Jharkhand High Court
Amit Kumar @ Ameet Kumar vs The State Of Jharkhand on 4 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
----
Cr.M.P. No. 579 of 2016
----
Amit Kumar @ Ameet Kumar .... Petitioner
-- Versus --
1.The State of Jharkhand
2.Sri Krishna Pradhan .... Opposite Parties
With
Cr.M.P. No. 3385 of 2013
----
1.Sri Krishna Pradhan
2.Ran Vijay Pradhan @ Kallu
3.Digvijay Pradhan
4.Ravindra Pradhan
5.Mahavir Pradhan @ Veer Vijay Pradhan .... Petitioners
-- Versus --
1.The State of Jharkhand
2.Umesh Rajak .... Opposite Parties
With
Cr.M.P. No. 1008 of 2016
----
1.Ms. Nisha Murmu
2.Umesh Rajak
3.Ms. Aradhana Singh
4.Shailesh Kumar Gupta .... Petitioners
-- Versus --
1.The State of Jharkhand
2.Sri Krishna Pradhan .... Opposite Parties
With
----
1.Anuradh Sharma @ Anuradha Sharma
2.Rajiv Kumar Sharma @ Rajeev
3.Pankaj Kumar Sharma @ Pankaj
4.Rishikesh Kumar Sharma @ Rishikesh .... Petitioners
-- Versus --
1.The State of Jharkhand
2.Sri Krishna Pradhan .... Opposite Parties
----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioners :- Mr. R.S. Mazumdar, Senior Advocate
Mr. Nishant Roy, Advocate
[Cr.M.P. No. 579 of 2016, Cr.M.P. No. 1008 of 2016 &
Cr.M.P. No. 1011 of 2016]
Mr. Sumeet Gadodia, Advocate
[Cr.M.P. No. 3385 of 2013]
For the Opp.Party No.2 :- Mr. Sumeet Gadodia, Advocate
[Cr.M.P. No. 579 of 2016, Cr.M.P. No. 1008 of 2016 &
Cr.M.P. No. 1011 of 2016]
Mr. Sahil, Advocate
For the State :- Mr. Sanjay Kumar Srivastava, Advocate
[Cr.M.P. No. 1011 of 2016]
Mr. Pankaj Kumar Mishra, Advocate
[Cr.M.P. No. 579 of 2016]
Mrs. Nehala Sharmin, Advocate
[Cr.M.P. No. 3385 of 2013 & Cr.M.P. No. 1008 of 2016]
----
43/04.01.2024 Heard Mr. R.S. Mazumdar, the learned Senior counsel
assisted by Mr. Nishant Roy, the learned vice counsel appearing on behalf
of the petitioners in Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 &
Cr.M.P. No.1011 of 2016, Mr. Sumeet Gadodia, the learned counsel
appearing on behalf of the petitioners in Cr.M.P. No.3385 of 2013 and on
behalf of the Opposite Party No.2 in Cr.M.P. No.579 of 2016, Cr.M.P.
No.1008 of 2016 & Cr.M.P. No.1011 of 2016, Mr. Sahil, the learned
counsel appearing on behalf of the Opposite Party No.2 in Cr.M.P.
No.3385 of 2013 and Mr. Sanjay Kumar Srivastava, Mr. Pankaj Kumar
Mishra as well as Mrs. Nehala Sharmin, the learned counsels appearing
on behalf of the respondent-State in Cr.M.P. No.1011 of 2016, Cr.M.P.
No.579 of 2016 and Cr.M.P. No.3385 of 2013 & Cr.M.P. No.1008 of 2016,
respectively.
2. Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and Cr.M.P.
No.1011 of 2016- in all these three cases, the common complaint case is
under challenge as well as the order taking cognizance and in Cr.M.P.
No.3385 of 2013 there is F.I.R which is the consequence of the complaint
case which are the subject matter in all three cases and in view of that,
all these petitions have been heard together with consent of the parties.
3. In Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and
Cr.M.P. No.1011 of 2016 the prayer is made for quashing of the entire
criminal proceeding as well as the order dated 09.10.2015 in connection
with C.P.Case No.C-2954 of 2013, pending in the court of learned Sub
Divisional Judicial Magistrate, Ranchi.
4. In Cr.M.P. No.3385 of 2013, the prayer is made for quashing
of the F.I.R. being Doranda P.S. Case No.617 of 2013 dated 03.12.2013,
pending in the court of learned Sub Divisional Judicial Magistrate, Ranchi
as also the order dated 07.12.2013 passed in the same whereby warrants
of arrest have been issued.
5. In Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and
Cr.M.P. No.1011 of 2016, the complaint case was filed alleging therein
inter alia, that the complainant amongst other properties, owns a piece
of land in North Office Para, having an area of 3.065 acres of land
situated in Khata No. 191, Plot Nos. 918 and 919, P.O. & P.S. Doranda,
District Ranchi, which is a part and parcel of the complainant's residential
house, which is his ancestral property. It has been further alleged that
the State of Jharkhand through the Deputy Commissioner, Ranchi had
made a of false claim regarding the ownership of land and the
complainant, along with his brothers, being law abiding citizens filed Title
Suit No. 134 of 1999, being a suit for declaration of right, title and
possession and in the alternative for restoration of possession in the
Court of learned Munsif, Ranchi who decreed the suit in favour of the
applicant and his brothers vide judgment and decreed dated 31.7.2002.
Thereafter the State preferred a Title Appeal before the learned Judicial
Commissioner, Ranchi, which was numbered as Title Appeal No.21 of
2002/ 19 of 2003, which was dismissed vide order dated 22.12.2003 by
the Judicial Commissioner, learned F.T.C., Additional Ranchi. Thereafter a
Second Appeal being S.A. No. 216 of 2005 was preferred by the State
before the Hon'ble High Court of Jharkhand, which was also dismissed by
order dated 7.1.2008. The State again preferred a Special Leave Petition
before the Hon'ble Supreme Court of India vide S.L.P. (Civil) No. 29275
of 2010, which was also dismissed by order dated 19.11.2010 and the
review petition filed against this order has also been dismissed vide order
dated 27.9.2011.
It has further been alleged on 3.12.2013, the on 3.12.2013, the
complainant received a telephone call from the Doranda Police Station
asking them or their representatives to appear before the Dy.S.P., Hatia
at Doranda P.S. at 12.30 p.m. on the same day i.e. 2.12.2013. The son of
the complainant who is a practicing Advocate namely, in the Hon'ble High
Court, Shri Veer Vijay Pradhan, accompanies by two other Advocates,
namely, Sri Rajesh Kumar and Sri Abhinesh Kumar reached the Police
Station at 12.30 in the afternoon. The Deputy Superintendent of 1, Hatia
was present in the Police Station and called for the son of the
complainant and others at about 12.40-12.45 p.m. soon after they
entered into the room of Doranda P.S. where the Dy.S.P. was sitting and
enquired as to why he had been called, she started abusing them and
asked for the papers of their ancestral land and house stating that she
had received a complaint from one Anuradha Sharma that they were
wanting to grab her land. The son of the complainant and the
representatives of the complainant, namely, Shri Veer Vijay Pradhan
informed the Dy.S.P., Hatia that said Anuradha Sharma seemed to have
got wrong and incorrect information since the land, as being described
by her, being a piece of land measuring 3.065 acres, Khata No. 191, Plot
Nos. 918, 919 which belonged to the family of the complainant herein,
i.e. jointly owned by the complainant, which at one point of time, had
been claimed by the State Government.
It has been further alleged that the details, as mentioned in the
Para-2 of the instant complaint petition along with the copies of the
orders of the various Hon'ble Courts were handed over to the accused
No. 1, Dy.S.P. Hatia at Doranda Police Station, but she threw them away
saying that she was the law and she can handle law. The said
misconduct of the Dy.S.P., Hatia was informed to various forums.
It is further alleged that the complainant who is suffering from knee
problem and stays generally at home, he was informed by this staff a
police team headed by Dy.S.P., Hatia were breaking open the lock put on
the gate of their campus and simultaneously by using a gas cutter, were
cutting off the hinge by which the gate was affixed to the ground. The
complainant went there to enquire about the matter, but he was also
abused by Ms. Nisha Murmu, Dy. S.P., Hatia, who got the lock to the gate
broken and the lower hinge and forcibly entered into the campus of the
complainant along with 10-12 police personnel including the Sub
Inspectors and others, all of whom were variously armed with the
automated rifles/ carbines and side arms. The complainant requested the
Dy.S.P. Hatia to show him any order of the competent court of law or
authorizing her to break open the lock, damage the gate and forcibly
enter their campus, to which she replied that she herself was the law and
had seen many people like the complainant as also the Advocate like his
son and it would be in his interest that he stop back otherwise, she
would get him thrash by the accompanying armed police party and
thrown him in Jail. Thereafter the complainant immediately informed his
son, Veer Vijay Pradhan, who along his colleagues reached the site and
tried to explained the to actual position the Dy.S.P., but she just pushed
them aside with the armed police party and entered the premises while
all along threatening them with severe beating as also telling them that
she would lock them up in the Police Station, It has been further alleged
that several people of the area gathered and other colleagues of the Shri
Veer Vijay Pradhan, namely, Shri Rajesh Kumar, Shir Abhinesh Kumar,
Shri Shiv Shankar, Shri Navin Kumar, Shri P.C. Roy (Advocate), Shri P.C.
Tripathy (Sr. Advocate) also reached the site along with other persons. In
spite of lapse of over two hours, the Dy. S.P., Hatia, refused to wait and
on being asked pointed out a gentleman who was accompanying her,
stating that he was the Magistrate deputed to ensure breaking open of
the lock and cutting the gate hinge and taking possession of the land in
question. The said person revealed as name as Umesh Rajak, Block
Statistical Supervisor, Bero/ Itki, Ranchi. He said he has been verbally
deputed by the S.D.O., Sadar, Ranchi. The complainant at about 5.40
p.m. came to know about registration of Doranda P.S. None F.I.R. No.
01/2013 dated 3.12.2013 u/s 147 Cr.P.C. The Dy.S.P. left the site.
However, 4-5 armed constables remained at the site. The said constables
entered into the premises at about 8.00 p.m. and asked the complainant
they had been ordered by accused No. 1 to inform you that it would be
better for their health to follow her orders and even give her one acre
from the properties in question for her residence otherwise, she would
put them in the lock- up of Doranda P.S. and shoot them stating that
they were trying to escape and show it as a police encounter.
It has been further alleged that the complainant submitted his show
cause to the notice dated 3.12.2013, as aforesaid.
It has been further alleged that in a highly arbitrary manner, the
Doranda Police Station and the Dy.S.P. Hatia, as also the personnel
present there refused to accept the reply dated 4.12.2013. The Dy.S.P.,
Hatia, namely, Nisha Murmu has grossly misused the powers conferred
upon her and has taken the law into her hands and has tortured,
harassed, brutalized and insulted the complainant and their family
members and friends in an act of police atrocities and thereby violating
their human rights as guaranteed under Article 21 of the Constitution of
India, in spite of several orders of Hon'ble Court in favour of the
complainant. It has further been alleged that the complainant tried to
lodge an F.I.R but the Doranda P.S. refused to register the same and
therefore this complainant.
6. In Cr.M.P. No.3385 of 2013, the F.I.R has been registered
alleging therein that the informant who happens to be the Block
Statistical Supervisor at Bero being deputed as Magistrate by the Order
of the Sub Divisional Officer, Ranchi, vide his letter No.2672 dated
03.12.2013 to maintain law and order with respect to the dispute in
between the petitioner no.1 and others and one Anuradha Sharma, along
with police officials and force of Doranda Police Station reached at about
2.30 p.m. on 03.12.2013 near the house of Anuradha Sharma. It is
stated that while Anuradha Sharma took the informant and others inside
her gate and was explaining the situation, in the meantime, the
petitioners and others reached there and enquired as to how the lock of
their gate was broken. In response to their query, the informant said
that, they have not opened the gate rather they came to maintain the
law and order. It is further alleged that keeping in view the aggressive
attitude of the petitioners and others and on receipt of information to
that effect, the other police officials and force of Doranda Police Station
reached there, but the petitioners and others compelled the informant to
write in a blank paper and under compelling situation the informant
written as desired by them to maintain the law and order and the
informant and other police officials immediately left the place, to avoid
serious law and order problem.
7. Mr. R.S. Mazumdar, the learned Senior counsel appearing on
behalf of the petitioners in all the three cases being Cr.M.P. No.579 of
2016, Cr.M.P. No.1008 of 2016 and Cr.M.P. No.1011 of 2016, submits that
Mr. Amit Kumar, who is the petitioner in Cr.M.P. No.579 of 2016 was
posted as S.D.O (Sadar), Ranchi at the relevant point of time. He submits
that the petitioners in Cr.M.P. No.1008 of 2016 were posted as, being
petitioner no.1, namely, Ms.Nisha Murmu, Deputy Superintendent of
Police, Hatia, petitioner no.2, namely, Umesh Rajan, Block Statistical
Supervisor, Bero, Itki, petitioner no.3, namely, Ms. Aradhana Singh, Sub
Inspector of Police, Doranda Police Station and petitioner no.4, namely,
Shailesh Kumar Singh, Sub Inspector of Police Doranda Police Station at
the relevant point of time. He submits that all these officers were
discharging the official duties and the contents of the complaint petition
is with regard to the dispute of land (in-gress and out-gress) between
Anuradha Sharma and Krishna Pradhan and his family members. He
submits that the law and order situation was arisen and pursuant to that,
the complaint was made by Anuradha Sharma and that led to the act on
behalf of these officials. He further submits that Anuradha Sharma
lodged the case being Doranda P.S. Case No.614 of 2013 on 02.12.2013
against Krishna Pradhan and Biren Pradhan and 30-40 unknown persons
stating that her in-gress and out-gress has been blocked by these
accused persons and pursuant to that on the request of officer incharge
of Doranda Police Station, Mr. Amit Kumar, the then S.D.O.(Sadar),
Ranchi passed the order of deputation of Magistrate, namely, Umesh
Rajak who was posted as Block Statistical Supervisor at that time and
that order is at Annexure-3 at page no.12 of the supplementary affidavit.
He further submits that pursuant to that, the deputed magistrate as well
as the Deputy Superintendent of Police and other police officials made
camp at the disputed site. He submits that section 147 Cr.P.C. proceeding
was initiated by Amit Kumar on 04.12.2013 and the order is contained in
Annexure-5 at page no.17 of the supplementary affidavit. He submits
that since in-gress and out-gress of Anuradha Sharma was blocked by
the complainant, the deputed magistrate and the police officials have
acted and got opened the lock. He further submits that said Umesh
Rajak has filed the case against Pradhan family being Doranda P.S. Case
No.617 of 2013 on 03.12.2013 alleging therein that Pradhans have
obstructed in the official duty of the deputed officers and the allegations
of abuse are also there. By way of referring paragraph no.17 and 18 of
the complaint petition, he submits that apart from that, there is no
allegation against Amit Kumar who at that time was posted as S.D.O.
(Sadar), Ranchi. He further submits that Anuradha Sharma has lodged
Doranda P.S. Case No.614 of 2013 on 02.12.2013 alleging therein that in-
gress and out-gress was blocked by Pradhan family and pursuant to that,
the deputation was made by the S.D.O.(Sadar), Ranchi. He further
referred to the supplementary affidavit and submits that there is no
allegation of any overt-act against Amit Kumar. He submits that so far
the petitioners in Cr.M.P. No.1008 of 2016 are concerned, they were
discharging the official duty pursuant to the direction of the higher
authority. He further submits that in these background, the complaint
case has been lodged against these petitioners which is a malicious
complaint case. He further submits that so far as petitioner Anuradha
Sharma in Cr.M.P. No.1011 of 2016 is concerned, there is no allegation
against her in the solemn affirmation of the complainant. He submits that
since Anuradha Sharma has lodged the case, as a counter blast, the
present complaint case is lodged against the government officials as well
as Anuradha Sharma. In this background, he submits that the case has
been maliciously lodged against the petitioners and in view of that the
entire criminal proceeding may kindly be quashed. He further submits
that the petitioners were discharging the official duty and Section 197
Cr.P.C is attracted and to buttress his argument, he relied in the case of
Om Prakash and Others v. State of Jharkhand through the
Secretary, Department of Home, Ranchi and Another, (2012) 12
SCC 72 and referred to paragraph nos.32, 34 and 41 of the said
judgment which are quoted below:
"32. The true test as to whether a public servant was
acting or purporting to act in discharge of his duties
would be whether the act complained of was directly
connected with his official duties or it was done in the
discharge of his official duties or it was so integrally
connected with or attached to his office as to be
inseparable from it (K. Satwant Singh [AIR 1960 SC
266 : 1960 Cri LJ 410 : (1960) 2 SCR 89] ). The
protection given under Section 197 of the Code has
certain limits and is available only when the alleged act
done by the public servant is reasonably connected with
the discharge of his official duty and is not merely a
cloak for doing the objectionable act. If in doing his
official duty, he acted in excess of his duty, but there is
a reasonable connection between the act and the
performance of the official duty, the excess will not be a
sufficient ground to deprive the public servant of the
protection (Ganesh Chandra Jew [(2004) 8 SCC 40 :
2004 SCC (Cri) 2104] ). If the above tests are applied to
the facts of the present case, the police must get
protection given under Section 197 of the Code
because the acts complained of are so integrally
connected with or attached to their office as to be
inseparable from it. It is not possible for us to come to a
conclusion that the protection granted under Section
197 of the Code is used by the police personnel in this
case as a cloak for killing the deceased in cold blood.
34. In Matajog Dobey [AIR 1956 SC 44 : 1956 Cri LJ
140 : (1955) 2 SCR 925] the Constitution Bench of this
Court was considering what is the scope and meaning
of a somewhat similar expression "any offence alleged
to have been committed by him while acting or
purporting to act in the discharge of his official duty"
occurring in Section 197 of the Criminal Procedure
Code (5 of 1898). The Constitution Bench observed that
no question of sanction can arise under Section 197
unless the act complained of is an offence; the only
point to determine is whether it was committed in the
discharge of official duty. On the question as to which
act falls within the ambit of abovequoted expression,
the Constitution Bench concluded that there must be a
reasonable connection between the act and the
discharge of official duty; the act must bear such
relation to the duty that the accused could lay a
reasonable, but not a pretended or fanciful claim that he
did it in the course of performance of his duty. While
dealing with the question whether the need for sanction
has to be considered as soon as the complaint is
lodged and on the allegations contained therein, the
Constitution Bench referred to Hori Ram Singh [AIR
1939 FC 43 : (1939) 1 FCR 159] and observed that at
first sight, it seems as though there is some support for
this view in Hori Ram Singh [AIR 1939 FC 43 : (1939) 1
FCR 159] because Sulaiman, J. has observed in the
said judgment that as the prohibition is against the
institution itself, its applicability must be judged in the
first instance at the earliest stage of institution and
Varadachariar, J. has also stated that: (Matajog Dobey
case [AIR 1956 SC 44 : 1956 Cri LJ 140 : (1955) 2 SCR
925] , AIR p. 49, para 20)
"20. ... the question must be determined with
reference to the nature of the allegations made against
the public servant in the criminal proceedings."
It is pertinent to note that the Constitution Bench has
further observed that a careful perusal of the later parts
of the judgment however show that the learned Judges
did not intend to lay down any such proposition. The
Constitution Bench quoted the said later parts of the
judgment as under: (Matajog Dobey case [AIR 1956 SC
44 : 1956 Cri LJ 140 : (1955) 2 SCR 925] , AIR pp. 49-
50, para 20)
"20. ... Sulaiman, J. refers to the prosecution case
as disclosed by the complaint or the 'police report' and
he winds up the discussion in these words: (Hori Ram
Singh case [AIR 1939 FC 43 : (1939) 1 FCR 159] , AIR
p. 52 : FCR p. 179)
'... 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: (Hori Ram Singh
case [AIR 1939 FC 43 : (1939) 1 FCR 159] , AIR p. 55 :
FCR p. 185)
'... 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."
The legal position is thus settled by the Constitution
Bench in the above paragraph. Whether sanction is
necessary or not may have to be determined from stage
to stage. If, at the outset, the defence establishes that
the act purported to be done is in execution of official
duty, the complaint will have to be dismissed on that
ground."
41. The upshot of this discussion is that whether
sanction is necessary or not has to be decided from
stage to stage. This question may arise at any stage of
the proceeding. In a given case, it may arise at the
inception. There may be unassailable and
unimpeachable circumstances on record which may
establish at the outset that the police officer or public
servant was acting in performance of his official duty
and is entitled to protection given under Section 197 of
the Code. It is not possible for us to hold that in such a
case, the court cannot look into any documents
produced by the accused or the public servant
concerned at the inception. The nature of the complaint
may have to be kept in mind. It must be remembered
that previous sanction is a precondition for taking
cognizance of the offence and, therefore, there is no
requirement that the accused must wait till the charges
are framed to raise this plea. At this point, in order to
exclude the possibility of any misunderstanding, we
make it clear that the legal discussion on the
requirement of sanction at the very threshold is based
on the finding in the earlier part of the judgment that the
present is not a case where the police may be held
guilty of killing Munna Singh in cold blood in a fake
encounter. In a case where on facts it may appear to
the court that a person was killed by the police in a
stage-managed encounter, the position may be
completely different."
8. Relying on the above judgment, he submits that law and
order situation is there and in view of that, the authorities have acted
bonafidely and in view of that, this judgment is applicable so far the
petitioner namely, Amit Kumar and other petitioners in Cr.M.P. No.1008 of
2016 are concerned. On the same point, he further relied in the case of
Surinderjit Singh Mand and Another v. State of Punjab and
Another, (2016) 8 SCC 722, and referred to paragraph nos.30 and 31
of the said judgment, which are quoted below:
"30. The law declared by this Court emerging from the
judgments referred to hereinabove, leaves no room for any
doubt that under Section 197 of the Code and/or sanction
mandated under a special statute (as postulated under
Section 19 of the Prevention of Corruption Act) would be a
necessary prerequisite before a court of competent
jurisdiction takes cognizance of an offence (whether under
the Penal Code, or under the special statutory enactment
concerned). The procedure for obtaining sanction would be
governed by the provisions of the Code and/or as mandated
under the special enactment. The words engaged in Section
197 of the Code are,
"... no court shall take cognizance of such offence except with
previous sanction...".
Likewise sub-section (1) of Section 19 of the Prevention of
Corruption Act provides--
"19. Previous sanction necessary for prosecution.--(1)
No court shall take cognizance ... except with the previous
sanction ...."
The mandate is clear and unambiguous that a court "shall
not" take cognizance without sanction. The same needs no
further elaboration. Therefore, a court just cannot take
cognizance without sanction by the appropriate authority.
Thus viewed, we find no merit in the second contention
advanced at the hands of the learned counsel for the
respondents that where cognizance is taken under Section
319 of the Code, sanction either under Section 197 of the
Code (or under the special enactment concerned) is not a
mandatory prerequisite.
31. According to the learned counsel representing
Respondent 2, the position concluded above would give the
impression that the determination rendered by a court under
Section 319 of the Code is subservient to the decision of the
competent authority under Section 197. No, not at all. The
grant of sanction under Section 197 can be assailed by the
accused by taking recourse to judicial review. Likewise, the
order declining sanction can similarly be assailed by the
complainant or the prosecution."
9. Relying on the above judgments, he submits that if such a
situation is there, as referred in his argument, section 197 Cr.P.C is
attracted. On the same point, he further relied in the case of Amal
Kumar Jha v. State of Chhatisgarh and Another, (2016) 6 SCC
734 and referred to paragraph nos.14 of the said judgment which is
quoted below:
"14. In view of the aforesaid discussion, it is clear that the
omission complained of, due to which offence is stated to
have been committed, was intrinsically connected with
discharge of official duty of the appellant, as such the
protection under Section 197 CrPC from prosecution without
sanction of the competent authority, is available to the
appellant. Thus, he could not have been prosecuted without
sanction. It would be for the competent authority to consider
the question of grant of sanction in accordance with law. In
case sanction is granted only then the appellant can be
prosecuted and not otherwise. Resultantly, the impugned
orders are set aside, the appeal is allowed."
10. Relying on the above, he submits that if the acts disclosed is
in the nature of discharge of official duty, section 197 Cr.P.C is attracted
and in view of that this judgment is applicable so far the petitioners, who
are government officials, are concerned. On the same point, he further
relied in the case of A. Srinivasulu v. State Reb. By Inspector of
Police, 2023 SCC OnLine SC 900. Paragraph nos.47 to 53 of the said
judgment are quoted below:
"47. For the purpose of finding out whether A-1
acted or purported to act in the discharge of his official
duty, it is enough for us to see whether he could take
cover, rightly or wrongly, under any existing policy.
Paragraph 4.2.1 of the existing policy extracted above
shows that A-1 at least had an arguable case, in
defence of the decision he took to go in for Restricted
Tender. Once this is clear, his act, even if alleged to be
lacking in bona fides or in pursuance of a conspiracy,
would be an act in the discharge of his official duty,
making the case come within the parameters of Section
197(1) of the Code. Therefore, the prosecution ought to
have obtained previous sanction. The Special Court as
well as the High Court did not apply their mind to this
aspect.
48. Shri Padmesh Mishra, learned counsel for the
respondent placed strong reliance upon the observation
contained in paragraph 50 of the decision of this Court
in Parkash Singh Badal v. State of Punjab10. It reads as
follows:--
"50. The offence of cheating under Section 420
or for that matter offences relatable to Sections 467,
468, 471 and 120-B can by no stretch of imagination
by their very nature be regarded as having been
committed by any public servant while acting or
purporting to act in discharge of official duty. In
such cases, official status only provides an
opportunity for commission of the offence."
49. On the basis of the above observation, it was
contended by the learned counsel for the respondent
that any act done by a public servant, which constitutes
an offence of cheating, cannot be taken to have been
committed while acting or purporting to act in the
discharge of official duty.
50. But the above contention in our opinion is far-
fetched. The observations contained in paragraph 50 of
the decision in Parkash Singh Badal (supra) are too
general in nature and cannot be regarded as the ratio
flowing out of the said case. If by their very nature, the
offences under sections 420, 468, 471 and 120B cannot
be regarded as having been committed by a public
servant while acting or purporting to act in the discharge
of official duty, the same logic would apply with much
more vigour in the case of offences under the PC Act.
Section 197 of the Code does not carve out any group
of offences that will fall outside its purview. Therefore,
the observations contained in para 50 of the decision
in Parkash Singh Badal cannot be taken as carving out
an exception judicially, to a statutory prescription. In
fact, Parkash Singh Badal cites with approval the
other decisions (authored by the very same learned
Judge) where this Court made a distinction between an
act, though in excess of the duty, was reasonably
connected with the discharge of official duty and an act
which was merely a cloak for doing the objectionable
act. Interestingly, the proposition laid down in Rakesh
Kumar Mishra (supra) was distinguished in paragraph
49 of the decision in Parkash Singh Badal, before the
Court made the observations in paragraph 50 extracted
above.
51. No public servant is appointed with a mandate or
authority to commit an offence. Therefore, if the
observations contained in paragraph 50 of the decision
in Parkash Singh Badal are applied, any act which
constitutes an offence under any statute will go out of
the purview of an act in the discharge of official duty.
The requirement of a previous sanction will thus be
rendered redundant by such an interpretation.
52. It must be remembered that in this particular
case, the FIR actually implicated only four persons,
namely PW-16, A-3, A-4 an A-5. A-1 was not implicated
in the FIR. It was only after a confession statement was
made by PW-16 in the year 1998 that A-1 was roped in.
The allegations against A-1 were that he got into a
criminal conspiracy with the others to commit these
offences. But the Management of BHEL refused to
grant sanction for prosecuting A-3 and A-4, twice, on
the ground that the decisions taken were in the realm of
commercial wisdom of the Company. If according to
the Management of the Company, the very same act
of the co-conspirators fell in the realm of
commercial wisdom, it is inconceivable that the act
of A-1, as part of the criminal conspiracy, fell
outside the discharge of his public duty, so as to
disentitle him for protection under Section 197(1) of
the Code.
53. In view of the above, we uphold the contention
advanced on behalf of A-1 that the prosecution ought to
have taken previous sanction in terms of Section 197(1)
of the Code, for prosecuting A-1, for the offences under
the IPC."
11. Relying on the above judgment, he submits that even prior
sanction is required even for the act done in excess of discharge of
official duty. In view of that, he submits that the entire criminal
proceeding is bad so far the government officials are concerned in the
present case. On the same point, he further relied in the case of Abdul
Wahab Ansari v. State of Bihar and Another, (2008) 8 SCC 500
and referred to paragraph nos.5 and 9 of the said judgment, which are
quoted below:
"5. In view of the rival submissions at the Bar, two
questions arise for our consideration:
1. Assuming the provisions of Section 197 of the Code of
Criminal Procedure applies, at what stage the accused can
take such plea? Is it immediately after the cognizance is
taken and process is issued or is it only when the court
reaches the stage of framing of charge as held by this Court
in Birendra K. Singh case [(2000) 8 SCC 498 : JT (2000) 8 SC
248] ?
2. Whether in the facts and circumstances of the present
case, is it possible for the Court to come to a conclusion that
the appellant was discharging his official duty and in course
of such discharge of duty, ordered for opening of fire to
control the mob in consequence of which a person died and
two persons were injured and in which event, the provisions
of Section 197 of the Code of Criminal Procedure can be held
to be attracted?
9. Coming to the second question, it is now well settled
by the Constitution Bench decision of this Court in Matajog
Dobey v. H.C. Bhari [AIR 1956 SC 44 : (1955) 2 SCR 925] that
in the matter of grant of sanction under Section 197 of the
Code of Criminal Procedure the offence alleged to have been
committed by the accused must have something to do, or
must be related in some manner, with the discharge of
official duty. In other words, there must be a reasonable
connection between the act and the discharge of official
duty; the act must bear such relation to the duty that the
accused could lay a reasonable claim, but not a pretended or
fanciful claim, that he did it in the course of the performance
of his duty. In the said case it had been further held that
where a power is conferred or a duty imposed by statute or
otherwise, and there is nothing said expressly inhibiting the
exercise of the power or the performance of the duty by any
limitations or restrictions, it is reasonable to hold that it
carries with it the power of doing all such acts or employing
such means as are reasonably necessary for such execution,
because it is a rule that when the law commands a thing to
be done, it authorises the performance of whatever may be
necessary for executing its command. This decision was
followed by this Court in Suresh Kumar Bhikamchand Jain
case [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] and in a recent
judgment of this Court in the case of Gauri Shankar
Prasad v. State of Bihar [(2000) 5 SCC 15 : 2000 SCC (Cri) 872]
. The aforesaid case has full force even to the facts of the
present case inasmuch as in the said case, the Court had
observed: (SCC p. 21, para 14)
"[I]t is manifest that the appellant was present at the
place of occurrence in his official capacity as Sub-Divisional
Magistrate for the purpose of removal of encroachment from
government land and in exercise of such duty, he is alleged to
have committed the acts which form the gravamen of the
allegations contained in the complaint lodged by the
respondent. In such circumstances, it cannot but be held that
the acts complained of by the respondent against the
appellant have a reasonable nexus with the official duty of
the appellant. It follows, therefore, that the appellant is
entitled to the immunity from criminal proceedings without
sanction provided under Section 197 CrPC."
It is not necessary for us to multiply authorities on this point
and bearing in mind the ratio of the aforesaid cases and
applying the same to the facts of the present case as
indicated in the complaint itself, we have no hesitation to
come to the conclusion that the appellant had been directed
by the Sub-Divisional Magistrate to be present with police
force and remove the encroachment in question and in
course of discharge of his duty to control the mob, when he
had directed for opening of fire, it must be held that the
order of opening of fire was in exercise of the power
conferred upon him and the duty imposed upon him under
the orders of the Magistrate and in that view of the matter
the provisions of Section 197(1) applies to the facts of the
present case. Admittedly, there being no sanction, the
cognizance taken by the Magistrate is bad in law and unless
the same is quashed qua the appellant, it will be an abuse of
the process of Court. Accordingly, we allow this appeal and
quash the criminal proceeding, so far as the appellant is
concerned."
12. He submits that identical was the situation in the present
case whereby removal of encroachment order was there and pursuant to
that the case is arisen and the Hon'ble Supreme Court interfered and in
present case identical is the situation so far government official in the
present dispute is concerned. He further submits that the complaint case
is filed against the government officials and if such situation is there, it is
malicious as held in the case of Anjani Kumar v. State of Bihar and
Another, (2008) 5 SCC 248. Paragraph no.12 and 14 of the said
judgment are quoted below:
"12. As the factual scenario goes to show the complaint
filed on 4-2-1993 appears to be a counterblast by
Respondent 2 for the action taken by the appellant against
him.
14. When the factual background as noted above is
considered on the touchstone of legal principles set out
above the inevitable conclusion is that certainly mala fides
were involved apart from the applicability of Section 197 of
the Code. It is no doubt true that at the threshold
interference by exercise of Section 482 of the Code has to be
in rare cases. The present case appears to be of that nature
and falls under Category (7) indicated in State of
Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] . The continuance of the proceedings by the prosecution
would amount to abuse of the process of law. The criminal
proceedings in the Court of the learned Chief Judicial
Magistrate, Begusarai in PS Case No. 63 of 1993 are
quashed. The appeal is allowed."
13. Relying on the above judgments and these facts, he submits
that the entire criminal proceeding so far as the petitioners in Cr.M.P.
No.579 of 2016, Cr.M.P. No.1008 of 2016 and Cr.M.P. No.1011 of 2016
are concerned, may kindly be quashed.
14. Per contra, Mr. Sumeet Gadodia, the learned counsel
appearing on behalf of the O.P.No.2 in all these three cases, submits that
Anuradha Sharma was having in-gress and out-gress on the other side of
the disputed land and she was not using the said land and forcibly she
has opened the gate in the premises of Pradhans and in view of that, the
dispute was there. He submits that the plot in question is in possession
of Pradhans and the dispute of that has gone up to Hon'ble Supreme Court
and in view of that, action on behalf of the officials on the complaint of
Anuradha Sharma was not within the purview of official duty and in view
of that, rightly the complaint case is filed. He further submits that Umesh
Rajak has filed the counter affidavit in Cr.M.P. No.3385 of 2013 and
subsequently, he has filed one I.A. before this Court praying therein to
ignore the said counter affidavit and to accept the said I.A as a counter
affidavit. He submits that the said prayer was allowed by the coordinate
Bench of this Court by order dated 02.08.2016. He submits that in these
background, when the order taking cognizance is already there, the
complaint may not be quashed. He further submits that maliciously in
this background, the case is registered against Krishna Pradhan, Ran
Vijay Pradhan, Digvijay Pradhan, Ravindra Pradhan and Mahavir Pradhan
by Umesh Rajak being Doranda P.S. Case No.617 of 2013 dated
03.12.2013. He submits that maliciously the present F.I.R is lodged
against Pradhan family and the entire criminal proceeding may kingly be
quashed. He submits that in this background, the plot in question is in
possession of Pradhans and there was no occasion to the police officials
to act forcibly. He submits that there is no order of demolition, however,
the said act is taken place on the verbal direction of Amit Kumar who is
the then S.D.O.(Sadar), Ranchi. He submits that the direction was not there
and such act of the government officials are not coming within the
nature of official duty. By way of referring to page 127, he submits that
Umesh Rajak has stated that on the oral instruction of the S.D.O.(Sadar),
Ranchi he has acted. He further refers to the I.A. filed by Umesh Rajak and
submits that in the I.A. he has stated that there was no aggression on the
part of Pradhans. On these ground, he submits that the entire criminal
proceeding may kindly be quashed. He submits that there are line of
judgments of Hon'ble Supreme Court as well as by this Court and
whereby the malicious prosecution has proved, the Courts have
interfered. Lastly, he relied in the case of Mahmood Ali and Others v.
State of Uttar Pradesh and Others, 2023 SCC OnLine SC 950 and
upon relying on this judgment, he submits that if such act is there, the
Court is required to read the things in between the lines and the Court
can interfere. He further submits that this Court has also interfered in the
case of Ram Shankar Singh v. State of Jharkhand and Deo
Narayan Ranju @ D.N. Ranju [Cr.M.P. No.702 of 2011 with
Cr.M.P. No.918 of 2011] by order dated 06.12.2023 and in the case of
Dr. Om Prakash Anand v. The State of Jharkhand and Another
[Cr. M.P. No.1914 of 2021] by order dated 20.07.2022. On these
grounds, he submits that the case filed by the government official may
kindly be dismissed and the F.I.R filed by Umesh Rajak may kindly be
quashed.
15. Mr. Sahil, the learned counsel appearing on behalf of
O.P.No.2, namely, Umesh Rajak in Cr.M.P. No.3385 of 2013 submits that
initially he has filed the counter affidavit and found that certain fact is
not correct and in view of that the I.A. has been filed which was
accepted by the coordinate Bench of this Court by order dated
02.08.2016. He submits that on verbal order he has acted, however,
filing of F.I.R being Doranda P.S. Case No.617 of 2013 he is not
disputing.
16. The learned counsels appearing on behalf of the respondent
State submits that the petitioners in three cases were discharging official
duty and in view of that, maliciously the present cases has been filed
against these petitioners after lodging of the F.I.R. by Anuradha Sharma
being Doranda P.S. Case No.614 of 2013. They jointly submit that it was
in the discharge of official duty and maliciously the present cases have
been filed against the government officials. They submits that Umesh
Rajak case is still being investigated and only FIR is under challenge in
Cr.M.P. No.3385 of 2013. They submit that there are parameters of
quashing and no case of interference is made out and accordingly,
Cr.M.P. No.3385 of 2013 as also all the three cases may kindly be
dismissed.
17. In view of above submission of learned counsel for the
parties, the Court has gone through the documents of all these three
Cr.M.Ps. minutely including the contents of the concerned F.I.Rs which
are the subject matter of these Cr.M.Ps. Admittedly, it appears that there
is dispute with regard to in-gress and out-gress with Anuradha Sharma
and Pradhans and for that the case has been registered by Anuradha
Sharma being Doranda P.S. Case No.614 of 2013. On the report of the
Sub- Inspector of Doranda police station Mr. Amit Kumar, who was the
then S.D.O.(Sadar) Ranchi acted and deputed Umesh Rajak who was
Block Statistical Supervisor as Magistrate to maintain the law and order
and pursuant to that, Mr. Rajak, along with other officers were camping
in the disputed site. Proceeding under section 147 Cr.P.C has also been
initiated by Mr. Amit Kumar the then S.D.O.(Sadar), Ranchi by order
dated 04.12.2013. Mr. Umesh Rajak has filed Doranda P.S. Case No.617
of 2013 on 03.12.2013 stating therein that Pradhans have made
aggression and they have interfered with the official duty of the officers
and that case is still being investigated by the police. In the solemn
affirmation there is no averment against Mr. Amit Kumar except of verbal
instruction by said Amit Kumar. In the solemn affirmation there is further
no allegation so far Anuradha Sharma is concerned. Thus, it appears that
for maintaining law and order situation Mr. Amit Kumar has acted upon
and pursuant to that, he has deputed Mr. Rajak as Magistrate and said
Rajak has filed the F.I.R being Doranda P.S. Case No.617 of 2013 stating
that Pradhans have made aggression on the site and they have
interfered with the official duty of the officers. The government official
being Mr. Rajak has all of sudden taken U-turn by way of filing an
affidavit that on the oral instruction of Mr. Amit Kumar, he has acted, is a
matter of concern. When he himself has filed the FIR being Doranda P.S.
Case No.617 of 2013 the filing of the counter affidavit and later on filing
the I.A. for treating that counter affidavit as erroneous and to treat the
I.A. has further raised the eye-brow and these all are the subject matter
of investigation. If a law and order situation is arisen, it is within the
domain of the district authority to swiftly act to prevent any untoward
incident and what has been discussed hereinabove and the documents
on record suggest that if such a situation was there and in view of that
the government officials have acted and if it was the official duty, section
197 Cr.P.C. is certainly attracted against the government officials and in
view of that, the judgment relied by Mr. Mazumdar, the learned Senior
counsel in Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and Cr.M.P.
No.1011 of 2016 (supra) are in favour of the government officials who
are the petitioners in said three Cr.M.Ps. It has been pointed out in
course of argument that in Doranda P.S. Case No.617 of 2013 the charge
sheet has already been submitted by the police and the learned court
has already taken cognizance and it is running for appearance. In
Cr.M.P.No.3385 of 2013 only the F.I.R is under challenge. No I.A. has
been filed for challenging the further development and what are the
materials in the charge sheet is not before the Court which can only be
the subject matter of trial. Thus, no case of interference is made out so
far as Cr.M.P.No.3385 of 2013 is concerned as the charge sheet is already
there and even accepting the argument with regard to Mr. Rajak, the
affidavit and withdrawal of the counter affidavit and the I.A, no case of
interference is made out as the charge sheet is already there. So far as
the said three cases are concerned what has been discussed
hereinabove, the Court comes to the definite conclusion that these
petitioners, except Anuradha Sharma in Cr.M.P. No.579 of 2016, Cr.M.P.
No.1008 of 2016 and Cr.M.P. No.1011 of 2016 were discharging the
official duty. In view of these facts, the cases relied by Mr. Gadodia, the
learned counsel appearing on behalf of the petitioner in Cr.M.P.No.3385
of 2013 and also appearing on behalf of the Opposite Party no.2 in said
three cases i.e. Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and
Cr.M.P. No.1011 of 2016, are not helping the petitioner in Cr.M.P.No.3385
of 2013. There is allegation of aggression by Pradhans and interfering in
the official duty and the charge sheet is already there and in view of
that, even the Court is trying to read the things in between the lines, is
not finding the case of interference and in view of that, the judgment
relied by Mr. Gadodia, the learned counsel for the petitioners in
Cr.M.P.No.3385 of 2013 in Mahmood Ali and Others v. State of Uttar
Pradesh and Others (supra) is not helping the petitioners in
Cr.M.P.No.3385 of 2013. The other cases relied by Mr. Gadodia, the
learned counsel appearing for the petitioners in Cr.M.P.No.3385 of 2013
where the facts are different and in view of that, the Court has interfered
in those judgments which are also not helping the petitioners in
Cr.M.P.No.3385 of 2013. The law is well settled regarding interference by
the High Court with the investigation of a case. The extraordinary power
under Article 226 of the Constitution of India or inherent power under
section 482 Cr.P.C cannot be exercised by the High Court either to
prevent the abuse of process of any court or otherwise to secure the
ends of justice. The power of quashing a criminal proceeding can be
exercised sparingly and with circumspection and that too in the rarest of
the rare case. Thus, the specific allegations were made in the F.I.R and
prima facie case is made out against the accused persons, the High
Court is restricted to pass such order of quashing and there are lines of
judgment on these points and the reference of certain judgments will
suffice; in the case of State of Bihar and Another v. Md. Khalique
and Another, (2002) 1 SCC 652; in the case of Som Mittal v.
Government of Karnataka, (2008) 3 SCC 753 and further in the
case of Hareram Satpathy v. Tikaram Agarwala and Others,
(1978) 4 SCC 58. It is necessary to protect the public servants in
discharge of their official duties. In the facts and circumstances of the
each case, protection of public servants functioning in discharge of their
official duties and protection of private citizens have to be balanced by
finding out as to what extent and how far is a public servant working in
discharge of his duties or purported discharge of his duties, and whether
the public servant has exceeded his limit. What has been narrated
hereinabove, it is a crystal case of discharging the official duty on behalf
of the public servant. It is the quality of the act which is important and
protection by these sections is available if the act falls within the range of
official duty. There cannot be universal rule to determine whether there
is reasonable connection between the act done and official duty nor is
possible to lay down any such rule. Admittedly, the government officers
have acted pursuant to the complaint made by Anuradha Sharma and
other orders on record. Section 147 Cr.P.C. further suggest that in view of
law and order situation they have acted. In the counter affidavit filed by
Mr. Rajak which was ignored by the order of this Court, he has stated
that he has received Memo No.2672 dated 03.12.2013, however in the
affidavit he has turned down the said statement, which suggest that he
was being guided by the Pradhans.
18. In view of above facts and reasons, the Court finds that the
complaint case is maliciously lodged which are the subject matter in
Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and Cr.M.P. No.1011 of
2016 as a consequence of the F.I.R being filed against Anuradha Sharma
and even the government officials have not been spared by Pradhans.
The rule of law is prime concern to maintain a self-behaved society and
prima facie it appears that Pradhans have acceeded and false complaint
case being C.P.Case No.C-2954 of 2013 is filed which are subject matter
in Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and Cr.M.P. No.1011
of 2016.
19. Accordingly, the prayer made in the Cr.M.P. No.579 of 2016,
Cr.M.P. No.1008 of 2016 and Cr.M.P. No.1011 of 2016 are allowed, and
the entire criminal proceeding as well as the order dated 09.10.2015 in
connection with C.P.Case No.C-2954 of 2013, pending in the court of
learned Sub Divisional Judicial Magistrate, Ranchi are quashed.
20. Cr.M.P. No.579 of 2016, Cr.M.P. No.1008 of 2016 and Cr.M.P.
No.1011 of 2016 are allowed in above terms and disposed of.
21. So far as Cr.M.P.No.3385 of 2013 is concerned, for the
reasons disclosed hereinabove, the Court finds that no case of
interference is made out.
22. Accordingly, Cr.M.P.No.3385 of 2013 is dismissed. The
learned court will proceed in accordance with law.
23. Pending petition if any also stands disposed of accordingly.
24. Interim order passed in respective cases stand vacated.
25. The case record may be returned back to the learned court
concerned forthwith.
( Sanjay Kumar Dwivedi, J.)
SI/ A.F.R,
