CRIMINAL MISCELLANIOUS No.16093 OF 2005 ******* In the matter of an application under section 482 Of the Code of Criminal Procedure. ******* KANCHAN KAPOOR------------------------PETITIONER Versus 1. THE STATE OF BIHAR 2. DEODHARI MISHRA -------------------OPP.PARTY ******* For the Petitioner : M/s Anil Kumar Tiwary, Jagdish Prasd & Binod Kumar Mishra For Opp.Party no.2 : Mr. Gopal Govind Mishra For the State : Mr. Atul Chandra, APP ******* P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the petitioner, learned Additional Public Prosecutor for the State and Sri Gopal Govind Mishra, for the complainant. 2. This is an application under Section 482 of the Code of Criminal Procedure seeking quashing of 2 order dated 10th March, 2005 passed by sri Indrajeet Singh, Judicial Magistrate, first class, Ara, taking cognizance for the offences under Sections 323, 341, 504 and 427 of the Indian Penal Code in Complaint Case no. 1336 C of 2004 ; Trial no. 23 of 2005. 3. The relevant facts of this case is that one Mahendra Jeep no.BR 3P- 6938 was seized by the Authorities including the petitioner as Circle Officer and during such transaction, as averred, there was some sort of use of abusive language and force. The vehicle remained at concerned Police Station during the period 23rd August, 2004 to 13th September, 2004. The complainant opposite party no.2 claimed, besides assault etc., loss of Rs.26,000/- under different heads and filed the complaint against the petitioner only naming him. Solitary accused for the offences under Sections 166, 167, 341, 323, 500 and 504 of the Indian Penal Code. 4. Though there is no counter affidavit but on the basis of Annexure-6 the order dated 13th September, 2004 passed by learned Chief Judicial Magistrate, Ara in Misc. Case no. 237 of 2004 as 3 regards the release of the said vehicle which was seized and lying at Police Station becomes now undisputed position that one case was there with respect to the incident of seizure of the vehicle in question but the fact that one connected case is there and the vehicle in question has already been released by the Judicial order, referred to above, the complainant, opposite party no.2, inspite of filing the case, much thereafter for the reasons known to him, did not disclose such happenings except that from 23rd August, 2004 to 13th September, 2004 the vehicle in question had been lying at the Police Station. 5. Learned counsel for the petitioner, while assailing the impugned order, taking cognizance, submits that though petitioner was in discharge of his official duties having Authority to participate in such raid and checking of motor vehicles which was being conducted in the guidance of the Subdivisional Magistrate without sanction, as required under Section 197 of the Code of Criminal Procedure, took cognizance. On the other hand, learned counsel for opposite party no.2, by placing reliance upon decision 4 of the Apex Court in the case of G.C. Mrig V. State of Bihar and Another; 1994(1) PLJR 47, submits that sanction under Section 197 of the Code of Criminal Procedure was not at all required and further relying upon the decision of Apex Court in case of P.K. Pradhan V. State of Sikkim; 2001(6) SCC 704, even if at any stage any necessity was made, steps can be taken for that but at this stage impugned order is not barred in want of such sanction. Learned counsel for the petitioner also concedes to the finding arrived at by Apex Court in the decision aforementioned, where in paragraph 5 reads as such: “5. The legislative mandate engrafted in sub Section (1) of Section 197 debarring a court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Section 197 of the Code: “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official 5 duty”. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so inter related that one can postulates reasonably that it was done by the accused in the performance of the official duty, though, possibly in excess of the needs and requirements of the situation.” 6. It is further submitted that neither it was the official duty of the petitioner to abuse and assault nor sanction was ever required and even if at subsequent stage it is felt that sanction order is a necessity, it may be obtained and produced during trial. In view of the above decision of the Apex Court there is now no dispute that only for want of sanction order taking cognizance cannot be held bad or interfered with. 7. It is next contended that only because the vehicle in question was seized on the ground that a 6 private vehicle being plied for commercial purpose just to satisfy the personal grudge and vendetta the complaint has been filed concealing the relevant facts and release of the vehicle by Judicial Order. Learned counsel for opposite party no.2 tried his level best to rebut and submitted that it was not required to mention all such details and the case against the petitioner is for his alleged manhandling and use of abusive words against opposite party no.2. 8. In view of undisputed position that petitioner was one of the members of party involved in search and check of motor vehicles and vehicle in question was seized kept confined at Police Station for the periods mentioned in the complaint petition till it was released by judicial order. Relevant facts were concealed by the complainant opposite party no.2 causing deprivation of exercise of jurisdiction of Chief Judicial Magistrate or the Magistrate in seisin to invoke his jurisdiction as required under Section 210 of the Code of Criminal Procedure which reads as such: “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence:- 7 (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the enquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the enquiry or trial held by him, the Magistrate shall stay the proceedings of such enquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall enquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the enquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” 9. The very purpose behind filing of the complaint case much after release of the vehicle against the petitioner appears to satisfy personal grudge and vendetta the law does not permit initiation of criminal proceeding to satisfy all such undue lust. Here interference by this court in exercise of inherent jurisdiction appears warranted. Accordingly, impugned 8 order as well as the complaint petition is quashed and application stands allowed. (Akhilesh Chandra, J.) Patna High court, The 23rd September, 2010. AAhmad/(NAFR).