S N DUBEY Vs. DEVI KANT JHA

JUDGEMENT

(1.) This is a reference under Section 438 of the Code of Criminal Procedure (hereinafter to be called 'the Code') made by the District Magistrate, Patna recommending to set aside the order dated 28-10-1967, passed by Mr. R. N. Mahraj, in a case instituted on a complaint filed by Devi Kant Jha.

(2.) There is a Math at Gokhulpur within the jurisdiction of Barh Subdivision of the district of Patna. Swami Shri Harikrishnanand was its Mahantha. On his death there arose a dispute for the gaddi resulting in some criminal cases. In that very connection Devikant Jha filed a petition of complaint before the District Magistrate, Patna alleging that Shri Bachan Singh, Shri S. N. Dubey, Inspector of Police, Bakhtiarpur, Shri D. N. Chaudhary, Officer-in-Charge, Harnout Police Station, Shri D. N. Tripathi, Magistrate, First Class, Patna and others including Havildar and constables named therein, had gone to the Gokulpur Math and committed rioting and murder by opening fire on servants of the Matha. The District Magistrate sent the complaint petition to the Subdivisional Magistrate, Barh for disposal. The Subdivisional Magistrate examined the complainant on solemn affirmation and referred the matter for inquiry hy Shri A. K. Singh, Magistrate, First Class, Barh. It appears that before the Subdivisional Magistrate an objection was raised by the accused persons that the institution of the case against the police officers without sanction of the State Government was barred under Section 132 of the Code and that the prosecution of the Magistrate was bad for want of sanction under Section 197 of the Code. This objection was overruled by the Subdivisional Magistrate. As against this order the accused persons went in revision to the Sessions Judge. The revision was rejected at that stage. It further appears that before the Inquiring Magistrate also an objection regarding want of sanction under Sections 132 and 197 of the Code was raised. The learned Magistrate rejected' it and he made a report on 31-1-1967, to the effect that the Police had not acted with restraint in firing. On receipt of this report Shri R. N. Maharaj passed the following order on 28-10-1967: "Thus, in view of the facts and circumstances noted above I feel it justified to take cognizance against the accused persons. Hence cognizance is taken against all accused persons Under Sections 120B/302/307/325/323/ 147/148 and 149, I. P. C. and the case is transferred to the court of Sri B. N. P. Sri-vastava, Munsif Magistrate 1st Class, for favour of disposal. Put up on 31-10-67 before the court concerned.' It is to set aside this order that this reference has been made by the District Magistrate.

(3.) In support of the reference Mr. Tarakant Jha appearing for the Police officers and the Magistrate and Mr. J. N. Verma appearing for other accused persons have argued the case. They have submitted that the order is fit to be set aside on the following grounds: (1) Shri R. N. Mahraj had no jurisdiction to pass the impugned order. (2) The prosecution of the Police Officers and the Magistrate is bad for want of sanction under Sections 132 and 197 of the Code.