Peerzada Mohd. Muzaffar vs Ab. Rashid Rather and Others

Ab. Qadir Parray J.

This is an application u/s 561-A Criminal Procedure Code for quashing the proceedings of a criminal Case No. 42/A tilled Abdul Rashid Rather

v. Muzaffar Ahmad Shah, Executive Engineer, Left River Circular Road Division, Srinagar. These proceedings have been initiated against the

petition by the complaint alleged to have been filed by the non-applicants/respondents before me as complainant in the court of Judicial Magistrate,

Ist Class, Vailoo under Sections 420, 506, 161 RPC.

The allegations mentioned in the complaint against the accused/petitioner before me make out a case prima facie of which cognizance seems to

have been taken by the Judicial Magistrate, who issued the process against the person of Muzaffar Ahmad Shah petitioner and one Moti Lal

Raina, Camp Clerk, Public Works Division, Daksum.

The averments made in the complaint are specific and allegations made therein are that the complainants were allotted some work in the area

which they completed, but the accused No. 1 i.e. petitioner before me asked and received Rs. 2000/- as illegal bribe and four tins of edible oil and

three quintals of rice. Similarly accused No. 2 had taken Rs. 15(X)/- from them. After the complainant party completed the work, they asked the

petitioner/accused No. I to pass the bill of payment and to check the work on spot and for this the Executive Engineer asked for Rs. 2000/- more

as illegal gratification. When the complainant did not do so, the accused hurled threates on them and also allege the complainants were deceived by

the accused-party and soon.

On the above allegations made by the complainant before the Judicial Magistrate in writing and supported by the statement of the complainant

and two witnesses namely Mohammad Khalil Teli and Manzoor Ahmad Teli, the Magistrate was but to take cognizance of the averments made by

the complainants and he has taken the cognizance of the offences which were prima faciely made out before him. The trial Magistrate issued

process and in response to the process the person of accused No. 1 has appeared before the learned Magistrate through counsel Ali Mohammad

Magray and was bailed out and the case was posted for 19-9-1987 and this application u/s 561-A Cr. P.C. has been moved before this court

only to thwart the process of the court and the pleading that the court has not acted in accordance with law is not well founded. No sanction

whatsoever is required for lodging a complaint of such illegal gratification under the charge by a public officer for which an offence under the Penal

Code is made out and the complaint is being filed by the complainant before the Magistrate, no sanction is required for such prosecution and the

offence u/s 161 RPC as per schedule of the Criminal Procedure Code is shown as an offence which is triable by the court of Session or by Judicial

Magistrate, Ist. Class and imprisonment provided for such an offence is either imprisonment for three years or fine or both.

So the contention raised by the petitioner in his petition that the offence is triable by Special Judge, Anti-Corruption only, is not well founded

and well conceived.

The plea advanced in the petition that a public servant of the State cannot be prosecuted except after obtaining sanction under the provisions of

Section 197(2) of Cr.P.C. is also not well founded. Here the person of the petitioner/accused is not discharging his public functions in charging or

demanding illegal gratification for doing some official job. So in case a person complains about such act of a Slate Official by way of complaint, no

sanction for such prosecution is required under Sub-section (2) of Section 197 Cr. P.C. because demand or accepting of illegal gratification docs

not fall under any of the official functions of a State official.

Now looking to the case under the provisions of Section 435 Cr.P.C. I do not find that there is any illegality or irregularity of any proceeding

found in taking of cognizance by the Judicial Magistrate about the offences against the accused which requires interference under the revisional

powers of this Court or inherent powers of this court u/s 561-A Cr.P.C. to prevent abuse of the process of the court.

In light of the above observations, this petition u/s 561-A Cr.P.C. is dismissed with the direction to the learned trial Magistrate to proceed

ahead with the case after calling the parties. Records be sent back to the court below forthwith.