SUBODH KUMAR THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application has been filed for quashing the entire proceeding on the basis of the order, dated 11.4.2004 passed in Complaint Case No. 814C/2004 by the Chief Judicial Magistrate, Bhojpur by which process was issued against the petitioner and one Babban Yadav for the offences under sections 364, 302, 218 and 120B of the Penal Code.

(2.) ON 4.7.2004 a case was instituted by the petitioner who happened to be the Officer Incharge of Tarari police station. In the said case it is said that the petitioner along with several other Havildars was moving in the village to round up gang of criminals belonging to the group of Banke Bihari Yadav. The police party could not find the criminals and were returning back when they saw two persons sitting on the side of the road. The petitioner challenged them whereupon it is said that the two persons took out their revolvers and began to fire on the police party. The petitioner was hardly able to save his life. In retaliation the petitioner is said to have fired which is said to have hit Kameshwar Paswan in the back. The other co-accused Rajendra Yadav was caught on the spot and was arrested along with a country made pistol. In the F.I.R. itself, it has been disclosed that Rajendra Yadav is accused in as many as sixteen cases.

(3.) COUNSEL for the complainant-opposite party no.2 relies on certain decisions and submits that the killing of a person cannot amount to an act done in discharge of an official duty. On reading the F.I.R. it is apparent that the petitioner was on duty while he was moving in the village in pursuance of certain information he had got with respect to gathering of criminals in a wine shop. In the process of search, the petitioner and others came across certain persons who fired on the petitioner which resulted in a counter firing. The act aforesaid of counter firing was not done with intention to kill anyone, nor had the petitioner and others gathered for the purpose of committing a crime. The question, therefore, is whether the petitioner was doing an act which was beyond the scope of his official duty? This aspect of the matter should be tested firstly by the department concerned in order to determine whether the petitioner was within for four-corners of performing his duty.