NAGWANT SAHAY Vs. DWIFE

JUDGEMENT

(1.) This is an application for further enquiry into four complaints which have been dismissed, and comes before me on a difference of opinion between two of my learned colleagues. In each case the complainant is a student in the High School at Garhwa, and the material allegations in the four complaints are similar. It will, therefore, suffice to set out one of these complaints here: The humble petition of complaint of the complainant most respectfully sheweth: (1) That the accused No. 1 is at present the Deputy Commissioner and accused No. 2 is at present the Superintendent of Police, Palamau and accused No. 3 is the physical instructor Of the Govind High English School, Garhwa, where the complainant is a student. (2) That on 3.3.1945, the accused No. 3 brought the complainant and six other boys of the school to the bungalow of the accused No. 1.at Daltonganj where accused No. 2 was also present for some reason which the complainant did not know at that time. (3) That after some consultation between the three accused the complainant was made to outstretch himself with his feet on the ground and body on a raised platform in the bungalow of the accused No. 1 and remain in this position exposing his buttocks while accused No. 2 gave 7 strokes with walking stick supplied by the accused No. 1 in the manner given in the next para. (4) That the accused No. 2 took the stick, retreated a few paces, ran forward and hit the complainant with the stick on his exposed buttocks putting all the strength, weight and momentum he could in the stroke and this was repeated six times more on the complainant when the complainant fainted. He regained his consciousness after few minutes. (5) That thereafter similar treatment was meted out to other boys by accused No. 2 in the same manner. (6) That terror-stricken and helpless as a sacrificial animal the complainant and the other students could not do anything. (7) That overwhelmed by intense physical pain; and mental agony the complainant could not do anything that day which he had to pass on bed being unable to walk at all. (8) That next day the complainant tried to get his injuries examined by a doctor and. obtain a certificate but as by that time the report of the incident had spread through the town no doctor was ready to do so, though several were approached; it is, therefore, fit and proper that your honour should examine the complainant and make a note of his injuries on the record or order some doctor to examine him in Court and give a certificate for which the complainant is ready to bear the cost. (9) That the complainant had come to know that the matter was in connection with a fracas which took place between a circus party and some unknown men at Garhwa sometime ago; the circus people had lodged a F.I.R. making false allegations against the students of the Govind High School without naming anyone in particular; there was a test identification in course of which the complainant was not even identified; and as a matter of fact he never took any part in the incident at Garhwa. (10) That the complainant had no idea that they were being taken to be caned when he was taken to Daltonganj. (11) That the accused have caused severe voluntary hurt to the complainant in an inhuman manner and are punishable under Section 323, I.P.C. It is therefore prayed that the accused may be summoned and dealt with according to law. And AS in duty bound your petitioner shall ever pray.

(2.) In each case the persons complained against were Mr. Ife, the Deputy Commissioner of Daltonganj, Mr. Treasure, the Superintendent of Police of Daltonganj and Mr. Harihar Tewary, the physical instructor at the High School at Garhwa. The complainants were dismissed on the ground that sanction for the prosecution of the accused had not been obtained under Section 197, Criminal P.C. The Judicial Commissioner has sent the cases back to the Magistrate for examination of the complainants and afforded them an opportunity of obtaining sanction for the prosecution. Section 197 is one of a group of Secs.in Part B of Chap. XV of the Code. The heading of Part B is "Conditions requisite for Initiation of Proceedings . Section 190 empowers certain Magistrates to take cognizance of an offence upon receiving a complaint of the facts constituting the offence, or upon a police report, or upon an information received from any person other than a police officer, or upon the Magistrate's own knowledge or suspicion that the offence has been committed. When the Magistrate acts on his own knowledge or suspicion, the magistrate is empowerd by Section 191 to commit the case to the Court of Session or transfer it to another Magistrate; and Section 192 empowers certain Magistrates to transfer to a subordinate Magistrate any case in which cognizance has been taken by any of them.

(3.) Section 193 debars the Sessions Court from taking cognizance of an offence except where the case is committed to it by a properly empowered Magistrate. Section 194 deals with the power of the High Court to take cognizance of an offence upon commitment or upon information by the Advocate-General. Section 195 debars any Court from taking cognizance of certain offences except upon the complaint of certain public servants or Courts. Similarly, Section 196 debars any Court from taking cognizance of certain offences except upon a complaint or order of the Provincial Government or of some officer empowered by that Government. There is a similar bar to the power of a Court to take cognizance of the offence of criminal conspiracy under Section 196A. Section 196B contains special provisions relating to preliminary enquiries with regard to offences mentioned in Section 196 and 196A. Secs.198 to 199A debar a Court from taking cognizance of certain offences except upon the complaint of specified persons. The material provisions of Section 197 are: ...When any Magistrate or when any public servant who is not removable from his office save by or with the sanction of a provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction. of the Governor-General in certain cases and the Governor of the Province in certain other cases.