RAJESHWAR YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code'). It is directed against the order dated 14.12.2001 passed in Cr. Revision No. 478 of 2001 by the District and Sessions Judge, Rohtas wherein the learned Sessions Judge, had set aside the order dated 30.8.2001 passed by the Chief Judicial Magistrate, Sasaram dismissing the Complaint Case No. 411 of 2000 under section 203 of the Code.

(2.) FROM the facts of this case it appears that opposite party no. 2 had filed the aforesaid complaint case against the petitioner and others. As many as 12 accused have been named in this complaint petition. The petitioner, Rajeshwar Yadav has been named as accused no. 11. Various allegations have been made in this complaint petition against the accused persons. For the disposal of this application ) am not concerned with the details of the allegations. It will be sufficient to mention that in this case the Superintendent of Police, Rohtas as also the Officer Incharge of S.C./S.T. police Station, Dehri were also made accused along with the number of constables. On the receipt of this complaint petition the learned Chief Judicial Magistrate by his order dated 8.5.2002 sent this complaint petition to the Deputy Inspector General of Police, Sahabad Range (in short the D.I.G.) for enquiry and report. The D.I.G. by his memo no. 949 dated 17.5.2000 sought an explanation from the Superintendent of Police, Rohtas and this explanation was submitted vide his memo no. 3146 dated 5.6.2000 In this explanation he had referred to a decision of the Hon'ble Supreme Court dated 10.3.2000 passed in S.L.P. (Cri) No. 1072 of 1998.

(3.) ON behalf of the petitioner it has been submitted that before passing the impugned order in Cr. Revision No. 478 of 2001 the learned Sessions Judge had not given any notice to the petitioner to which he was entitled and without hearing him the order of dismissal passed by the learned Chief Judicial Magistrate could not have been set aside. The learned court below failed to consider that in a case like this mandatory compliance of the provisions of section 197 of the Code would be necessary in so far as the Police officers are concerned. In this connection reference has been made to two cases, namely, case of Bishwanath Singh vs. Birsai Bhagat [2000(2) P.L.J.R. 161] and the case of Dr. Ajay Kumar vs. Girja Nand Prasad [2000(4) P.L.J.R. 504 (H.C.)]. The learned Sessions Judge has failed to consider that if the act or omission complained of against a public servant is done by him while acting or purporting to act in discharge of his official duties then no action against him can be taken by any court as held in the case of N.C. Dhaundial vs. State of Bihar [1997(2) P.L.J.R. 754] and in the case of Naresh Mishra vs. State of Bihar [1997(1) P.L.J.R.1012].