Vinod Kumar Srivastava vs Jitendra Kumar Singh

P.K. Sarkar, J.—This application has been filed for quashing the order of cognizance alongwith the entire proceeding against the Petitioner in Complaint Case No. 270C/90. Pr. No. 523/91 pending in the court of Sri Ramanuj Sinha,'' Judicial Magistrate, 1st Class, Patna.

The brief facts leading to this application is that O.P. Jitendra Kumar Singh filed a complaint pettion on 14.6.90 alleging therein that on 16.3.90 in between 9 A.M. to 11.45 A.M. while he was sitting in his house talking with his mother about the marriage of his younger brother, all of a sudden all accused persons entered into his house and the Petitioner caught hold of the complainant and dragged him upto Ashok Rajpath and forcibly put him in a Police Jeep which was waiting there from before. He was then taken to Pir-bahore Police Station and subsequently produced before the Chief Judicial Magistrate on 17.5.90 on some false pretext of recovery of firearm. It was alleged that he was forced to put his signature on the Seizure List. The complainant was examined on solemn affirmation and some witnesses were examined on his behalf. On the basis of the aforesaid evidence, Sri Ramanuj Singh, Judicial Magistrate took cognizance against the Petitioner on 29.9.92 under Sections 323 and 504 I.P.C. and issued summons.

Being aggrieved and dissatisfied with the impugned order, the present application has been filed.

The learned Counsel for the Petitioner submits that the entire allegations in the complaint are false. The Petitioner was posted as Inspector of Police at Pirbahore Police Station and was deputed in the task force for arrest of criminals. Besides the Petitioner, other persons were members of the said task force. The Petitioner received a secret information that the complainant O.P. No. 2 used to bring illegal arms and ammunitions and sell it to the criminals. The Petitioner with a view to apprehend him organised a raiding party. consisting of A.S.I. Amalendra Mishra, Constable Devendra Jha etc. The Station Diary entry No. 791 dated 16.5.90 was made by the Petitioner. The S.I. of Police and others were handed over one hundred rupee-note and eighteen notes of fifty rupees denomintion, the number of which were noted by the members of the raiding party. At about 9 A.M. A.S.I. Amalendra Mishra and Constable Devendra Jha gave signal to the Petitioner from the house of Jitendra Kumar Singh and the Petitioner alongwith other police official with armed forces went to the house of Jitendra Kumar Singh who wanted to flee away. But he was surrounded by the Petitioner and others police officials and on search he was found in possession of the said currency notes. On interrogation O.P. No. 2 confessed his guilt that he was indulging in illegal sale of arms and ammunitions. Thus, the Petitioner arrested O.P. No. 2 Jitendra Kumar Singh and a case was instituted bearing Pirbahore P.S. Case No. 146/90 for the offences under Sections 20(1)(B), 29(B), 28/30 of the Arms Act and O.P. No. 2 Jitendra Kumar Singh was remanded to Jail custody. Subsequently, on 14.6.90 in order to save his skin O.P. No. 2 filed a complaint petition before the Chief Judicial Magistrate against the Petitioner and the case was transferred to the court of Sri Ramanuj Sinha, Judicial Magistrate, 1st Class, Patna, who issued summons to the accused-Petitioner and others.

The learned Counsel for the Petitioner submits that he acted in the due discharge of his official duties. As the Petitioner received secret information that the O.P. No. 2 used to bring illegal arms and ammunitions and sell it to the criminals, a raiding party was organised and illegal arms and ammunitions were recovered from his possession, as alleged. O.P. No. 2, thus, was arrested and remanded to custody. The complainant has not made any specific allegation on which any criminal liability can be made out against the Petitioner and others. The entire complaint case was cooked up in order to build a defence for the case filed against the O.P. by the Petitioner. In that view of the matter, there is no substance in the allegation and the ingredients of Sections 323 and 504 I.P.C. are lacking. The Petitioner acted in good faith to prevent the O.P. from committing the criminal activities. The case filed against him was duly taken cognizance and being proceeded with in the court. As per the own statement of O.P. No. 2 it will appear that he was released on, bail on 4.6.90 and the complaint was filed on 14.6.90. This undue delay in filing the complaint makes the whole allegations doubtful. There is nothing to show that the com-plainant-O.P. No. 2 made complaint of any mal treatment by the Petitioner while he was produced before the Chief Judicial Magistrate at the time of remand. It is submitted that the Petitioner did the entire thing in discharge of his official duty. No sanction has been obtained by the O.P. 2 from the concerned authority for prosecutions of the Petitioner, who was on Government duty at the time of alleged occurrence.

The O.P. No. 2 has not appeared in this proceeding, though, notices were served on him. Thus, there is nothing on the record on the basis of which the submissions of the Petitioner can be disbelieved. It appears that the Petitioner was posted as Inspector of Police in Pir-bahore Police Station at the time of the occurrence and in such capacity of official duty he arrested the O.P. No. 2 and others and seized certain articles and, thus, the elements of the offences for which cognizance had been taken are lacking in the case.

In the result this application is allowed and the order of cognizance alongwith the entire proceeding against the Petitioner in Complaint Case No. 270C/90, Tr. No. 523/91 is hereby quashed.