MATHURA RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) This case has a chequered career as parties in this proceeding who hold office of Headmaster and other officials have been drawn, even to courts for some reason and other. Shorn of unnecessary details, facts material for consideration of the issue agitated at bar can be narrated with brevity.It was alleged that as petitioner, the District Education Officer was arrayed as party in a civil proceeding by opposite party Nb. 2, former forging documents, purporting to appoint Bacchu Narain Singh, as Secretary and Krishnanand Singh as In-charge Headmaster of Ram Lakhan High School, Baltara, sent a letter to Director, Secondary Education, Patna. When opposite party No. 2 approached the District Education Officer, the petitioner, for rectification of the wrong committed by him in the official letter contrary to the facts existing, the later assured him for cancellation of the order, and eventually when he visited his residence on 16.6.1999 on his call, for correction of the wrong committed, he was abused and pushed out using criminal force by him. A petition of complaint with these accusations had been laid before the Chief Judicial Magistrate, Khagaria who in his anxiety to ascertain bona fide of allegations got an enquiry held as contemplated under Section 202 of the Code of Criminal Procedure (in short "the Code"). Five witnesses were examined during enquiry, pursuant to which cognizance under Sections 323 and 420 of the Indian Penal Code was taken to put the petitioner on trial. Before charges could be framed in the complaint case, the complainant examined four witnesses and at this juncture, the petitioner moved this Court for discharge from proceeding, as contemplated under Section 245 of the Code. The learned Magistrate in seisin of the proceeding having given due consideration to the evidences placed on the record and also the contentions raised at bar, while negativing prayer for discharge, came to a finding that the evidences were sufficient for frarning of charges and the said order is impugned in this revision.

(2.) Primarily two fold contentions were raised on behalf of the petitioner to assail the finding recorded by the Court below and firstly it is sought to be urged that taking the prosecution version to be true on its face value, whatever was done by the petitioner that was done in course of discharge of his official duty and hence prosecution of the petitioner without valid sanction had initiated the entire proceeding. Other contention raised on behalf of the petitioner was that even the evidences placed on the record do not warrant framing of charges which were quite motivated and mala fide for which opposite party No. 2 had brought cases even before the Court of civil jurisdiction. Reliance on catena of decisions was placed by learned counsel for the petitioner and I consider it proper to give due con- sideration to them about applicability of the ratio decidenti decided in those cases. Reliance was placed on a decision of this Court reported in , Gauri Shankar Dubey V/s. State of Bihar and another.,2000 2 PLJR 47In the case cited at bar, the venue of the offence of the accused where he accosted the complainant was a general passage of the office and in that backdrop in a petition brought under Section 482 of the Code, the prosecution was quashed. Needless to say that the venue of the place of. occurrence as suggested in the petition of complaint is residence of the petitioner and that apart, the petitioner has come before this Court in revision. The other decision cited at bar was , Pancham Lal V/s. Dadan Singh., 1979 CrLJ 1018In that case, the petitioner had invoked jurisdiction of Court under Section 482 of the Code, and that apart, the facts of the case were different and distinct, as in that case the accused as a public servant while having been deputed on spot to control situation in tense atmosphere of rival claims of the parties for harvesting crop flung in abuse, towards leader of one group. It was accordingly held that accused was acting in discharge of his duties while he uttered abuses. The other decision cited at bar was , Sri Bali Ram Singh V/s. State of Bihar,1989 BBCJ 400 and in that case too, the accused a Superintending Engineer had gone to inspect a site under instruction of the superior officer where he was abused and threatened. Regard being had to the facts of the case, the Court held that sanction was necessary for prosecution of the accused. Reference can be had to a decision of the Apex Court reported ih S.B. Saha and others V/s. M.S. Kochar, 1979 AIR(SC) 1841 where the accused had seized goods and was holding them in trust in discharge of their official duty but in dishonest breach of that trust, criminally misappropriated those goods. Hence sanction was considered to be necessary. In a case reported in (SC), Abdul Wahab Ansari V/s. State of Bihar and another, 2001 1 EastCriC 50the ratio decidendi was that the question of sanction can be considered at any stage of the proceeding, and similar was the ratio decidendi in the case reported in , Suresh Kumar Bhikamchand Jain V/s. Pandey Ajay Bhusna and others., 1998 1 SCC 205 In a case reported in Akhilesh Prasad V/s. Union Territory of Mizoram, 1981 AIR(SC) 806 reference of which has been cited at bar. In a matter of appeal, the apex Court in given circumstances came to conclusion that sanction was necessary and question as to whether accused committed offence during discharge of official duty was left undecided. In that case CRPF personnels had fired shots causing injuries to some persons. In a case reported in , Bakshish Singh Barar V/s. Gurmej Kaur and another, 1987 4 SCC 663a reference of which has been cited at bar, observations were made by Apex Court that even if it is found that acts complained of were done in discharge of the official duties and sanction had been obtained, in all cases the trial should not be stayed at the preliminary stage because that will cause great damage to the evidence. Reference can be had to a decision of the Apex Court reported in , State of Bihar V/s. Kamla Prasad Singh and others., 1998 5 SCC 690 Learned counsel drawing my attention to the decision would urge that in that case even when the accused had committed assault, the Court considered sanction to be necessary. However I find that in the case cited at bar the enquiry held by Magistrate, led to a finding that there was no credible material to show that the accused had either abused or assaulted the wife of complainant, and hence it was considered that whatever was done, was done while discharging or purporting to discharge official duty. Needless to say that in case under consideration, a due enquiry as contemplated under Section 202 of the code had been carried out by the Magistrate who on being satisfied had taken cognizance of the offence and before charges could be framed, the opposite party had examined four witnesses who with all consistency had endorsed the accusation which finds place in the petition of complaint. Though plea of alibi had also been taken by the petitioner, rightly, this issue cannot determined at this stage of the proceeding, which can be well thrashed when evidences are led at trial. Reference can be had to a recent decision of the Apex Court reported in , Raj Kishore Roy V/s. Earnleshwar Pandey and another, 2002 6 SCC 543which is a larger Bench of three Judges, in which observations were made by the Court that question whether accused acted in course of performance of his duties and/or whether the defence was pretended or fanciful, could only be examined during the course of trial after giving an opportunity to both the parties to establish their case, and that apart, at this stage of the proceeding, the only consideration of the Court was as to whether there was sufficient grounds for framing of charges against the accused and the probable defence that can be taken at trial, was not material consideration, and that being so, finding no merit, revision is dismissed. Observations made herein are, however, only for decision of the issue raised in this revision, which shall not prejudice the parties at trial.