Jharkhand High Court

Ramdayal Ray vs The State Of Jharkhand on 16 June, 2023

      IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                              Cr.M.P. No. 707 of 2017
      Ramdayal Ray                                      .....   ...     Petitioner
                                    with
                              Cr.M.P. No. 2500 of 2015
      1. Timbu Oraon
      2. Mir Jubair Hussain
      3. Mritunjay Kumar                                .....   ...     Petitioners
                                Versus
      1. The State of Jharkhand.
      2. Rameshwar Prasad Agrawal                       .....   ...     Opposite Parties
                                                                      [in both cases]
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Sunil Kumar, Advocate.

      For the State       :        Mr. Sardhu Mahto, A.P.P.
                          :        Mr. Fahad Allam, A.P.P.
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14/ 16.06.2023 In both the cases common case and the order taking cognizance are under challenge that's why by the earlier order, both the petitions were directed to be tagged together.

2. In Cr.M.P. No. 2500 of 2015, notice upon O.P. No. 2 has already been effected and both the cases arise out of the same FIR and thereafter the matter was adjourned on several times, however, O.P. No. 2 has not appeared. As such, it appears that the O.P. No. 2 has lost interest in the matter, that's why both these petitions are being heard together in absence of the O.P. No. 2.

3. Heard Mr. Sunil Kumar, learned counsel appearing for the petitioners in both cases and Mr. Sardhu Mahto and Mr. Fahad Allam, learned A.P.Ps. for the State in respective cases.

4. In both these petitions prayers have been made for quashing of the entire criminal proceedings including the order taking cognizance dated 21.11.2013, by which, cognizance for the offences under Sections 354 and 306/34 of the Indian Penal Code has been taken against the petitioners, in connection with Rail Barkakana P.S. Case No. 21 of 2008 corresponding to G.R. No. 1374 of 2008, pending in the court of learned Railway Judicial Magistrate, Palamau at Daltonganj.

5. The First Information Report was lodged alleging therein that the informant who is the elder brother of the deceased Sanjay Prasad alleged that on 16.06.08 his younger brother (deceased) along with his wife reached Daltonganj at night from his in laws house in Ramgarh.

It is further alleged that in the night all of sudden he fell ill

and complaint of headache and pain in his body and the next morning ie. on 17.6.08 he was taken to Sadar Hospital, Daltonganj for treatment but his condition kept on deterioting and he finally died at 3.30 p.m. on the same day.

It is further alleged that the wife of deceased had informed that on 16.06.08 around 7.30 to 8.00 p.m. while the train on which they were traveling was at Rai station the Jawans of Railway police came and assaulted her husband on his back, head and chest which resulted in injuries over his eye. The informant thus concluded that due to the assault his brother had died and that a medical board be constituted to ascertain against his death.

6. Mr. Sunil Kumar, learned counsel appearing for the petitioners in both cases submits that the petitioners are the constable in the Railway Protection Force. He submits that all these petitioners are the members of Force, as defined under Section 2 of the Railway Protection Force Act, 1957 and they are protected under Section 20 of the said Act. He further submits that in course of performing their legal duties with respect to certain obstruction in the Railway track, they have been falsely implicated in the case. He further submits that the entire prosecution is malafidely instituted against the petitioners, who happens to be the members of Force.

7. Learned A.P.Ps. appearing for the State in respective cases jointly submit that learned court has rightly taken the cognizance and this court may not interfere in these matters at this stage.

8. In view of the above submissions of the parties, the court has gone through the entire records and finds that it is an admitted fact that informant was the brother of the deceased. Section 197 of the Cr.P.C in connection with police officer has been considered by the Hon'ble Supreme Court in case of D. Devaraja v. Owais Sabeer Hussain, reported in (2020) 7 SCC 695. Paragraph no.30 and 49 of the said judgment are quoted hereinbelow:-

"30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey

v. H.C. Bhari : (AIR p. 48, para 15) "15. ... Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. ...

There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction."

49. Citing the judgment of this Court in State of Haryana v. Bhajan Lal, Mr Poovayya argued that where a criminal proceeding is manifestly prompted by mala fides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 482 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of court and/or to secure the ends of justice."

9. Further section 20 of the Railway Protection Force Act, 1957 also protects the petitioners who happens to be members of the force. For ready reference, section 20 of Railway Protection Force Act, 1957 is quoted below:-

"20. Protection of acts of members of the Force:-

(1) Xxxxxxxxxxx (2) Xxxxxxxxxx (3) Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by or in pursuance of any provisions of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and, of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding"

10. Identical case has been decided by the coordinate Bench of this Court in Cr.Misc.petition No.1267 of 2009 wherein at paragraph no.8, the said section was again interpreted, which is quoted below:-

"8. A bare perusal of the aforesaid provision clearly shows that the provision is mandatory in nature and no action could have been initiated against the petitioners without fulfilling the requirements thereof. The learned counsel has drawn the attention towards the decision of the Hon'ble Patna High Court in the case of Naresh Mohan Prasad and Ors.

v. State of Bihar and Another, 2000 Cr.L.J.4224 and in the case of D.S.Bhoria and Another v. N. Singh, 1970 Cri. L.J.642, wherein the Hon'ble Patna High Court has held that the prosecution against member of a railway protection force cannot be continued without the fulfillment of the mandatory provision of section 20(3) of the Act, failing which, the prosecution were quashed by the Patna High Court. Learned counsel has also submitted that once there is a mandatory proviso under the Special Statute, the general Statute is to give its way and the procedure provided in the Special Statute has to be followed. In this connection leraned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in the case of Raj Kapoor v. Laxman, (1980) 2 SCC 175, as also of this Court in Bhotna Mahto v. The State of Jharkhand, 2009 (2) JLJR 258. Placing reliance of these decisions learned counsel for the petitioners has submitted that criminal proceeding against these petitioners cannot be continued and the same is fit to be quashed."

11. Considering the above and also considering Section 20 of the Railway Protection Force Act, 1957 and requirement of section 20(3) of the said Act, clearly lays down that no proceeding, criminal or civil, can be lawfully brought against any member of the force without complying its mandatory requirement, which had to be followed, failing which, cognizance could not have been taken by the learned court.

12. For the aforesaid reasons, to allow the present proceeding to continue further against the petitioners will amount to abuse of the process of law. Accordingly the entire criminal proceedings including the order taking cognizance dated 21.11.2013, by which cognizance for the offences under Sections 354 and 306/34 of the Indian Penal Code has been taken against the petitioners, in connection with Rail Barkakana P.S. Case No. 21 of 2008 corresponding to G.R. No. 1374 of 2008, pending in the court of learned Railway Judicial Magistrate, Palamau at Daltonganj, in both the cases, are hereby, quashed.