KIRAT YADAV Vs. DOMAN RAJAK

JUDGEMENT

(1.) This application is directed against the impugned order by which the complaint of the petitioner has been dismissed under Section 203 of the Code of Criminal Procedure (hereinafter called 'the Code').

(2.) The complainant petitioner had filed a complaint naming the members of the opposite party as accused for an offence of murder. Opposite Party No. 1 was at the relevant point of time Sub-Inspector of Police at Mansi Out Post, opposite party No. 2 was the Inspector of Police Khagaria and petitioner No. 3 Bashir Ahmad was the ASI (Jamadar) at Khagaria Police Station. According to the case of the complainant, on 31-5-1980 at about 3.30 p.m., the complainant alongwith one Sharan Yadav was returning to his village on a horse back from Nawadah where they had gone to the house of cousin of Sharan Yadav. When they had reached near village Garhiya, they saw the police officers, namely the opposite party alongwith few other constables approaching towards them. When the police party saw the complainant and Sharan Yadav, someone amongst them shouted from the jeep. Out of fear the complainant and Sharan Yadav tried to run away through fields. They had been chased by the police party. The complainant and Sharan Yadav stopped their horses and got down. The opposite party enquired about the names of the complainant and Sharan Yadav. When it was disclosed to the police party and also when it was made known to them that they belonged to village Chukti, the opposite party began to assault Sharan Yadav with stick. Opposite Party No. 2 Sheo Shankar Prasad spoke that the complainant and Sharan Yadav were men of Ram Sharan Yadav (M.L.A.) and further said that it was the order of the Assistant Superintendent of Police to shoot the men of Ram Sharan Yadav wherever they could be found. On hearing this, the petitioner and Sharan Yadav tried to run away, but a constable caught hold of the petitioner and when Sharan Yadav tried to fleed away, opposite party No. 1 fired five rounds at him as a result of which he fell down and died. The petitioner and the dead body of Sharan Yadav were brought to the Khagaria Police Station on the said police jeep and the complainant petitioner was sent to jail. Further according to the allegations, a criminal case was going on between Ram Sharan Yadav and the Assistant Superintendent of Police, Khagaria-Shafi Alam, as Shafi Alam had shot dead Har Ballav Yadav the younger brother of Kam Sharan Yadav, and at the time of the occurrence the said case was still pending. The complainant was confined to jail and could not file the complaint then, but the same was filed on 11-6-1980. After filing of the complaint, the complainant was examined on solemn affirmation and two witnesses were also examined. Thereafter the impugned order has been passed.

(3.) It appears that the complainant had raised an objection that the complaint was dismissed behind his back, and also motivatedly two of his witnesses had not been examined. Learned Counsel for the complainant has contended that it would appear that the complainant had supported the case and that being so the dismissal of the complaint was contrary to law. Further it has been stated that the Court below has committed an error in holding that sanction for prosecution as contemplated under Section 173 of the Code of the opposite party had not been obtained.