KESAR DEV Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge, Sikar, with a recommendation that the order of the Munsiff-Magistrate, Sikar, dated 4-4-72, taking cognizance against Kesar Dev Prosecuting Inspector under section 217, Indian Penal Code upon a Complaint filed by Shri Gir Raj Prasad Additional Munsiff Magistrate, Sikar, may be quashed.

(2.) The reference arises under the following circumstances :

(3.) I have heard the arguments advanced by Mr. S.S. Bhandawat for the State and Mr. N.L. Tibrewal for Kesar Dev and perused the explanation submitted by the learned Munsiff-Magistrate. Sec. 217, Indian Penal Code deals with disobedience on the part of a public servant in respect of official duties. The dereliction of duty must be committed in the discharge of the functions of the public servant concerned. Before a person can be proceeded against under this section, there must be some material to show that there was a direction of law as to the way in which the person was to conduct himself as such public servant and that he deliberately disobeyed any such direction of law intending thereby to save or knowing it to be likely that he would thereby save any person from legal punishment or subject him to a less punishment, to which he was liable or that he would save some property from forfeiture or a charge to which it was liable by law. It must also be shown that the direction which the public servant knowingly disobeyed was a direction to be found~in some positive statute or some rules or regulations which have the force of law. None of the aforesaid ingredients are present in the instant case. The learned Additional Munsiff-Magistrate ought to have called for the Roznamcha from the police station concerned if it was not produced before him by Shri Kesar Dev. It appears that the' Additional Munsiff Magistrate took no steps to compel the production of the Roznamcha before him. He could issue a summons or a written order under sub Sec. (1) of Sec. 94 of the old Code Criminal Procedure to the Station House Officer or to any other person in whose possession or power such document was believed to be requiring him to attend and produce it in the court. It appears from the record that he failed to exercise the powers given to him by Sub-Section (1) of Sec. 94, old Code Criminal Procedure Shri Kesar Dev was a Prosecuting Inspector only whose duty was to conduct the case on behalf of the prosecution. The required Roznamcha was not in his possession and so it could not be said that he knowingly disobeyed any direction given to him by the Additional Munsiff Magistrate. The order-sheet of the Additional Munsiff-Magistrate dated 3-4-72 clearly reveals that a report made by the Prosecuting Inspector was submitted to the Additional Munsiff-Magistrate by the P. S. I. that the required Roznamcha was not available in the police station as it had been weeded out. Under these circumstances, the Additional Munsiff-Magistrate committed an error in filing a Complaint against Shri Kesar Dev. The learned Additional Sessions Judge, Sikar, has given out cogent reasons in support of his reference, with which I fully agree and I do not think it necessary to reproduce them here. Suffice it to say that the complaint did not disclose any offence under Sec. 217, Indian Penal Code or any other law.