Jharkhand High Court

Jagat Narayan Prasad vs The State Of Jharkhand on 23 March, 2021

                                               1                      Cr. M.P. No. 148 of 2011


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr. M.P. No. 148 of 2011
             Jagat Narayan Prasad, S/o Sri Jagdish Prasad, resident of village- Lodipur,
             P.O. Dhangawan, P.S. Ekangar Sarai, District- Nalanda, at present posted as
             Sub Divisional Magistrate, Lohardaga, P.O., P.S. & District- Lohardaga
                                                                    ... Petitioner
                                          -Versus-
             1. The State of Jharkhand
             2. Pintu Kumar, S/o Late Arjun Prasad Kapsime, resident of Ward No.11,
                  Jhumri Telaiya, P.S. Telaiya, District- Kodarma   ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate For the Opposite Party-State : Mr. Shailesh Kumar Sinha, A.P.P. For Opposite Party No.2 : Mr. Amarendra Kumar, Advocate

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06/23.03.2021. Heard Mr. P.P.N. Roy, learned Senior counsel for the petitioner,

Mr. Shailesh Kumar Sinha, learned A.P.P. appearing for the opposite party-

State and Mr. Amarendra Kumar, learned counsel for opposite party no.2.

2. This criminal miscellaneous petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into account

the situation arising due to COVID-19 pandemic. None of the parties have

complained about any technical snag of audio-video and with their consent

this matter has been heard.

3. The petitioner has filed this quashing application for quashing the

order taking cognizance dated 07.09.2010 passed by the learned Chief

Judicial Magistrate, Kodarma in Complaint Case No.327 of 2009, whereby,

the learned Chief Judicial Magistrate has taken cognizance of the offence

under Sections 304-A of the Indian Penal Code against the petitioner.

4. The lodging of the said complaint case was on the facts that the

contractor Suresh Prasad Yadav had taken contract work for construction of

one drain on the road near Shitla Mata Mandir at Devi Mandap Road and it

has been alleged in the complaint case that it was responsibility of all the

accused persons to look after the work of the drainage. It has been alleged

in the complaint case that accused Suresh Prasad Yadav with the consent of

all the accused persons had cut road and after digging on the middle road,

the accused persons had not made any arrangement of security nor any

barrier was made on the road. It has also been alleged in the complaint

case that there was no arrangement of light near that place and entire

responsibility of the security was on the accused persons. It has also been

alleged in the complaint case that in the night on 03.06.2009, the father of

the complainant Arjun Prasad Kapsime was going on a cycle to attend

marriage ceremony by that road and he fell down on that pit, which was

dug by the accused persons, due to which the father of the complainant

sustained injury on his head and he died at that place. At the relevant time,

the petitioner was Special Officer of Jhumri Telaiya Municipality. In the

complaint case, the learned court below has taken cognizance under Section

304-A I.P.C. against the petitioner and three other accused persons vide

order dated 07.09.2010. Aggrieved with this, the petitioner has filed this

quashing application.

5. Mr. P.P.N. Roy, learned Senior counsel appearing for the petitioner

assailed the cognizance order dated 07.09.2010 on the ground that in the

entire order, there is no discussion about the petitioner as to how the

petitioner has been implicated by the complainant. He further submits that

none of the witnesses, who have stated nothing about the petitioner, were

examined by the learned court below before taking cognizance. He also

submits that the petitioner is a Government servant and he is protected

under Section 197 Cr.P.C. To buttress his argument, he relied upon the

judgment rendered by the Hon'ble Supreme Court in the case of State of

Orissa and Others v. Ganesh Chandra Jew , reported in AIR 2004 SC

2179.

6. Paragraphs 10, 11 and 12 of the said judgment are quoted herein

below:

"10. In Padala Veera Reddy v. State of A. P. and others (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

11. In State of U. P. v. Ashok Kumar Srivastava (1992 Cri LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

12. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as

of right to be acquitted."

7. Learned Senior counsel for the petitioner further submits that in the

order taking cognizance, it is also not reflected as to how the petitioner is

involved in such crime as the petitioner was the Special Officer of Jhumri

Telaiya Municipality. He further submits that the cognizance order is not in

terms of the well settled procedure prescribed by this Court in the case of

Amresh Kumar Dhiraj & Others v. State of Jharkhand & Another ,

reported in 2020 (1) JLJR (Jhr).

8. Paragraph 22 of the said judgment is quoted herein below:

"22. The order taking cognizance under Section 190 Cr.P.C. and order issuing process under Section 204 Cr.P.C., can very well a composite order but as observed, the application of mind would be different in both cases. This application of mind must be reflected in the order itself. The order should not be mechanical. Magistrate has to mention at least that there are sufficient materials to proceed against the persons and what are the primafacie materials to proceed against them. He need not pass a detail judgment evaluating the materials, which are before him. The detail reasons as to why he is taking cognizance or issuing process are not to be mentioned but at least what are the bare minimum prima- facie materials against the accused-petitioners should be mentioned in the order issuing summon and prima facie what offence is alleged, in the order taking cognizance."

9. Per contra, Mr. Amarendra Kumar, learned counsel for opposite party

no.2 submits that the Magistrate has rightly taken the cognizance under

Section 304-A I.P.C. He further submits that opposite party no.2 is an

illiterate person and he was not knowing about the law and it was not in his

domain to obtain sanction under Section 197 Cr.P.C. He also submits that so

far as Section 197 Cr.P.C. is concerned, that is required to be considered in

terms of stage by stage of the proceeding and that can be obtained at any

time. He relied upon the judgment rendered by the Hon'ble Supreme Court

in the case of Amal Kumar Jha v. State of Chhattisgarh and another ,

reported in (2016) 6 SCC 734.

10. Paragraph 6 of the said judgment is quoted herein below:

"6. This Court in Matajog Dobey v. H.C. Bharti has also considered when sanction is necessary. This Court has laid down thus:

"20. Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram case and also in Sarjoo Prasad v. Emperor. Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.

But a careful perusal of the later parts of their judgments shows that they did not intent to lay down any such proposition. Sulaiman, J. refers (at FCR pp.

179-80) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words: (Hori Ram case4, SCC OnLine FC) '... Of course, if the case as put forward fails, or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground.' The other learned Judge also states at FCR p. 185: (SCC OnLine FC) '... At this stage, we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him "in the execution of his duty".' It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."

11. Learned counsel for opposite party no.2 further submits that there is

material on the record and that is why the cognizance has been taken

against the petitioner.

12. Mr. Shailesh Kumar Sinha, learned A.P.P. appearing for the opposite

party-State has supported the argument of Mr. Amarendra Kumar, who

argued on behalf of opposite party no.2.

13. On the premises of the above facts and the submissions of the

learned counsel for the parties, the Court is required to examine the scope

of Section 197 Cr.P.C. For the sake of brevity, Section 197 Cr.P.C. is quoted

herein below:

"197. Prosecution of Judges and public servants. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during

the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

14. It is an admitted fact that the petitioner was the Special Officer of

Jhumri Telaiya Municipality. There is allegation in the complaint case that

the petitioner being a Government servant has not discharged his duty

properly. On the face of the complaint, it transpires that the case was filed

while the petitioner was discharging his duty in the official capacity. It is

well settled that if a person is discharging official duty, sanction is required

under Section 197 Cr.P.C. Apart from the judgments relied by Mr. Roy,

learned Senior counsel for the petitioner in the case of State of Orissa and

Others v. Ganesh Chandra Jew (supra) and Amresh Kumar Dhiraj & Others

v. State of Jharkhand & Another (supra), the Hon'ble Supreme Court has

recently considered Section 197 Cr.P.C. in the case of D. Devaraja v.

Owais Sabeer Hussain, reported in (2020) 7 SCC 695. Paragraphs 74

and 77 of the said judgment are quoted herein below:

"74. It is well settled that an application under Section 4 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the

complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 4 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.

77. In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 4 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognised principle of law that sanction was a legal requirement which empowers the court to take cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 2 of the Criminal Procedure Code to seek discharge."

15. So far as the judgment relied by the learned counsel for opposite

party no.2 is concerned, that judgment was on the point of sanction,

wherein, it has been described that at any stage of the proceeding, sanction

can be obtained. Here in the case in hand, even prima facie case is not

made out against the petitioner.

16. In the order taking cognizance, there is no discussion as to what

material is against the petitioner. Only on solemn statement of the

complainant, cognizance has been taken against the petitioner. There is no

mention of any witnesses as to what they have stated against the petitioner.

It is an admitted fact that the petitioner was the Special Officer of Jhumri

Telaiya Municipality and for not discharging the official duty, the said

complaint case has been filed. In view of the judgments delivered by the