Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16831 of 2011 ====================================================== 1. Jyotindra Nandan Azad S/O Late Ram Autar Prasad Autar Prasad Khatri, R/O Ram Autar Prasad Khatri Path, Gurhatta - Hamam, Patna City, P.S.- Khajekalan, Distt. -Patna the then Assistant Sub-Inspector of Police, Town Police Station, Begusarai, Distt. –Begusarai. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Chaando Singh S/O Late Sado Singh, R/O Gram-Lodia, P.S. & Distt. – Lakhisarai. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Vikram Singh and Mr. Shashi Ranjan, Adv. For the Opposite Party/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 3 30-08-2012 Heard learned counsel for the petitioner and learned counsel for the State. In this case, the petitioner is challenging the order dated 6.1.2010 passed in Complaint Case No. 79C of 2007 by which the court below has taken cognizance for offence under [STATUTE] . It appears from the record that the Police lodged Lakhisarai P.S. Case No. 109 of 2007 relating to the same incident. In the present complaint case it has been alleged by the complainant that he along with his son and wife were in a mill house and one person along with three came in simple dress and caught his son and by that time some villagers exhorted calling Patna High Court Cr.Misc. No.16831 of 2011 (3) dt.30-08-2012 2 / 4 2 that person as Jamadar Saheb to kill the son of the complainant. They took away his son behind the temple and fired from the service gun causing fire arms injury in the meantime a Police Jeep came and his son was taken to Lakhisarai Hospital. From the counter version as it appears in Lakhisarai P.S. Case No. 109 of 2007 that the Police party had proceeded to arrest Karu Singh who was a veteran criminal and when they reached the temple Karu Singh along with two persons were sitting there. No sooner they had identified the Police, then they started the firing. The Police party asked them to surrender but they continued to fire. When the Police retaliated, they received the injury and thereafter, the Police recovered the Pistol along with other materials. The seizure list was accordingly prepared and Karu Singh was arrested along with fire arms. The counsel for the petitioner submits that the complaint case is completely a malicious prosecution and that has been lodged in retaliation to the case of the Police case where it has been explained how Karu Singh had received the injury. He has further submitted that the petitioner acted in due discharge of his official duty as he had gone to arrest to Karu Singh and as such, the order of cognizance is completely bad and he further submitted that before taking cognizance the Magistrate Patna High Court Cr.Misc. No.16831 of 2011 (3) dt.30-08-2012 3 / 4 3 ought to have asked the prosecution to get a sanction and then only the court should have taken cognizance. In absence of the same, whole order of cognizance is bad in law. He further submits that the present complaint case remained pending for years together and complainant did not take any action. When the complainant found that the Sessions Court had already completed the evidence of both sides and the case reached to advance stage, then the complainant took step in the complaint case. So far the sanction is concerned, the Hon’ble Supreme Court in the case of Prakash Singh Badal Vs. State of Punjab 2007 (1) SCC 1 has held that sanction can be taken even at the trial stage and it is always dependent on the nature of allegation and duty to be performed and the court would also examine the nexus with the work and the offence alleged. In view of the Hon’ble Supreme Court Judgment, this Court does not find force in submission of the petitioner with liberty to the petitioner to raise this plea at the stage of trial. So far the counter case is concerned, at this stage, this Court cannot examine the veracity of allegation made in Police case vis-à-vis the statements made in complaint petition and the statements of the witnesses recorded during enquiry. The court was only required to see, whether prima facie case is made out Patna High Court Cr.Misc. No.16831 of 2011 (3) dt.30-08-2012 4 / 4 4 against them. This Court does not find any error in the order impugned. So far advance stage of trial is concerned as has been submitted by the petitioner, the Sessions court will proceed with the matter without taking cognizance of the present case as the present case is at the stage of cognizance and the Sessions case is at advance stage. With this observation and direction, this petition is dismissed. However, liberty is given to the petitioner to raise all the points before the court below at the stage of the discharge. Mahesh/- (Shivaji Pandey, J)

Applicable IPC Section: 504

Statute Text:
Section 504 of the Indian Penal Code. Insult intended to provoke breach of the peace. Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.