N D BURMAN Vs. INDRAMANI PATHAK

JUDGEMENT

(1.) THE petitioner has come forward with a prayer that the proceeding in Criminal Complaint Case No. 541 of 1979 under Section 120B/342 I.P.C. pending in the Court of the Chief Judicial Magistrate, Ballia be quashed.

(2.) IT is maintained that apart from the fact that the matter of release from Jail, etc., of any prisoner is handled by the Jailor and not by Superintendent of Jail who is the petitioner, cognizance of the complaint and the offence would not be taken in view of the bars provided by Sections 196 and 197, Cr. P.C. For a proper decision it would be necessary to see the complaint itself to ascertain whether the allegations are such as would attract the provisions contained in Sec -lions 196 and 197, Cr. P.C. A copy of the complaint has been annexed as Annexure I. It recites that opposite party 1 who happened to be complainant was arrested by Kotwali Police on 16 -6 -1979, under Section 309, I.P.C., and was produced before the Chief Judicial Magistrate, Ballia, along with the other co -accused and was remanded to jail custody. The remand was operative up to 29 -G -1979. It is further stated that opposite party 1 and others fell ill during the period of remand and they were then admitted in District Hospital on 18 -6 -1979. They were kept in the hospital up to 3 -7 -1979 i. e., beyond the period of remand, in pursuance of a conspiracy in between petitioner, Dr. Burman, who then happened to be the Superintendent of Jail by virtue of his office as officiating C. M. O. and the then Jailor District Jail, Ballia, namely, Sri R.A. Ansari. The complaint has been filed against these two persons under Section 342/120 I.P.C. The allegation made in the body of the complaint itself would also disclose only offence under Sections 342, I.P.C. and 120 -B, I.P.C.

(3.) AS regards prosecution under Section 342, I.P.C., provisions under Section 197, Cr. P.C., again stands as a complete bar for taking of cognizance of that offence. Section 197(1)(a) and (b) run as follows: