AMIR ULLAH KHAN Vs. ANAND CHANDRA MISHRA

JUDGEMENT

(1.) THIS is a petition under Section 482 Cr. P. C. claiming for quashing of prosecution against the petitioners, lodged by respondents on complaint filed by him in the Court of C.J.M., Rewa registered vide Cr. Case No. 158/97. The C.J.M. had taken cognizance of offence u/s 2941. P. C. against petitioner No. 1 Amir Ullah Khan only by order dt. 30.6.1997. The complainant respondent approached the Session Court, Rewa in a revision petition and petitioner No. 1 Amir Ullah Khan also approached that Court against that order. The complainant had prayed that all the persons against whom complaint has been filed should be proceeded against and tried, while Amir Ullah Khan petitioner urged that there was no offence disclosed even against him and in any case he was acting in discharge of his duty at the time of alleged incident and in his capacity as public servant. So without any sanction u/s 197 Cr. P.C. from the concerned authority, he could not be prosecuted. The Court of 4th Additional Sessions Judge Rewa in Cr. Revision No. 143/97 by order dated 25.3.1998 dismissed the revision petition of petitioner No. 1 Amir Ullah Khan, while partly accepted the petition of the complainant directing that the cognizance be taken against Amir Ullah Khan for offence u/s 352 I.P.C apart from section 294 I.P.C. and further that the cognizance should also be taken against the petitioner No. 2 Dr. D.S. Saxena for those very offence. After this order, the present revision petition was filed on 13.4.1998.

(2.) BOTH the counsel have been heard at length and record has been perused by this Court. In brief the complaint was filed by the complainant because while he was taking examination for first year of LL.B in the year 1997 at Govt. Thakur Ranmat Singh College, Rewa, had presented himself for the paper of legal English at that examination centre on 16.5.1997. He was not allowed to take the examination and forced to out of examination hall by all the respondents who were projected as accused, including the present two petitioners. He claims that he was entitled to offer examination on that date, although he had not initially offered to take the examination in that paper, but, on 14.5.1997 these officers had declared that those who wanted to offer examination of legal English could do so by deposit Rs. 30/ - as fee. So on that day i.e. on 14.5.97 after his examination for other papers, he gave Rs. 30/ - to particular clerk of the college who lateron gave him a receipt pertaining to the deposit of Rs. 30/ - for that paper. On 16.5.1997 he presented himself in the examination Hall and took a particular seat. Then question paper was given to him and blank answer sheet was also given to him and he started taking the examination. At that stage, the petitioner No. 1 approached saying that he had not offered that paper nor had deposited the money and he could not be allowed to take that examination, but, he insisted that he had deposited the money and was entitled to take the examination. The matter was reported to petitioner No. 2 Dr. D.S. Saxena who was the Principal and petitioner No. 1 Amir Ullah Khan was the Superintendent of the examination in that examination Hall. They, however, ignored the plea of the complainant respondent and according to him they forcibly took away his paper and answer book and asked him to go out. He was alleged that they used indecent language to him. Even the other respondent (against whom the petition was dismissed) had allegedly joined hand in ousting him from the paper. He was in fact a Government employee as an engineer in the city and was taking LL. B examination as per the rules of the university. He filed the complaint alleging various offences including those of section 294, 352 I.P.C. and many others.

(3.) THE contention of the petitioner's counsel is that neither the order of the Magistrate taking cognizance nor that of the Additional Sessions Judge, discloses if any particular abusive words or any obscene words were used by these petitioners towards the complainant and the general phrase that 'obscene words were used' could not be accepted as evidence. So in fact there was no material to infer commission u/s 294 I.P.C. Secondly, it is argued that so far debarring the accused from taking the examination is concerned, the petitioner No. 1 as Superintendent of the examination acting under his duty as public servant had come to the conclusion that the complainant was not entitled to take examination as he had no complied with the conditions and had not offered paper and had not deposited the fees. So, he had a right to exclude him from the examination, being an unauthorized person. This inference is clear from the allegation of the complainant that he was acting in discharge of his duty. Petitioner No. 2 Dr. D.S. Saxena being Principal of the College had agreed with this decision. So their act in excluding or debarring the complainant from taking the examination, was in discharge of their duties and in any case even considering that there is a dispute about right of the complainant to appear in that examination, these petitioners accused were acting under colour of discharge of their duties bona -fidely. So they could not be prosecuted without sanction u/s 197 Cr. P.C. from the competent authority.