IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16254 of 2008 MD.QAIYUM, Son of Late Md. Bashinul Haque, resident of Village- Pratap Nagar, Town, P.S. Mehsaul ( O.P.) , District-Sitamarhi, at presently posted and working as Assistant Sub Inspector of Police at Laheriyasarai Police Station, District-Darbhanga ( Bihar) ----------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Professor Rajendra Jha, Son of Late Sobhakant Jha, resident of Naya Gangasagar, P.S. Laheriyasarai, District-Darbhanga ------------------- Opp.Parties. ----------- 03 30-06-2010 Heard Md. Shahnawaz Ali, learned counsel appearing on behalf of the petitioner and Sri A.M.P.Mehta, learned Addl.Public Prosecutor appearing on behalf of the State. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 13.2.2008 passed by the learned Sub Divisional Judicial Magistrate, Darbhanga in Complaint Case No.1154 of 2007 . By the said order, the learned Magistrate has taken cognizance of offence under Sections 341,323,504,379,380 and 452 of the Indian Penal Code. The short fact of the case is that Opp.Party no.2, who claims to be a Professor and aged about 70 years old, filed a complaint alleging therein that two private accused persons along with this petitioner, who was Assistant Sub- Inspector of Police, Laheriasarai Police Station, Darbhanga came to the house of the complainant and in presence of this petitioner other two private accused persons started demolishing the compound wall of the complainant. It was alleged in the complaint 2 petition that when the complainant and his wife requested not to do such act, this petitioner abused them and also threatened for arresting them. On this allegation and other allegation, complaint petition was filed. It was further alleged that again on 14.8.2007 in the morning, all the accused persons entered into the Baithaka of the complainant, where this petitioner again abused the complainant, which has been elaborated in the complaint petition. After filing the complaint petition, the complainant was examined and in support of the complaint petition, altogether four witnesses were examined at the enquiry stage. After being satisfied with the materials available on record, the learned Magistrate by the impugned order i.e. order dated 13.2.2008 took cognizance of offences. Aggrieved by the order of cognizance, the petitioner has preferred the present petition. At the very outset, the learned counsel for the petitioner has argued that the petitioner had gone to the house of the complainant, while discharging his official duty and since he was discharging his official duty, the learned Magistrate without obtaining prosecution sanction was not required to take cognizance against this petitioner. Learned counsel for the petitioner has also referred to several documents enclosed with the petition to show that the land in question was a land of Kashere Hind and for removing the encroachment, proceeding was also initiated. Annexurs 4, 5 and 6 to the petition, on which learned counsel for the petitioner has relied, contain the dates, which is after filing of the complaint petition. The complaint petition was filed on 14.8.2007. However, Annexure-4 is dated 2.11.2007; Annexure-5 is dated 26.12.2007. Similarly, Annexure 6 3 is dated 17.9.2007. Learned counsel for the petitioner has also relied upon a report dated 5.9.2007 prepared by the Inspector of Police, namely, Sri Abdul Khalique . It has been argued by the learned counsel for the petitioner that this report shows that the petitioner had gone to the place of occurrence, while discharging his official duty and false case was instituted. Learned counsel for the petitioner has also referred to Annexure-7 , which is a typed copy of a report prepared on 29.11.1996. It was submitted that this report shows that the complainant was unnecessarily claiming his right and possession over Holding No.556. Accordingly, learned counsel for the petitioner has prayed for quashing of the order of cognizance both on the ground of merit as well as on the ground of absence of sanction order for prosecution. Sri A.M.P.Mehta , learned Addl.Public Prosecutor has vehemently opposed the prayer of the petitioner. He submits that it hardly matters whether on the record, there is sanction order or not. He submits that complaint petition itself categorically discloses commission of offence against the petitioner and, accordingly, he has prayed for rejection of the present petition. Besides hearing learned counsel for the parties, I have also perused the materials available on record. From the contents of the complaint petition, the Court is satisfied that offence is made out and while passing the order, the learned Magistrate has committed no error. So far the question of sanction order is concerned, this Court is of the view that the petitioner, who was Assistant Sub-Inspector of Police can not get the protection under Section 197 of the Code of Criminal 4 Procedure. Section 197 Cr.P.C. is very much clear that this gives protection to an Officer, who is removable by either Central Government or the State Government. Since the petitioner was posted at the relevant time as Assistant Sub Inspector of Police, it cannot be considered that he can be removed only by the Government. For his removal, there are other Officers as per the provisions contained in the Police Manual. Accordingly, I do not find that non-availability of the prosecution sanction order would be sufficient to quash the order of cognizance. Moreover, on the facts and circumstances of the present case, this petitioner cannot claim his protection under Section 197 of the Cr.P.C.. It cannot be considered that a public servant in discharge of his official duty can unauthorisedly enter into the house of the complainant, abuse him, threatened him and assist other accused persons in commission of offence for demolishing of compound wall and according for such act, he cannot claim protection under Section 197 of the Code of Criminal Procedure. In view of the facts and circumstances of the present case, this Court find no merit in the present petition and the petition stands rejected. It is clarified that this order will not prejudice either of the parties at any subsequent stage. Accordingly, the petition stands rejected. NKS/- ( Rakesh Kumar, J )