Kalyan Dutta, J. - (1.) This is a reference made by the Additional Sessions Judge, Sikar, with a recommendation that the order of the Munsiff-Magistrate, Sikar, dated 4-4-72, taking cognizance against Kesar Dev Prosecuting Inspector under section 217, Indian Penal Code upon a Complaint filed by Shri Gir Raj Prasad Additional Munsiff Magistrate, Sikar, may be quashed.
(2.) The reference arises under the following circumstances : In Criminal Case No. 40 of 1969 (State v. Satya Narain and others under sections 147, 332 and 323, I. P. C.) Shri Kesar Dev was a Prosecuting Inspector and was conducting the case on behalf of the prosecution. On 13-7-1971, the Additional Munsiff-Magistrate, Sikar, who was trying this case, ordered Kesar Dev, Prosecuting Inspector, to produce daily diary of the police, i e, Roznamcha in the court on 12-8-71. Shri Kesar Dev neither appeared in the court on 12-8-71, nor did he produce the Roznamcha. The learned Additional Munsiff-Magistrate thereupon granted an adjournment on the request of the Prosecuting Sub-Inspector to enable Kesar Dev to produce the Roznamcha on 24-9-71. Thereafter further adjournments were given on one ground or another. On 3-4-1972 it was reported to the Magistrate that the required Roznamcha was not available in the police station and that it was weeded out. It appears that the learned Magistrate was not satisfied with this report and, therefore, he filed a Complaint against Kesar Deo under section 217. IPC read with Section 29 of the Police Act in the court of the Munsiff-Magistrate First Class, Sikar. Upon receipt of the complaint, the learned Magistrate took cognizance of the aforesaid offences on 4-4-72 and issued a summons to Kesar Dev to appear in his court on 26-4-72. Aggrieved by this order, Kesar Dev filed a revision-petition in the court of the Additional Sessions Judge, Sikar. The learned Additional Sessions Judge, Sikar, heard the revision petition and came to a conclusion that no offence under Section 217, I P.C. was made out and that the learned Munsiff-Magistrate committed an error in taking cognizance against Kesar Dev for the aforesaid offence. Hence he made this reference after taking explanation from the Munsiff-Magistrate.
(3.) I have heard the arguments advanced by Mr. S.S. Bhandawat for the State and Mr. N.L. Tibrewal for Kesar Dev and perused the explanation submitted by the learned Munsiff-Magistrate. Section 217, Indian Penal Code deals with disobedience on the part of a public servant in respect of official duties. The dereliction of duty must be committed in the discharge of the functions of the public servant concerned. Before a person can be proceeded against under this section, there must be some material to show that there was a direction of law as to the way in which the person was to conduct himself as such public servant and that he deliberately disobeyed any such direction of law intending thereby to save or knowing it to be likely that he would thereby save any person from legal punishment or subject him to a less punishment, to which he was liable or that he would save some property from forfeiture or a charge to which it was liable by law. It must also be shown that the direction which the public servant knowingly disobeyed was a direction to be found~in some positive statute or some rules or regulations which have the force of law. None of the aforesaid ingredients are present in the instant case. The learned Additional Munsiff-Magistrate ought to have called for the Roznamcha from the police station concerned if it was not produced before him by Shri Kesar Dev. It appears that the' Additional Munsiff Magistrate took no steps to compel the production of the Roznamcha before him. He could issue a summons or a written order under sub Section (1) of Section 94 of the old Criminal Procedure Code to the Station House Officer or to any other person in whose possession or power such document was believed to be requiring him to attend and produce it in the court. It appears from the record that he failed to exercise the powers given to him by Sub-Section (1) of Section 94, old Criminal Procedure Code Shri Kesar Dev was a Prosecuting Inspector only whose duty was to conduct the case on behalf of the prosecution. The required Roznamcha was not in his possession and so it could not be said that he knowingly disobeyed any direction given to him by the Additional Munsiff Magistrate. The order-sheet of the Additional Munsiff-Magistrate dated 3-4-72 clearly reveals that a report made by the Prosecuting Inspector was submitted to the Additional Munsiff-Magistrate by the P. S. I. that the required Roznamcha was not available in the police station as it had been weeded out. Under these circumstances, the Additional Munsiff-Magistrate committed an error in filing a Complaint against Shri Kesar Dev. The learned Additional Sessions Judge, Sikar, has given out cogent reasons in support of his reference, with which I fully agree and I do not think it necessary to reproduce them here. Suffice it to say that the complaint did not disclose any offence under Section 217, Indian Penal Code or any other law.;