has been stated that the petitioner along with other police personnel on receiving information that 7-8 criminals have gathered at a point, the petitioner along with the police party reached there at about 08:30 PM. When they reached near the brick kiln, they found that two persons were running away from the place of occurrence. Chowkidar Babban Yadav is said to have informed the petitioner that two persons were Rajendra Yadav and Kameshwar Paswan. On seeing the police party, these two persons fired on the police party and in retaliation, the petitioners and others chased them and while chasing them, also fired on the aforesaid two persons. The Police party was able to apprehend one Chandreshwar Jha and Neeraj Kumar Yadav. These persons were carrying firearms which were recovered and seized. In the First Information Report itself, it is mentioned that Rajendra Yadav is accused in as many as six criminal cases, and as such, a case was instituted under Sections 353, 307/34 of the Indian Penal Code and Sections 25 (1-B)A, 26 and 35 of the Arms Act. by which the Judicial Magistrate, 1st Class, Purnea has taken cognizance for the offences under Sections 193, 198, 471, 120B of the Indian Penal Code.
5.The complainant instituted a case against the petitioner and one Baban Yadav under Sections 364, 302, 218 and 120B of the Indian Penal Code, in which cognizance was taken. The matter came up before this Court and it has been referred to the I.G. of Police for the purpose of considering whether it is essential to obtain sanction in such cases vide order dated 17th March, 2011 passed in Criminal Misc. No. 21184 of 2005.
6.A third case was instituted by one Rajendra Kumar Sharma, which is numbered as Tarari Police Station Case No. 66 of 2004 under Section 395 of the Indian Penal Code against four named and ten unknown persons. During the investigation of Tarari Police Station Case No. 66 of 2004, the petitioner arrested one Binay Paswan and Ghurahu Yadav, from whom certain looted articles were recovered. The Police Party raided the houses of two persons, namely, Bishwanath Gupta, who is also an accused in this case and Ram Ayodhya Singh on the basis of the aforesaid confessional statement on the same day. Ram Ayodhya Singh is the brother of the complainant, Dewaki Singh. Recovery was made and seizure list was prepared. After the raid was made, the present Complaint Case No. 1417 C of 2004 was instituted against the petitioners. The allegations in the complaint case are that the petitioners and other police personnel entered into the house of the complainant Dewaki Singh and searched it. It is alleged that they abused all the members of the house including the women and took away two suitcases and also jewellery belonging to the complainant. The said occurrence took palace on 05.10.2004 and the complaint case was filed after 25 days on 01.11.2004.
7.The submission on behalf of the petitioner is that the Complaint Case No. 1497 C of 2004 has been filed in retaliation to the case where the petitioner has made the brother of the complainant, Ram Ayodhya Yadav, an accused. It is submitted that it would be difficult for any Police Officer to investigate and perform their duties, if each time they enter into the house and conduct search, they would be made accused in cases under Sections 395 of the Indian Penal Code. Therefore, the prosecution should not be allowed to continue without sanction of the competent authority under Section 197 of the Code of Criminal Procedure.
8.A counter affidavit has been filed on behalf of the complainant-Opposite Party No. 2 in which it is said that the petitioner has misbehaved and stolen some ornaments and other articles from the house, which have not been put on Test Identification Parade. It is further submitted that the entire episode has been engineered by one Baban Yadav, a Chowkidar who is under suspension vide order dated 29.03.2004 passed by the District Magistrate, Bhojpur in Criminal Case No. 13 of 2003. There is allegation that the petitioners have cooked up all the materials in the case diary to build up a defence that they were performing their official duties.
9.The facts aforesaid disclose that there is a long line of criminal cases pending against the complainant of this case. It cannot be doubted that the petitioner had entered in the house of the complainant for conducting a search. If, it is true that the petitioner had misused his powers by abusing the inmates of the house and taken away the articles which have not been recorded in the search list, it would also be equally true that the complainant has filed the case after a delay of 25 days, purportedly, in order to create a defence for the complainant's brother, who is accused in Tarari Police Station Case No. 66 of 2004. The fact that Ram Ajodhya Yadav was accused in several cases has been denied by the Opposite Party No. 2, inasmuch as it has been stated that he has either been acquitted or final form has been submitted in his favour.
10.Let the matter be brought to the notice of the Superintendent of Police, Bhojpur who must be made aware of the nature of cases being filed against the Police Officials.
11.Accordingly, I direct that Tarari Police Station Case No. 66 of 2004 should be heard and after the judgment is delivered in Tarari Police Station Case No. 66 of 2004, the Court should proceed with the present Complaint Case No. 1497C of 2004 so that prima facie it can be shown that the petitioners had gone to search the house of the complainant in pursuance of their duties.