IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22910 of 2007 BALIRAM PRASAD, SON OF SHRI KEDAR PRASAD, RESIDENT OF VILLAGE TETARIA, P.S. RAJEPUR, DISTRICT-EAST CHAMPARAN……………………………………………….PETITIONER. Versus 1. THE STATE OF BIHAR. 2. MAHADEO RAI, SON OF SATYANARAYAN RAI, RESIDENT OF VILLAGE DIWANJI KA SHIKARPUR, P.S. SHIKARPUR, DISTRICT-WEST CHAMPARAN. ……………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Sanjeev Kumar No.1, Advocate. For the State : Dr. Maya Nand Jha, A.P.P. For O.P. No.2. : M/s. R.C. Sinha and Rakesh Ranjan, Advocates. -------------- O R D E R One of the three persons arrayed as accused in Complaint Case No.854C of 2002 has preferred this application for quashing of the order dated 6.3.2003 passed therein by the learned Sub Divisional Judicial Magistrate, West Champaran at Bettiah, whereby he has taken cognizance of offences under Sections 420, 465, 467, 471, 120B I.P.C. against all the three accused persons including the petitioner. One Mahadeo Rai, the complainant, impleaded herein as O.P. No.2 , filed the aforesaid complaint inter alia stating that one Anand Bikram Sah, holding a power of attorney , executed a registered sale deed on 23.6.1950 transferring 84 bighas, 1 katha and 16 dhurs of gairmazarua lands appertaining to khata no.57, plot no.54 in favour of New Swadeshi Sugar Mills Ltd., Narkatiaganj, and some portions thereof was subsequently purchased by the State of Bihar for - 2 - purposes of rehabilitating the refugees and on some portions thereof some refugees were rehabilitated . It is said that the Mill by a registered sale deed sold the remaining portion of the land to one Subh Narayan Prasad and the complainant and the said land was duly mutated in favour of the complainant vide Mutation Case No.11/73-74 and a jamabandi no.89 was created in his name. It is alleged that accused nos.1 and 2 with covetous eyes on the lands of the complainant approached him on 15.6.2000 with a request to sell the same lands to them and when the complainant did not accede to their request they threatened to dipossses him. It is further alleged that on 10.3.2002, the aforesaid two accused accompanied by gun, bhala, garasa and lathi wielding anti socials came to his lands and wanted to forcibly cultivate the same and when the complainant objected they stated that the lands had been settled in their favour by the Anchal office. The surprised complainant on inquiry came to learn that the land in question had been settled in the name of the accused and his wife vide order dated 12.10.1997 in Case No.3/97-98 by suppressing the real material facts and by obtaining permission of higher officials by fraudulent means. It has been submitted on behalf of the petitioner that the perusal of the complaint petition would clearly disclose that the instant case was of purely civil nature and the complainant instead of filing a civil case for cancellation of the alleged settlement of the land in favour of the accused nos.1 and 2 had filed the complaint case only to harass the petitioner and the others. - 3 - It was also submitted that the lands had been settled by the Circle Officer, Mainatar, in favour of accused nos.1 and 2 and one Gena Devi after due inspection of the land by the Circle Officer and that during the period between 1992 to 1998, the petitioner was posted as Halka Karamchari in the Mainatar Anchal and that he had recommended the settlement of a small portion of the land in question which in the khatiyan had been mentioned as gairmazura malik parti kadam. It has also been submitted that the action of the petitioner was bonafide and based on the entries made in the record and before passing the final orders the Circle Officer had made spot verification. Protection under Section 197 Cr.P.C. has also been sought in view of the petitioner having made his recommendation in discharge of his official duty as a public servant. As laid down in the case of Indian Oil Corporation Vs. NEPC India Limited, reported in(2006)6 SCC 736, a given set of facts may make out (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. As the nature and scope of a civil procedure are different from the criminal proceedings, the mere fact that the complaint relates to a criminal transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceeding. The test is whether the allegations in the complaint discloses a criminal offence or not. In the instant case, the admitted position is that the lands in question had been sold to the complainant through a registered sale deed and duly mutated in his favour vide - 4 - Mutation Case No.11/73-74 and a Jamabandi No.89 was also created in his name. The petitioner does not deny these facts nor does he, as Halka Karamchari, make out a plea that he was unaware of these developments. Therefore, he must have been well aware of these facts when he recommended the transfer of the disputed lands for settlement with the accused persons. Apparently, he must have ignored the entries made in the reports before making such recommendations. His action does not auger well in the fitness of things and an adverse inference has to be presumed against him. So far as the question of his being protected by Section 197 Cr.P.C. is concerned, it is well settled that not each and every action of a Government Servant can be said to be protected by Section 197 Cr.P.C. The object of Section 197 Cr.P.C. is to guard against the vexatious proceeding and to secure the opinion of the superior authority whether it is desirable that there should be a prosecution. The nexus between discharge of the public duty of the offending act or omission must be inseparable. The obvious reason is to balance the public good and efficiency of the performance of the public duty by a public servant and legitimate and bonafide grievance of an aggrieved person. It is true that some times while discharging or purporting to discharge a public duty an officer may honestly exceed his limit or pass an order or take a decision which may later on be found to be illegal or unwarranted. Therefore, the prior sanction by the appropriate Government is an assurance to a public servant to discharge his official functions diligently, efficiently and honestly - 5 - without fear or favour, without having haunt of later harassment and victimization so that he would serve his best in the interests of the public. Gainful reference, in this connection, may be made to the decisions of State Vs. P.P. Sharma (AIR 1991 SC 1260) and Bakshish Vs. Gumej (AIR 1988 SC 257). Before invoking the Section two conditions must be satisfied, namely, (1) the public servant is removable from office either by the Union Government or State Government and not by any lesser authority and (2) he is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty. Immunity from prosecution with sanction extends only to acts which can be shown to be done in discharge of official duty or purported to be done in such discharge; to an offence arising out of an abuse of official position by an act not purporting to be official does not require sanction. In the instant case, the petitioner does not plead as to who is his appointing officer nor does he state as to how he claims to be a public servant having the protection of Section 197 Cr.P.C.. It is also not his case that he acted on the basis of the orders of his superior officer. All these facts can necessarily be proved by leading evidence at a full dressed trial before entitlements of the petitioner to the benefit of Section 197 Cr.P.C. can be decided In the aforesaid circumstances, I do not find any merit in this application as in the absence of materials set forth hereinbefore in the foregoing paragraphs, the petitioner would be required to prove his - 6 - bonafides and claim of being a public servant by leading cogent evidence in that regard. Accordingly, this application fails and is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 7th of November, 2008. Pradeep Srivastava/A.F.R.