Murari Lal Sharma vs The State of Bihar and Another

Ghanshyam Prasad, J.—Heard. This is an application u/s 482 Cr.P.C. to quash the order of cognizance dated 3.8.2005 passed by Judicial Magistrate, Sitamarhi in Complaint Case No. 61(C) of 2003 as well as the entire proceeding as also its revisional order dated 23.11.2005 passed by Sessions Judge in Cr. Revision No. 184 of 2005.

On the basis of the complaint lodged by opposite party No. 2, aforesaid complaint case was instituted against the petitioner. The same was enquired u/s 202 Cr.P.C. and ultimately, the learned Magistrate took cognizance against the petitioner u/s 326 I.P.C.

According to the allegations, the opposite party No. 2 was running gas stove, pressure cooker etc. repairing shop. He had repaired some articles of the petitioner, who is a police personnel. On the alleged date of the occurrence, the opposite party No. 2 demanded his repairing charges upon which the petitioner badly assaulted him and also implicated him in false criminal case. The opposite party was treated by the doctor but in spite of that, his eye became damaged.

It is submitted that the entire case is false and baseless. Opposite Party No. 2 was found in possession of stolen vehicle and when police tried to apprehend him he attempted to run away. In course of it, he received injury near the eye due to dash against to wall. It is further submitted that the medical report (Annexure-5 series) did not support the allegation of Section 326 I.P.C. The report (Annexure-5 series) itself would go to show that there is no any loss of vision. Both eyes were found normal. In spite of that, the learned Magistrate has taken cognizance u/s 326 I.P.C, which is illegal and bad in law.

The other submission is that the documents would go to show that the opposite party No. 2 received injury in course of arrest in connection with a criminal case and, therefore, the prosecution of the petitioner who is police official is hit u/s 197 Cr.P.C. as no prior sanction for prosecution was obtained by the competent authority of State Government.

On perusal of the impugned order dated 3.8.2005, it would appear that the finding of the learned Magistrate itself is contradictory. In last para of his finding he himself has stated that the medical reports submitted by the complainant would go to show that there is no question of damage of ratina or loss of vision by the injury caused. In spite of that, he has taken cognizance u/s 326 I.P.C. Under the provision of Section 326 I.P.C, a man can be prosecuted if he commits any grievous injury by any dangerous weapon or means like poison, corrosive or explosive substance. In the instant case, there is neither any such allegation nor is there grievous injury found by the doctor upon the opposite party No. 2. Therefore, taking cognizance u/s 326 I.P.C, is quite illegal and bad in law.

So far other submission is concerned, the documents filed by the petitioner would suggest that actually the opposite party received injury in course of arrest in connection with criminal case bearing Dumra P.S. Case No. 188 of 2002. The nature of the injury appears to be simple. In other word, injury if any, was caused, in due discharge of official duty. Therefore, the petitioner appears to be protected u/s 197 Cr.P.C. Thus, having regard to the facts and circumstances, this application is allowed and the entire prosecution arising out of Complaint Case No. 61 (C) of 2003 is hereby quashed.