B.K.Ray, J. -
(1.) THIS is one of the trite instances in which the Court should exercise its revisional jurisdiction in quashing the proceeding in order to avoid undue harassment and necessary trouble o the parties.
(2.) THE Petitioner No. 1 (Krushna Chandra Patnaik) is an Inspector of Police, C.I.D., Special Branch, Cut tack, and the Petitioner No. 2 (Prasanna Kumar Jena) is a Sub -Inspector of Police, District Intelligence Bureau, Baripada. They are under prosecution for having committed offences contrary to Sections 161 and 420, Indian Penal Code. The facts disclosed from the evidence recorded by a Magistrate of the First Class who, as usual, held a judicial enquiry in the presence of the accused persons into the truth of the occurrence in order to ascertain if there was a prima facie case to begin with, are that the Petitioner No. 1 had a 476 musket which he was willing to sell. The complainant is a motor driver in the employ of Shaw Motor Service of which Brajagopal Bose (P.W. 5) is the Manager. Khageswar Patnaik (P.W. 6) is a motor mechanic, of Mayurbhanja Automobile Works. The Inspector (Petitioner No. 1), the Sub -Inspector (Petitioner No. 2) and the aforesaid three people were out in a shooting party in a Sabei plantation 6 miles off from Baripada. It was agreed that Petitioner No. 1 should sell and the complainant (P.W. 1) should purchase the gun (476 musket) for Rs. 250/ - & that the Petitioner No. 1 will get the driver a licence also. It appears from the evidence of P.W. 5 that this agreement was not arrived ab on solicitation proceeding from Petitioner No. 1, but it was brought about through his negotiation. I will quote him to make the matter clear
Chhotalal (complainant) is a motor driver. Once he told me he wants to purchase a gun. Krushna Babu was also telling me that he would sell away his gun. I asked Krushna Babu that his tan will be purchased if he can get a licence in the name of Chhotalal. They agreed that they will get the licence and give the gun for Rs. 250/ -.
Thereafter, Chhotalal went to the District Intelligence Bureau Sit a time when Krushna Babu was not there and approached Petitioner No. 2 (P.K.J.) to help him to get the licence. Mr. Jena got a form of application typed and one of the Assistant -Sub -Inspector of Police in the office was asked to fill up the informations required as given out by the complainant. This is borne out by the A.S.I. himself. The application was according to that witness, returned to Chhotalal who himself must have had, in due course, presented it in the office of the Superintendent of Police. It may be noted: that the complainant disavows having any hand in presentation of the application to the S.P. So's office, but' the A.S.I. (P.W. 4) deposes that after filling the application he made it over to the driver. Hence the necessary conclusion that he must be the man who filed it in the S.P's. office As usual, the Inspector 'A' made a note and submitted it to S.P. What that note was is not readable as it has been scored through very closely. The Inspector 'A' however, says that he had written not recommended which remark, according to him, was changed on being persuaded by Krushna Babu and P.K. Jena. I will assume for the moment that it is 60. Then the course that the event took was that Inspector 'A' made a; note - I am not quite sure whether that was before that or after that the application shall be submitted through the Subdivisional Officer. We find an endorsement to that effect. An endorsement under the signature of the Subdivisional Officer -in -charge appears below this in which the Subdivisional Officer recommends for a licence. (If this document came to the Inspector 'A' who now says that he had not recommended before it was submitted to the S.P. his evidence must be considered to be very much tainted.) I shall not, however, held that to be so. Let me assume that he was not so much influenced by Petitioner No. 1 (Krushna Babu). In the long run he recommended for a licence. It has to be noted here that there was some query made either by him or some body else as to why Mr. P.K. Jena (Petitioner No.) recommended for a licence for the musket. P.K. Jena is the person who replies. Of course this recommendation refers to the talk between P.K. Jena (Petitioner No. 2) and the Inspector 'A' (P.W. 3). If it was so, the recommendation of P.K. Jena was on a bonafide belief of what he believed to be correct rule in the matter, and the matter was not a hush -hush one but done in good faith; because P. K. Jena writes in answer to the query that the matter may not be relating to the particular musket but of some other musket of the same calibre (to be more exact) the same bore -there was a discussion between the then S.P. (Mr. Rath) and the then District Magistrate (may be Mr. Mathews) when it was decided that licence for musket could be granted to outsiders, meaning thereby persons not in government service. No doubt, the disposal of this application for licence tool, a protracted zig -zag course covering about 4 to 5 months. In the meantime, Krushna Babu (Petitioner No. 1) had received Rs. 220/ - from the driver towards the price and had been absent at Puri. The driver might have become impatient and started a row in the Bazar. He had, however, never been advised by anybody interested in him to make a complaint of it to any of the authorities. In this connexion, I should quote a statement of the driver to the Magistrate in the deposition:
I wanted my gun and licence, So I did not ask Krushna Babu for the return of the money.
I While the matter rested there the Superintendent of Police sent for the driver and admittedly examined him. According to the driver, he made statements which were reduced into writing by the Superintendent of Police. I do not know if the complaint made to the Superintendent of Police would not amount to be cognisable offence The Superintendent of Police took recourse to an unusual proceeding. He ought to have started investigation or should have sent the man to the Officer -in -charge of the Police Station to record a F.I.R. He, however, entered Into a talk with the District Magistrate, and thereafter sent the man to him before whom he did not file a written complaint but was examined. It will not be far from correct or the Petitioners in the position of accused to say that by this procedure they have lost the safeguard of the earliest recorded statements by the complainant. In innumerable cases, we find that either the recorded F. I. R. or the written complaint are the check against subsequent developments of the cases before the Magistrate. However I refrain from making any comment over this. Had I not agreed to quash this proceeding, I should have stuck to my own view that this case should not have been tried in the district of Baripada. The Superintendent of Police and the District Magistrate have too much interested themselves in setting the case afoot while the complainant himself had not felt baffled nor reached the stage when he should have considered himself disappointed or frustrated by the conduct of the Petitioner No. 1. By this, I mean he had never demanded the money back nor had that been refused by the Petitioner No. 1 (Inspector). This is how the case has now been - started. I have read the order of the learned Sessions Judge refusing to make reference to this Court for quashing the proceeding. He writes that the Public Prosecutor, who appeared before him representing the State, rightly conceded that on the facts of this case there was no case to go to the Jury under Section 420 I.P.C. It is nobody's case that Petitioner No. 2 (P.K. Jena) either entered into the contract giving an undertaking that he would see to the grant of a licence. The part assigned to him in the prosecution, as told, is that in his presence money was paid to the Inspector (Petitioner No. 1) ad that as requested by the Petitioner No. 1 he got a petition written in the regular form and otherwise gave his assistance to the complainant for getting the licence as he might do as a matter of courtesy to his friend (Inspector'. J cannot conceive how could any Magistrate think of him as an offender in the case.
With regard to the Inspector (Petitioner No. 1) it is not suggested that from the beginning of his entering into the contract, he had no desire to fulfil it but was motivated to cheat the money on making a show or pretence of it. According to the complainant's version, he has not even denied the fact that he took the money nor has he refused to pay back the same finding that no licence would be granted. Under the circumstance the charge under Section 420, even if all that is told by the prosecution witnesses is believed to be true, is not maintainable & I would, therefore, have no hesitation in quashing the proceeding against both the Petitioners of the charges against them under Section 420, I.P.C.
(3.) THE misconception of law under Section 161 evidenced by the learned Magistrate is still more revealing. As it appears from the report of the enquiring Magistrate, they are said to have committed this offence by receiving gratification for rendering or attempting to render service as public servants to the complainant -driver. It is no doubt correct to say that if these elements are established, the offence under the section would be made out. The one element that is absent in this case was that no gratification was either received or attempted to be received for rendering any service to the complainant -driver. Both the driver and the manager of the Company have said that Rs. 250/ - was the price of the gun. When asked during cross -examination, none of them have been able to say that anything was settled separately as price of the gun and the reminder as gratification for rendering the service. I would believe that it was a part of the contract that the Inspector (Petitioner No. 1) should see that a licence is obtained, & I should say that was in his own interest, because he could not part with the gun even if on receipt of price to any body other than a licensee. If either securing or helping to secure the licence was agreed upon, it was agreed upon not in lieu of any gratification but as an integral part of the contract, in the sense that in case no licence is granted, the contract of purchase will fall through and money, if advanced, would be refunded. I can easily see that without the minimum of insight into civil law, the Magistrates are liable to err in this respect. If elements of civil contract are kept in view, the concept of an offence would not come into vision. After having agreed to see to it, it would not be wrong on the part of the Petitioners Nos. 1 and 2 to recommend to the Inspector 'A' to give a favourable note for the driver believing, as they did, that such licence ought to be granted. The Subdivisional Officer's view about the matter has to be kept in view too. In this connexion, note the conversation between the Petitioner no 1, his lieutenant (Petitioner No. 2) & the Inspector 'A' who changed his opinion and made an endorsement of a favourable note that the driver was known to them and that there was no wrong in recommending his case for the purpose of a licence. To the credit of Petitioner No. 2, he had the knowledge that it had been decided as a result of consultation between one Superintendent of police of Bripada and a District Magistrate that licence to held muskets can be granted to outsiders. Available in the evidence in this case are instances of outsiders having muskets of this very type with licences granted in this very district. For instances, look at the statement of B.G. Bose, (P.W. 5) before the enquiring Magistrate. He says:
The price of the gun was not separately fixed. It was agreed that K.C. Patnaik should get licence in the name of Chhotalal for the gun and .then only Rs. 250/ - be paid to him. I have got a licence and a musket since 9 months. District Magistrate granted me a licence. To my knowledge I do not know who are the others who Possess 476 muskets.
The emphasis is upon the fact that he, who is an outsider, has recently, that is, 9 months back, that is to say, abut 2 or 3 months before the occurrence, got a licence for a musket of this kind. We have also got the evidence of p. w. 4, who says:
I also possess a musket of the same bore. One Gangadhar of my village was offering 200 or 250 for my gun.
It should be noted that 250 for the gun is not in excess of the reasonable and appropriate price of the musket. This is corroborated by the statements of the witnesses already quoted.;