Mahesh Kumar, Officer-in-charge Vs. the State of Bihar and Abdullah Mian Son of Fida Hussain - Court Judgment

Excerpt:
indian penal code, 1860-section 322, 504 and 427-grievous hurt and criminal intimidation-cognizance-prosecution of police officials-offence committed during investigation about stolen vehicle-from evidence led by witnesses at inquiry under section 202 cr.p.c., prima facie case was made out to proceed against accused-in entertaining claim of petitioner high court would have to look into disputed questions of facts which cannot be done in a proceeding under section 482 cr.p.c.-whether petitioner had exceeded his jurisdiction or whether sanction under section 197 cr.p.c. was required in facts and circumstances of case can only be proved by cogent evidence at a full dressed trial-court not inclined to interfere with impugned order-application dismissed. - orderabhijit sinha, j.1. the petitioner, the erstwhile officer incharge, lauriya p.s. in the district of west champaran and presently the officer incharge, tariyani p.s. in the district of sheohar, who along with another police official and 15-20 unknown policemen has been arrayed as accused in complaint case no. 733(c) of 2004, has prayed for the quashing of the order dated 4.2.2006 passed therein by sri r.c. malviya, judicial magistrate, first class, bettiah, whereby he has taken cognizance under sections 323, 504 and 427 i.p.c. against the petitioner and the other named police official.2. the complainant, one abdullah mian, impleaded as o.p. no. 2 herein, filed the said complaint on 2.4.2004 alleging commission of offences under sections 147, 148, 149, 323, 354, 342, and 379 i.p.c. at the hands of the accused at around 6 p.m. on 31.3.2004 at the residence of the complainant at village kateya within lauriya p.s. it is alleged that all the accused variously armed with revolvers and rifles arrived at the residence of the complainant and started enquiring about the maruti van, bearing registration no. ddv-2083, kept parked in front of the house of halama khatoon and when he was told by the villagers and witnesses of the said vehicle belonging to one amanullah of dubaulia accused no. 1 discarded the explanation and claimed the vehicle to be a stolen one. it is further alleged that in the meanwhile when the complainant's son, imtiyaz ahmad, employed in the airforce, introducing himself, sought to instill the fact of the vehicle not being a stolen one, accused no. 1, allegedly flew into a rage and lambasted imtiyaz in abject foul language which when objected to by imtiyaz and his brother, md. majibullah, accused no. 1 started assaulting imtiyaz with slaps and fists and butt of the rifle even as accused no. 2 exhorted the policemen into action. the policemen allegedly swung into action and started assaulting imtiyaz and majibullah with kicks, lists and rifle butts and felled them to the ground and when witness nos. 3 and 4 rushed to their rescue, they too were assaulted mercilessly and dashed to the ground by catching hold of their hair. accused no. 1 is also alleged to have torn and snatched the saris of witness nos. 3 and 4. it is alleged further that the villagers remained passive onlookers even as accused no. 1 illegally taking imtiyaz and majibullah into custody drove away in the jeep. it is also alleged that while departing accused no. 1 took away a goat worth rs. 1200/- from the house of the complainant. the further allegation is that imtiyaz and majibullah were also assaulted at the police station where they had been removed.3. assailing the impugned order the submission on behalf of the petitioner is that the entire case is false and baseless and has been filed as a counter blast to circumvent the police case lodged against the sons of the complainant. in this connection, it was submitted that one nesar mian, son of gofur mian, a wanted criminal in many cases as also an absconder from jail, was reported to have been residing in his sasural at kateya village and the petitioner with other police personnels, constables and b.s.f. jawans went to kateya in search of the said nesar mian and as soon as he reached near the sasural of nesar mian, he saw 2-3 persons fleeing therefrom and out of them two came to the police party and started creating obstructions in the goal of the police party and as a consequence thereof the said nesar mian managed to escape. the two obstructing persons were caught by the b.s.f. jawans who disclosed their names as imitiaz ahmad, son of abdullah ahmad and majibullah ahmad, son of fida hussain and for the said occurrence lauriya p.s. case no. 78 of 2004 was registered on 31.3.2004 by suresh chandra tiwari, police inspector, jogapatti, who has been made to figure as accused no. 2 in the instant complaint petition, and after investigation chargesheet was submitted on 18.7.2004. it was also pointed out that the complainant of the instant case is the father of imitiaz ahmad, one of the obstructing accused of lauriya p.s. case no. 78 of 2004 and the complaint came to be filed on 2.4.2004 after the said p.s. case had been registered on 31.3.2004 which clearly indicates that the complaint had been lodged on false accusations as an afterthought to whittle down the allegations against imitiaz.4. it was further submitted by the learned counsel for the petitioner that since the petitioner had arrested imitiaz ahmad and majibullah ahmad for obstructing him in due discharge of his official duty, he was protected under section 197(1)(b) cr.p.c. and the taking of cognizance without the sanction order was an apparent abuse of the process of the court.5. o.p. no. 2 has appeared to contest the application and a counter affidavit has been filed on his behalf. while justifying the impugned order, it was sought to be submitted that the petitioner had exceeded his jurisdiction and had brutally assaulted his son and had misbehaved with the lady members of the family and as such no sanction under section 197 cr.p.c. was required for his prosecution. in support of his submissions, a reference was made to annexure-a/1, the enquiry report sent by the d.i.g. to the director general of police in respect of the alleged occurrence as claimed by the petitioner which only shows the claims of the petitioner to be untrue. it was also submitted that although b.s.f. jawans were said to be present yet none of them figured as witness in the f.i.r. which only goes to show that the petitioner had minted the story to save his own skin.6. i have perused the enquiry report of the d.i.g. which appears to be a report submitted after local inspection consequent to the order of the director general of police. the same partly justifies the claims of both parties and also indicates that no intervention should be done in the matter leaving the same entirely in the hands of the court.7. i have also perused the impugned order which indicates that from the evidence led by the witnesses at the inquiry under section 202 cr.p.c., a prima facie case was made out to proceed against the accused.8. from the above, it appears that in entertaining the claim of the petitioner this court would have to look into disputed questions of facts which cannot be done in a proceeding under section 482 cr.p.c. whether the petitioner had exceeded his jurisdiction or whether sanction under section 197 cr.p.c. was required in the facts and the circumstances of the case can only be proved by cogent evidence at a full dressed trial.9. in the facts and the circumstances of the case, i am not inclined to interfere with the impugned order. accordingly, the application is dismissed.

Judgment:
ORDER

Abhijit Sinha, J.

1. The petitioner, the erstwhile Officer Incharge, Lauriya P.S. in the district of West Champaran and presently the Officer Incharge, Tariyani P.S. in the district of Sheohar, who along with another police official and 15-20 unknown policemen has been arrayed as accused in Complaint Case No. 733(C) of 2004, has prayed for the quashing of the order dated 4.2.2006 passed therein by Sri R.C. Malviya, Judicial Magistrate, First Class, Bettiah, whereby he has taken cognizance under Sections 323, 504 and 427 I.P.C. against the petitioner and the other named police official.

2. The complainant, one Abdullah Mian, impleaded as O.P. No. 2 herein, filed the said complaint on 2.4.2004 alleging commission of offences under Sections 147, 148, 149, 323, 354, 342, and 379 I.P.C. at the hands of the accused at around 6 P.M. on 31.3.2004 at the residence of the complainant at village Kateya within Lauriya P.S. It is alleged that all the accused variously armed with revolvers and rifles arrived at the residence of the complainant and started enquiring about the Maruti van, bearing registration No. DDV-2083, kept parked in front of the house of Halama Khatoon and when he was told by the villagers and witnesses of the said vehicle belonging to one Amanullah of Dubaulia accused No. 1 discarded the explanation and claimed the vehicle to be a stolen one. It is further alleged that in the meanwhile when the complainant's son, Imtiyaz Ahmad, employed in the Airforce, introducing himself, sought to instill the fact of the vehicle not being a stolen one, accused No. 1, allegedly flew into a rage and lambasted Imtiyaz in abject foul language which when objected to by Imtiyaz and his brother, Md. Majibullah, accused No. 1 started assaulting Imtiyaz with slaps and fists and butt of the rifle even as accused No. 2 exhorted the policemen into action. The policemen allegedly swung into action and started assaulting Imtiyaz and Majibullah with kicks, lists and rifle butts and felled them to the ground and when witness Nos. 3 and 4 rushed to their rescue, they too were assaulted mercilessly and dashed to the ground by catching hold of their hair. Accused No. 1 is also alleged to have torn and snatched the saris of witness Nos. 3 and 4. It is alleged further that the villagers remained passive onlookers even as accused No. 1 illegally taking Imtiyaz and Majibullah into custody drove away in the jeep. It is also alleged that while departing accused No. 1 took away a goat worth Rs. 1200/- from the house of the complainant. The further allegation is that Imtiyaz and Majibullah were also assaulted at the police station where they had been removed.

3. Assailing the impugned order the submission on behalf of the petitioner is that the entire case is false and baseless and has been filed as a counter blast to circumvent the police case lodged against the sons of the complainant. In this connection, it was submitted that one Nesar Mian, son of Gofur Mian, a wanted criminal in many cases as also an absconder from jail, was reported to have been residing in his sasural at Kateya village and the petitioner with other police personnels, constables and B.S.F. Jawans went to Kateya in search of the said Nesar Mian and as soon as he reached near the sasural of Nesar Mian, he saw 2-3 persons fleeing therefrom and out of them two came to the police party and started creating obstructions in the goal of the police party and as a consequence thereof the said Nesar Mian managed to escape. The two obstructing persons were caught by the B.S.F. Jawans who disclosed their names as Imitiaz Ahmad, son of Abdullah Ahmad and Majibullah Ahmad, son of Fida Hussain and for the said occurrence Lauriya P.S. Case No. 78 of 2004 was registered on 31.3.2004 by Suresh Chandra Tiwari, Police Inspector, Jogapatti, who has been made to figure as accused No. 2 in the instant complaint petition, and after investigation chargesheet was submitted on 18.7.2004. It was also pointed out that the complainant of the instant case is the father of Imitiaz Ahmad, one of the obstructing accused of Lauriya P.S. Case No. 78 of 2004 and the complaint came to be filed on 2.4.2004 after the said P.S. case had been registered on 31.3.2004 which clearly indicates that the complaint had been lodged on false accusations as an afterthought to whittle down the allegations against Imitiaz.

4. It was further submitted by the learned Counsel for the petitioner that since the petitioner had arrested Imitiaz Ahmad and Majibullah Ahmad for obstructing him in due discharge of his official duty, he was protected under Section 197(1)(b) Cr.P.C. and the taking of cognizance without the sanction order was an apparent abuse of the process of the court.

5. O.P. No. 2 has appeared to contest the application and a counter affidavit has been filed on his behalf. While justifying the impugned order, it was sought to be submitted that the petitioner had exceeded his jurisdiction and had brutally assaulted his son and had misbehaved with the lady members of the family and as such no sanction under Section 197 Cr.P.C. was required for his prosecution. In support of his submissions, a reference was made to Annexure-A/1, the enquiry report sent by the D.I.G. to the Director General of Police in respect of the alleged occurrence as claimed by the petitioner which only shows the claims of the petitioner to be untrue. It was also submitted that although B.S.F. Jawans were said to be present yet none of them figured as witness in the F.I.R. which only goes to show that the petitioner had minted the story to save his own skin.

6. I have perused the enquiry report of the D.I.G. which appears to be a report submitted after local inspection consequent to the order of the Director General of Police. The same partly justifies the claims of both parties and also indicates that no intervention should be done in the matter leaving the same entirely in the hands of the court.

7. I have also perused the impugned order which indicates that from the evidence led by the witnesses at the inquiry under Section 202 Cr.P.C., a prima facie case was made out to proceed against the accused.

8. From the above, it appears that in entertaining the claim of the petitioner this Court would have to look into disputed questions of facts which cannot be done in a proceeding under Section 482 Cr.P.C. Whether the petitioner had exceeded his jurisdiction or whether sanction under Section 197 Cr.P.C. was required in the facts and the circumstances of the case can only be proved by cogent evidence at a full dressed trial.

9. In the facts and the circumstances of the case, I am not inclined to interfere with the impugned order. Accordingly, the application is dismissed.