S.M. RAQUIB Vs. SUBHAS KUMAR SINHA

JUDGEMENT

(1.) This application on behalf of S.M. Raquib, who was at the relevant time posted as the officer incharge of Ghosi police station within the district of Gaya, is for quashing of the criminal proceeding pending against him in the court below in case no. C 148 of 1971; T.R. no. 656 of 1973. This case appears to have arisen against him in the following circumstances. On 19.6.1971 the opposite party, Subhas Kumar Sinha, held a complaint petition before the Sub -divisional Magistrate, Jehanabad making these allegations. On 30.5.1971 polling of the Gram Panchayat election at the booth was going on. In that, the Presiding Officer's peon, Rajnandan Singh, was noticed helping a particular candidate by resorting to illegal acts. This aroused the feeling of the villagers there who protested to it. Upon that, this Sub -Inspector accused, who was in the camp of the aforesaid candidate being helped illegally by the peon, appeared on the scene and started abusing the villagers. He also went to the village with armed constables. When his such actions were objected to by the complainant's cousin, he was arrested by the Sub -Inspector along with another man. Hearing this, the complainant went to the Sub -Inspector and wanted to know from him the reason which had led him to arrest his cousin. At that, he (Sub -Inspector) assaulted him and made him sit there. This was followed in respect of another villager also. Thereafter, all these arrested persons were taken to the Dak Bungalow where the Sub -Inspector demanded a sum of Rs. 1000/ - from each of them and threatened them with dire consequences if they did not pay. Later, he received Rs. 575/ - as illegal gratification from the arrested Dwarika Mahto and released him. He also released another being an ill boy aged 15 years. The complainant as also his cousin were then taken to the police station and confined in hajat During night the complainant was brutally assaulted on chest and other parts of his body due to which he got ill and had to be treated in the Jehanabad Jail Hospital. After his release, Dwarika Mahto filed a petition against this Sub -Inspector before the Block Development Officer, Ghosi. At that, Sub -Inspector arrested him again when he was proceeding to Jehanabad to file a complaint against him and assaulted him. The Sub -Inspector thereafter maneuvered a false report from the election Presiding Officer against the complainant and others alleging highhanded acts on their part to disturb the poll. In the complain he requested the Subdivisional Magistrate to send for his injuries report from the jail doctor. The reason for the delay in filing the complaint was stated to be the complaint's detention in jail without bail from where be was released on 17.6.1971 on being bailed out by the Sessions Judge and, thereafter, this complaint.

(2.) After receiving the above complaint, the Subdivisional Magistrate examined the complainant on 22.6.1971 and referred the matter for enquiry to the Magistrate Mr. H.B. Singh Several dates passed, but he did not submit the report. On 23.11.1971, the enquiry was recalled from him and entrusted to another Magistrate. With him also this enquiry remained pending quite long. On three dates, i.e. 25.4.1972, 6.6.1972 and 16.5.1972 the case was adjourned awaiting receipt of the enquiry report and the accused did not appear in court. On the next date, i.e. 24.5.1972 the Magistrate Mr. Md. Slauddin, who is said to be acting for the Sub -divisional Magistrate on that day, summarily dismissed the complaint for the absence of the complainant on the previous three dates. On 21.6.1972 on behalf of the complainant a petition was filed before the Subdivisional Magistrate to recall that dismissal on the ground that it could not be legally made as the enquiry report was still awaited and the case on that day was not fixed for hearing. After having been addressed by the complainant's counsel the regular Subdivisional Magistrate in his cider dated 29.6.1972 cancelled that dismissal and restored that complaint and sent the enquiry back to the aforesaid enquiry magistrate. During his enquiry, as many as 12 witnesses were examined by him and he submitted his report dated 12.8.1972 saying that a prima facie case under Ss. 323/342 etc., of the Indian Penal Code had been made out against this accused and he should be summoned to take trial. On 26.8.1972, after perusal of that enquiry report and agreeing with it, the magistrate Mr. A.K. Sinha took cognizance in the case under Ss. 323, 342 and 500, Indian Penal Code against this accused and transferred it to another magistrate for disposal fixing 15.9.1972 as the next date. In the transferee court, on 15.9.1972, the complainant furnished his list of witnesses and requested the court to summon the accused through the Inspector -General of Police, Bihar. The magistrate granted this prayer and he was summoned through the Inspector -General of Police to appear in his court on 25.10.1972. Awaiting the report of that summons on him the case stood adjourned for some dates. In the meanwhile on 10.5.1973 the accused filed this application and on its admission, obtained stay of further proceedings in the case before the Magistrate.

(3.) Mr. Amar Singh appearing for the petitioner wants this criminal proceeding to be struck down on the following grounds. First, the petitioner in this matter had arrested the complainant during discharge of his official duties, and, as such, no prosecution can lie against him for any such act except with the previous sanction of the State Government as enjoined by Sec. 132 of the Code of Criminal Procedure, 1898, and in the absence of any such sanction, the prosecution stands vitiated ab initio. Secondly, the Magistrate, Mr. A.K. Sinha, who had taken the Impugned cognizance dated 26.8.1972, was not empowered to take that cognizance and for wants of his such jurisdiction, the cognizance so taken is void. Thirdly, when this complaint was summarily dismissed on 24.5.1972, the court did not possess any power to restore it again after cancelling that dismissal. The complainant's only remedy to revive the complaint was by means of a revision before the higher court and not by moving the magistrate to do it because after that dismissal that court had become functus officio.