UPENDRA SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two petitioners who have been implicated as accused in Complaint Case No. 706(C)/04 have prayed for quashing of order dated 27.4.2007 passed by the learned 1st Additional Sessions Judge, Circuit Court, Hilsa in Cr. Rev. No. 16/06 whereby he has dismissed the said criminal revision and has confirmed the order dated 9.3.2006 passed by Sri Lai Bahadur, Judicial Magistrate 1st Class, Hilsa, in the aforesaid case whereby he has taken cognizance under Sections 323, 341 and 379/34 I.P.C. According to the prosecution case based on the complaint petition filed by one Ranjit Kumar, impleaded herein as Opposite Party No. 2, that at around 4.30 P.M. on 17.12.2004 he was going to Patna by motorcycle and enroute accused, Upendra Sah, Officer -in -Charge, Ekangarsarai Police Station and Vijay Thakur intercepted him and the Officer -in -Charge allegedly took him to the Ekangarsarai Police Station and assaulted him with lathi whereas Vijay Thakur assaulted him with fists and slaps. It is further alleged that the accused persons had also abused his mother, Lalti Devi in filthy language whereas the Officer -in -Charge allegedly took away Rs. 10,000/ - from the complainant and Vijay Thakur took away his wristwatch, gold ring and cash of Rs. 3,500/ - and was falsely implicated in a case of rape by petitioner no. 2, Vijay Thakur with his daughter and remanded to custody. The instant complaint petition has been sent from jail to the Court of Additional Chief Judicial Magistrate, Hilsa who after examining the complainant on S.A. and the evidence of witnesses recorded at the enquiry under Section 202 Cr.P.C. took cognizance.

(2.) IT has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case due to enmity and alleged vendetta in order to defame them. In this connection it was sought to be submitted that Ekangarsarai P.S. Case No. 339 of 2004 registered under Sections 376, 452, 341, 323 and 427 I.P.C. was registered at 4.30 P.M. on 17.12.2004 consequent to Pammi Kumari aged 12 years, daughter of petitioner no. 2, Vijay Thakur, on allegedly being raped by the complainant herein on 16.11.2004 and again on 17.12.2004 the complainant attempting to commit rape and in the said case petitioner no. 1, Upendra Sah, happened to be the Investigating Officer. The said case after commitment to the Court of Sessions has been registered as S.Tr. No. 231 of 2005 wherein the petitioners and the prosecutrix have been examined apart from the other witnesses and the complainant herein has been convicted under Section 376 I.P.C. and sentenced to undergo R.I. for seven years vide judgment and order dated 21.8.2006.

(3.) ON the other hand, it was submitted by the Learned Counsel for opposite party no. 2 that the witnesses examined at the enquiry under Section 202 Cr.P.C. have supported the case of the complainant and since a prima facie case was made out the learned Magistrate was justified in taking cognizance. It was also submitted that when a person is arrested illegally and assaulted by the police and a prima facie case thereunder is made out then prior sanction under Section 197 of Cr.P.C. is not required and it cannot be made an issue since the act itself is arbitrary and beyond the capacity of the official duty of the policemen.