ABDUL WAHAB ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Leave granted.

(2.) The appellant is a public servant and on 26-4-1993, the Sub-Divisional Magistrate asked for an explanation from him as to why the encroachment in question is not being removed notwithstanding the direction of the High Court. The said Sub-Divisional Magistrate by order dated 25th of June, 1993, appointed the appellant as a Duty Magistrate and one Shri Vinod Pal Singh as Senior In-charge Magistrate of the Police Force, who were required to remove the encroachment in question. The said appellant visited the encroachment site and requested the encroachers for removal of encroachment and on 16-7-1993 was able to remove the encroachment partially and reported the said fact to his senior officer, but on 17-7-1993, when the appellant along with armed force, reached the encroachment site, several miscreants armed with weapons, started hurling stone and as the situation became out of control, after giving due warning, the appellant was compelled to give order for opening fire and dispersed the mob. On account of such firing, one of the persons died and two others were injured and the appellant then sent a report to his senior officer about the incident. The son of the deceased, who is respondent No. 2, filed a complaint before the Chief Judicial Magistrate, alleging commission of offence by the appellant under Sections 302, 307, 380, 427, 504, 147, 148 and 149, IPC as well as Section 27 of the Arms Act. The Chief Judicial Magistrate by his order dated 24-11-1995, came to the conclusion that there is sufficient evidence available to establish that prima facie case under Sections 302, 307, 147, 148, 149 and 380 is made out against the accused and, therefore, he directed issuance of non-bailable warrants against the appellant and other accused persons. The Chief Judicial Magistrate was also of the opinion that the provisions of Section 197 of the Code of Criminal Procedure will have no application to the facts of the case. The appellant then moved the High Court under Section 482 of the Code of Criminal Procedure, praying inter alia that no cognizance could be taken without a sanction of the appropriate Government, as required under sub-section (2) of Section 197 of the Code of Criminal Procedure, when the appellant was discharging his official duty pursuant to an order of the Competent Authority. The High Court, however, without going into the merits of the matter and being of the opinion that all the questions may be raised at the time of framing of charge, disposed of the application filed by the appellant and hence the present appeal in this Court. It may be stated that there was a dispute between two sets of Mohammedan residents, one set complaining against the other about the encroachment of the property belonging to the mosque and the appellant as the Circle Inspector, on the basis of the said complaint had inquired into the matter and on the basis of a detailed inquiry, a finding had been arrived at, that the situation at the site was volatile for which on 27th of March, 1991, order under Section 144, Cr. P. C., had been promulgated. Thereafter the appellant had made several requests to the encroachers for removal of the encroachment and ultimately the Sub-Divisional Magistrate, Aurangabad by his order dated 25th of June, 1995, appointed the appellant as Duty Magistrate for use of Police Force to remove encroachment in question. When the present appeal had been listed before us, a judgment of this Court in the case of Birendra K. Singh v. State of Bihar, reported in JT 2000 (8) SC 248, had been placed before us and it was contended that the question of applicability of the provisions of Section 197, Cr. P. C. can be raised at the stage of framing of charge and, therefore, the impugned order of the High Court does not require any interference by this Court. The aforesaid decision no doubt supports the contention of the learned counsel, appearing for the respondent to a great extent but as we doubted the correctness of the aforesaid enunciation of law, the matter had been referred to a Three-Judge Bench and that is how we are in seisin of the matter.(Sic) debarred from taking cognizance of the offence except with the previous sanction of the competent authority, if it is established that the offence alleged had been committed by him while acting or purporting to act in discharge of his official duty, there is no justification for the accused to wait till the stage of framing of charge is reached and the High Court, therefore, was in error in not exercising the jurisdiction vested in law. On the facts of the case, the learned counsel submitted that the appellant being present at the place of occurrence pursuant to an order of the Magistrate with the Police Force and was required to remove the encroachment in question and he ordered for firing when the situation went out of control, while discharging the duty of removal of encroachment and pursuant to such firing a person died and two persons were injured, the irresistible conclusion is that the use of police force related to the performance of the official duty of the accused-appellant, within the meaning of Section 197 of the Code of Criminal Procedure and consequently, without prior sanction of the competent authority, the Court could not have taken cognizance of the offence on the basis of a private complaint.

(3.) Mr. S. K. Sinha, the learned counsel appearing for the complainant-respondent as well as Mr. B. B. Singh, the learned counsel appearing for the State of Bihar, fairly stated that the judgment of this Court in Birendra K. Singh's case (supra) has been too widely stated and there is no requirement for the accused to wait till the stage of framing of the charge is reached for raising the contention with regard to the applicability of Section 197 of the Code of Criminal Procedure. So far as the applicability of the provisions of Section 197 of the Code of Criminal Procedure is concerned, in the facts and circumstances of the present case, though Mr. B. B. Singh, appearing for the State of Bihar submitted that the gravamen of the allegation made in the complaint unequivocally indicate that the appellant was discharging his official duty when he directed for opening of fire to control the mob and, therefore, the provisions of Section 197 of the Code of Criminal Procedure would apply. Mr. Sinha, the learned counsel appearing for the complainant-respondent on the other hand contended that the act complained of cannot be held to be in discharge of official duty of the appellant and, therefore the provisions of Section 197 of the Code of Criminal Procedure will have no application.