Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 26490 of 2012 ====================================================== Rakesh Kumar Jha, S/O Dr. Shiv Kumar Jha, Residents of Village - Diwra, Police Station- Nauhatta, District - Saharsa .... .... Petitioner/s 1. The State of Bihar 2. Ram Parichhan Ram, S/O Shree Chhotu Ram, Resident of Village - Versus Ganauli, Police Station - Andhratharhi, District - Madhubani .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Sri Chittaranjan Sinha, Sr. Advocate Mr. Ajay Kumar, Advocate For the Informant : Mr. Manoj Kumar Jha, Advocate For the State : Mr. A. Rahman, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 6 01.11.2013 This is a petition for quashing the order dated 05.08.2010 passed by the Additional Chief Judicial Magistrate, Jhanjharpur, Madhubani in Andhratharhi P.S. Case No. 50 of 2007 corresponding to G.R. No. 291 of 2007 by which he has ordered to issue process after taking cognizance for offence under Sections 323, 504 of the Indian Penal Code as well as Section 3(1)(x) (2)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter to be referred as the “SC/ST” Act). The prosecution case as alleged in the written report by Ram Parichhan Ram, opposite party no. 2 is that on 29.03.2007 at about 2:30 P.M. he came to the Block Office and learnt that the appointment of his wife, Munni Devi, working as teacher in Gram Panchyat Raj, Gangdwar, has been terminated by the Block Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 2 Development Officer. He met with the Block Development Officer, Rakesh Kumar Jha. It is alleged that he wanted to know about the termination of his wife to fill up a form under the Right to Information Act. The Block Development Officer was reluctant to disclose. It is further alleged that the informant asked for the acknowledgement receipt of the form then the Block Development Officer abused him by calling his caste name. On protest for abuses Block Development Officer further lost tamper and assaulted the informant by slaps in the chamber. It is also alleged that after assault the informant came out of the official chamber of the B.D.O. Thereafter the Block Development Officer came out from his official chamber on the Varamda and snatched his mobile and again assaulted him by his slipper abusing him by caste name and he got injury on his ear and he lost his power of hearing. It is further alleged that on his cry the Assistant, Gulab Jha run and saved him. On the complaint made to the Officer-in-Charge,
Legal Reasoning
Andhratharhi, First information Report was lodged for the offence under Sections 323, 379 of the Indian Penal Code as well as Section 3(ii)(x) of the SC/ST Act. The occurrence alleged to be at 2:30 P.M. on 29.03.2007. The First Information Report was lodged on 29.03.2007 at about 3:00 P.M. On the written report of Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 3 opposite party no. 2 Andhratharhi Police Station Case No. 50 of 2007 dated 29.03.2007 was registered and O/C of police station himself assumed the investigation. The police after investigation submitted charge-sheet against the petitioner vide charge-sheet no. 54 of 2009 dated 23.07.2009 for offence under Sections 323, 504 of the Indian Penal Code and Sections 3(1)(x)(2)(ii) of the SC/ST Act and after submission of the charge-sheet cognizance was taken by the Additional Chief Judicial Magistrate, Jhanjharpur on 05.08.2010 which is under challenge by the petitioner in this case. Learned counsel for the petitioner, however, contended that the allegations made in the First Information Report are inherently improbable and manifestly absurd and the allegations suffered from malice to wreak vengeance. It was the informant who had unauthorizedly entered into the chamber of the petitioner and obstructed the official work, behaved in an unruly manner using physical force and snatched the golden ring for which a written report has been submitted by the petitioner against the informant, opposite party no. 2 bearing Andhratharhi P.S. Case No. 51 of 2007 whereas the allegation made by the opposite party no. 2 in Andhratharhi P.S. Case No. 50 of 2007 is the counter blast of the occurrence in view of the fact that the Block Development Officer has terminated the appointment of the wife of the Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 4 informant and the case has been lodged by the petitioner subsequent to the case lodged by opposite party no. 2 for the reason that Officer-in-Charge, Andhratharhi had personnel grudge against the petitioner that during election in connection with a firing, a report was called for from the court of Judicial Magistrate-1st Class, Jhanjharpur from S.D.O. and the S.D.O. has submitted a report that the allegations made against Rakesh Kumar Jha, Block Development Officer is false with a note that Ram Narayan Suman, I.O. filed complaint against him in retaliation and hence, Ram Narayan Suman, the I.O. had grievance against the petitioner so he lodged the case of the petitioner after instituting the case of opposite party no. 2.
Legal Reasoning
Learned counsel for the petitioner, further, contended that the case was lodged in the year 2007 under the SC/ST Act but the investigation has been conducted by the Sub-Inspector of Police whereas the case under the SC/ST Act is required to be investigated by an Officer of the Rank of Deputy Superintendent of Police and hence, since the investigation has been conducted and charge-sheet submitted by Sub-Inspector of Police, the cognizance taken under Section 3 of the SC/ST Act on the basis of investigation conducted and charge-sheet submitted by S.I. is suffered from infirmity and is not sustainable. It has further been Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 5 contended that the Sub-Inspector of Police or Inspector of Police has been empowered to investigate the cases of SC/ST Act w.e.f. 09.08.2008, the date of the publication of the notification dated 3rd June, 2002 in the official gazette. Hence, it is submitted that since the cognizance taken on the basis of the investigation made during the period prior from the date of initiation of case on 29.03.2007 to 09.08.2008 by an officer of the rank of Sub-Inspector who had no jurisdiction to conduct the investigation hence, if the part of the investigation prior to 09.08.2008 has been done by Sub-Inspector, an authority who is not authorized to investigate the offence then the order taking cognizance under Section 3(1)(x)2(ii) of the SC/ST Act on the basis of such investigation is not sustainable and required to be quashed. It has further been contended that if the order taking cognizance for offence under Section 3(1)(x)2(ii) of the SC/ST Act is quashed then the cognizance taken under Section 323 and 504 of the Indian Penal Code is suffered from limitation as in such case limitation is one year from the date of occurrence whereas date of occurrence is 29.03.2007 and cognizance taken on 05.08.2010 much after one year of the occurrence or from the date of submission of charge-sheet dated 23.07.2009. Learned counsel for the informant-opposite party no. 2 submitted that the First Information Report was lodged on the Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 6 date of occurrence i.e. 29.03.2007. The investigation proceeded by S.I. of Police. However, the Sub-Inspector of Police has been authorized by the notification dated 03.06.2002 in view of Section 9 of the SC/ST Act and Rule 7 of the SC/ST Rules, 1995 and is effective from 09.08.2008 the date of publication of the notification in official gazette but even if the notification effective from 09.08.2008 the charge-sheet has been submitted after 09.08.2008 and hence, the part of the investigation having been done by S.I. of Police after 09.08.2008 is valid and submission of charge-sheet on 23.07.2009 after 09.08.2008 is valid, so the cognizance taken does not suffer from any infirmity. It is further contended that the limitation runs from the date of filing of the complaint and not from the date of taking cognizance and hence, is not barred by limitation and has relied upon a decision in the case of Japani Sahoo v. Chandra Sekhar Mohanty reported in A.I.R. 2007 S.C. 2762 and in the case of Bharat Damodar Kale And Another Versus State of A.P. reported in (2003) 8 SCC 559. It is further contended that the order taking cognizance is neither suffered from malice nor the allegations are absurd or improbable. On respective submissions of the parties, the first question for consideration is whether the allegations made in the Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 7 First Information Report is suffered from absurdity and improbability and the criminal prosecution lodged by the informant is suffered from malice and the case has been filed as counter blast to the action taken by the petitioner to wreak vengeance to spit on the face while in discharge of his official duty. The second question for consideration is whether the order taking cognizance for the offence under Section 3(1)(x)2(ii) of the SC/ST Act is suffered from infirmities and required to be quashed on the ground that the order taking cognizance is on the basis of charge-sheet where the part of investigation conducted by the police officer of the rank who was not authorized to investigate the case for the offence under section 3(1)(x) of the SC/ST Act from the date of occurrence i.e. 29.03.2007 till 09.08.2008, the date of publication of notification in official gazette, giving jurisdiction to the S.I. of Police to investigate the case. The third question for consideration is whether the order taking cognizance under Sections 323 and 504 of the Indian Penal Code is suffered from limitation, if the First Information Report lodged on the date of occurrence and required to be quashed. Now I proceed to consider the second question. Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 8 However, coming to the facts and circumstances of the case, at hand, the occurrence took place on 29.03.2007 i.e. prior to 09.08.2008, the investigation was conducted by S.I. of Police an officer of the rank lower than Deputy Superintendent of Police and hence, the investigation of the case during the period from 29.03.2007 to 09.08.2008 not by a competent authority as per according to the SC/ST Act. However, the Sub-Inspector of Police got power to investigate the case on and after 09.08.2008 and hence, the subsequent investigation after 09.08.2008 by the rank of an Officer of Sub-Inspector of Police who is authorized to conduct the investigation. Admittedly, the investigation from the date of occurrence when First Information Report was lodged and investigation from 29.03.2007 to 09.08.2008 has been conducted by an officer of the rank of S.I. of Police who is below the rank of Police Officer i.e. Dy.S.P. who was authorized to conduct the investigation hence, the charge sheet has been submitted on the basis of the investigation from 29.03.2007 to the date of submission of charge in the year 2009 and hence, the charge sheet filed on the basis of part of investigation done from date of occurrence till the date of publication of notification in gazette on 09.08.2008 is by an officer below the rank of Dy.S.P. and cognizance on the basis of charge-sheet submitted on the basis of Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 9 part of investigation conducted by an Officer below in rank than officer authorized by the SC/ST Act and hence, order taking cognizance under Section 3 (i)(x)2(ii) of the SC/ST is not sustainable and this view finds support in the case of Pramod Kumar Singh vs. The State of Bihar reported in 2012 (3) PLJR 65 wherein it has been held that the cognizance taken on the basis of the charge-sheet submitted and part of investigation conducted by a police officer of a rank not authorized to conduct the investigation, is not sustainable in the eye of law. Hence, the order taking cognizance for the offence under Section 3(i)(x) SCST Act is not sustainable in law and is hereby set aside. The first question raised for consideration is that the allegations made is inherently improbable, manifestly absurd and suffered from malice to wreak vengeance. It has been asserted that on the fair look of the case and the First Information Report indicates that the allegations are absurd, tainted with mala fide and act alleged was done in discharge of the duty and the complaint filed by opposite party no. 2 is with ulterior motive only the counter blast of the action taken in termination of the appointment of the wife of the opposite party no. 2 and his action to enter into the official chamber of the petitioner and obstruct in official duty of the petitioner and consequent filing of complaint/First Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 10 Information Report with regard to occurrence while petitioner was discharging his official duty in his chamber. Hence, going through the fact of the case, it is apparent that it is a case of counter blast to the action taken by the petitioner. The prosecution as alleged by the informant, Ram Parichhan Ram, that on 29.03.2007 at 2:30 P.M. he came to the Block Office and learnt that appointment of his wife, Munni Devi, working as teacher in Gram Panchayat Raj, Gangdwar has been terminated by the Block Development Officer. He further alleged that he met with the Block Development Officer, filled up form properly under the Right to Information Act for getting the information about termination of appointment of his wife as teacher but the Block Development Officer shows his reluctance in disclosing the information and asked the informant to flee away. He further stated that he remained present standing there and thereafter the informant asked for the receipt of the form under the Right to Information Act and thereafter it is alleged that the petitioner abused by calling his caste name in his chamber. It is further alleged that the petitioner gave 3-4 slaps in the chamber. He further alleged that he came out from the chamber and was making call from his mobile phone in the Varamdah out side the chamber of petitioner and then the petitioner came out from his chamber and snatched his mobile and assaulted him by slipper and Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 11 calling his caste name. However, the allegations made in the complaint itself on the face value shows the absurdity and the malice both. It is quite improbable that a person of rank of BDO will himself assault first in chamber and then came out from his chamber and assaulted on Varamdah and abused calling his caste name. The case of the informant itself shows that the petitioner had cancelled the appointment of the wife of the informant and the informant reached the Block Office and entered into the chamber of BDO for filling up form and demanding information and acknowledgement receipt from the BDO is absurd on face of allegation itself. However, it has been alleged that the informant went in the chamber for getting information under the Right to Information Act. However, it is matter of common experience that for getting information under the Right to Information Act one has to fill up a form and has to apply for the information under the Right to Information Act. The form is received by some clerk. An Officer of the rank of the BDO is not required to receive the forms filled up for information under the Right to Information Act. It is the normal working of any office that a petition of the Right to Information Act is filed giving the questions or the information required to be obtained and thereafter on receiving the form the information is provided in writing within a limited period of time Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 12 but information is not provided instantaneously. Hence, the allegation that the complainant entered into the chamber of the Block Development Officer and after filling up the form he wanted to know the information about the matter itself indicates the allegation is absurd and no prudent man will believe the story. Further the allegations that he entered into the chamber and wanted to know the information and this allegation under the facts and circumstances itself indicate that the purpose was not to get information but something otherwise. It is further alleged that in the chamber he asked for a receipt from the Block Development Officer that itself again an absurdity that Block Development Officer is not required to receive the form under the Right to Information Act and further allegation that he was abused with the caste name and assaulted in the chamber is another absurdity rather amounting to obstruction in official duty. The further allegation is that after the abuse and assault he came out weepingly on Varamdah and while trying to contact someone on mobile then again the Block Development Officer came out of the Chamber on Varamdah and abused by caste name and assaulted by slipper. Hence, the act alleged again is highly improbable and manifestly absurd that officer of the rank of BDO will assault and abuse a person while on his duty in chamber and will come out Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 13 from his chamber to assault and abuse in Varamdah. The allegation itself appears to be highly improbable and manifestly absurd that no prudent man will believe the allegation made in the complaint. However, the act alleged for assault and abuse in Varamdah is apparent, appears to have been alleged to attract Section 3(1)(x) of the SC/ST Act so that plea be taken that act done in full public view and to counter an argument that act of abuse in chamber calling caste name does not attract Section 3(x) of the SC/ST Act as was not in full public view. Hence, taking into consideration the allegations made in the First Information Report apparently appears to be absurd and inherently improbable and manifestly absurd and further the action alleged to have been taken in discharge of his official duty and the complaint filed is apparent on the face of it is a counter blast to the action taken by him in his official capacity and the fact shows that the complaint has been filed to rope the petitioner on account of the action taken by him. Hence, having regard to the fact and the allegations made by the informant suffers from the absurdity and the fact shows that the complaint was filed afterthought to rope in the case on account of the action taken by the petitioner against the wife of the informant and further the fact that the informant entered into Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 14 the chamber, obstructed the petitioner in discharge of his duty, misbehaved for which a case was lodged by the petitioner and an action was taken by the opposite party no. 2 in filing the case which is a counter blast to lodging of the First Information Report by the petitioner. Hence, the case covered under category 4 and 7 of Bhajan Lal’s Case reported in 1992 Supp (1) SCC 335 and hence, the order taking cognizance and the criminal prosecution is an abuse of the process of the court. However, it is well settled that while exercising the inherent jurisdiction of the High Court under Section 482 Cr.P.C., the High Court is required to use inherent power sparingly in the rarest of the rare cases after going through the entire conspectus. However, power under Section 482 Cr.P.C. has been given to do ex-debito justiciae and if any injustice and abuse of the process of the court is found then the High Court is bound to exercise inherent jurisdiction. In the decision reported in 2011 PLJR SC 23, it has been observed that Section 482 Cr.P.C. is a guarantee against injustice whereunder the High Court has tremendous power to pass any order in the interest of justice where allegations are absurd that no reasonable man would accept the same. The High Court cannot express its inability to do anything in the matter. Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 15 However, going into the face of the complaint if the allegations made on the complaint itself on the face value indicating that the allegations are inherently improbable and manifestly absurd and further the fact itself shows that the allegations made are suffered from malice and is counter blast of the action taken by the petitioner then it is the bounden duty of the Court to quash the order taking cognizance and the criminal prosecution. The third question for consideration is that when the order taking cognizance under Section 3(1)(x)2(ii) of the SC/ST Act is quashed then the limitation for offence under Sections 323 and 540 of the Indian Penal Code is one year in view of Section 468 of the Cr.P.C. However, it is asserted that the limitation shall run from the date of occurrence but the question is raised whether the limitation shall be counted from the date of occurrence till the date of taking cognizance or the date of submission of the charge sheet or the date of filing of the First Information Report. Reliance has been placed in the case of Bharat Damodar Kale (supra) and in the case of Japani Sahoo (supra) where it has been held that the “limitation will run from the date of filing of complaint or from the date of the limitation of proceeding.” However, it is pertinent to mention that the date of Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 16 occurrence is stated to be on 29.03.2007, the charge-sheet submitted on 23.07.2009 and cognizance has been taken on 05.08.2010 and hence, it is asserted that the date of filing of the charge-sheet is more than one year from the date of occurrence. However, learned counsel for the informant relied upon a decision in the case of Bharat Damodar Kale (supra) and in the case of Japani Sahoo (supra) where it has held that the limitation shall not run from the date of taking cognizance but limitation shall run from “the date of filing of the complaint or initiation of the criminal proceeding.” However, the argument advanced by the learned counsel for the petitioner is that the case relates to a police case and not complaint case so the expression date of filing of complaint is irrelevant and word initiation of criminal proceeding as per Chapter XIV of the Code of Criminal Procedure having a heading “conditions requisite for initiation of proceeding” is relevant. The proceeding in Criminal Procedure Code is required to be initiated under Section 190(1)(b) Cr.P.C. upon a police report and unless a police report is submitted under Section 173 Cr.P.C. the Court is unable to proceed with the case and hence, the word “initiation of the proceeding” mentioned in the case of Bharat Damodar Kale (supra) and in the case of Japani Sahoo Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 17 (supra) has relevance from the day on which the charge-sheet has been submitted by the police in a police case as the Court can take cognizance only after filing of the charge-sheet. It is further submitted that in the case of Bharat Damodar Kale (supra) and in the case of Japani Sahoo (supra) on the principle “actus curiae neminem gravabit” which means an act of Court shall prejudice none and a delay on the part of the court no party should suffer. However, the moment a complaint case is filed the court can take cognizance immediately on filing of the complaint as when the Court applied its mind then cognizance can be said to have been taken but in case of police case unless the charge-sheet is submitted under Section 173(2) Cr.P.C., the court cannot take cognizance and hence, at best the word used by the Supreme Court that filing of the complaint or initiation of criminal proceeding should be interpreted in police case as the date when the charge- sheet is submitted. However, the learned counsel for the opposite party has submitted that after lodging of the First Information Report the Magistrate is required to send a copy of the First Information Report and the fardbeyan under Section 157 of the Cr.P.C. to the Magistrate who is required to take cognizance of the offence and hence, the report sent by the police to Magistrate under Section Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 18 157 Cr.P.C. may deem to be the date as the initiation of the criminal proceeding. However, point raised is not res integra and in the case of Kamaljeet Ranjan vs. The State of Bihar & Ors. reported in 2012(4) PLJR 293 where a view has been taken that in police case the limitation shall run from the date of filing of the complaint or the date on which the First Information Report has been lodged and hence, matter has been settled by the Single Judge that date of initiation of the proceeding is the date of the filing of the First Information Report. However, it has been asserted that the view expressed by the Single Judge does not appear to be correct but the judicial discipline suggests that the decision of a Single Judge is binding on a Single Judge. Though the argument advanced by the learned counsel for the petitioner is based on sound reasoning but the view expresses by the Single Judge is binding unless the point in issue decided by a Larger Bench and the matter has been decided on the two issues as discussed above. Hence, having regard to the facts and circumstances of the case, since the order taking cognizance under Section 3(1)(x)2(ii) of the SC/ST Act suffers from the defective investigation by a competent officer and hence, the order taking Patna High Court Cr.Misc. No.26490 of 2012 (7) dt.01-11-2013 19 cognizance for offence under Section 3(1)(x)2(ii) of the SC/ST Act is hereby quashed and further the entire criminal prosecution suffers from absurdity as well as malice to wreak vengeance and the case covered the categories 5 and 7 of Bhajan Lal’s Case reported in 1992 Supp (1) SCC 335 : AIR 1992 SC 526. Hence, the order taking cognizance and criminal prosecution is hereby quashed and petition is allowed. Kundan/- (Gopal Prasad, J.)