Criminal Miscellaneous No.20351 OF 1999 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- PAWAN KUMAR SINHA son of Shri Braj Bhushan Sinha, resident of Vishal Apartment, Bailey Road, P.S.-Shashtri Nagar, Dist.-Patna, and presently posted as Circle Office, Kako Block under the district of Jehanabad …… ……Petitioner Versus 1.STATE OF BIHAR 2.Umesh Chandra Paswan son of Shiva Sharan Paswan, resident of village-Rampur Bara, P.S.-Kako, Dist.-Jehanabad …. …...Opp.Parties ------- For the petitioner: Mr. Anil Kumar Singh, Sr. Adv. For the State: Mr.Abhimanyu Sharma, A.P.P. ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar,J. The petitioner, who at the relevant time, was Circle Officer of Kako Block, Jehanabad, has approached this Court by way of invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 4.8.1999 passed by learned Sub Divisional Judicial Magistrate, Jehanabad in connection with Complaint Case No.216 of 1999. By the said order, the learned Magistrate has taken cognizance for the offences under Sections 323 and 504 of the Indian Penal Code. 2. Short fact of the case is that the complainant, who was dealer under the scheme of Public Distribution System, filed a complaint vide Complaint Case No.216 of 1999 alleging therein that the petitioner had conducted inspection in his shop and thereafter, his books of accounts and other records were seized. It has further been alleged that the complainant approached the petitioner for release of 2 those documents so that he may get allotment for the next month. The petitioner demanded illegal gratification at the rate of Rs.30/- per bag in respect of sugar and Rs.20/- per bag in respect of wheat. The complainant further alleged that other P.D.S. Dealers were also being pressed to give illegal gratification. Many of the P.D.S. Dealer had sworn affidavit before the Notary Public and after noticing this fact the petitioner put pressure on the complainant to withdraw such affidavit and subsequently, it has further been alleged that the petitioner slapped the complainant and the complainant was also abused by addressing him with his caste name and, accordingly, it was alleged that besides committing offence under Sections 323 and 504 of the Indian Penal Code, the petitioner had committed an offence under Sections 3 and 4 of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. After filing the complaint, the complainant was examined on solemn affirmation and he got examined four witnesses in support of the complaint and thereafter, the learned Magistrate, by the impugned order, has taken cognizance for the offences as mentioned above. Aggrieved with the order of cognizance, the petitioner has approached this Court by filing the present petition. 3. On 30.9.1999, while issuing notice to opposite party no.2, this Court had directed that in the meanwhile, further proceeding in Complaint Case No.216 of 1999 pending before the S.D.J.M., Jehanabad shall remain stayed. Subsequently, on 18.4.2000, the present petition was admitted for hearing and it was directed that during the pendency of this application, the interim order passed on 30.9.1999 shall continue and order of stay is still continuing. 3 4. Mr. Anil Kumar Singh, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance as well as subsequent proceeding in Complaint Case No.216 of 1999, has submitted that the present complaint was filed maliciously and that too only with a view to put pressure in the case which was registered on written report of this petitioner. He submits that keeping in view the disturbance in the district of Jehanabad a decision was taken by the District Magistrate, Jehanabad to depute some efficient officers for discharging the duty of supply officer and in compliance of the direction of the District Magistrate by order dated 13.4.1999 certain Circle Officers including this petitioner, who was Circle Officer of Kako Block, were authorized by the Sub.Divisional Magistrate, Jehanabad to discharge the function of Supply Officer in addition to his duty as Circle Officer. Subsequently by order dated 27.4.1999 (annexure-3) the Sub.Divisional Magistrate, Jehanabad directed the Circle Officers for conducting inspection in the shop of P.D.S. dealers and in compliance of direction of the superior authority on 1.6.1999 the petitioner conducted an inspection in the shop of the complainant/opposite party no.2. During the said inspection several irregularities were found in the shop of the complainant and thereafter on 3.6.1999 the petitioner issued show cause notice asking the complainant to give reply. Learned counsel for the petitioner has referred to annexure-4 to the petition at page 38-39. He submits that a show cause notice was duly served on the complainant and thereafter vide annexure-5 the complainant also gave reply. 5. Sri Anil Kumar Singh learned counsel for the 4 petitioner has further referred to annexure-6 to the petition at page 42 which is inspection report conducted by the Sub.Divisional Magistrate, Jehanabad. He submits that the petitioner conducted inspection in several shops of the P.D.S. dealer in the block in question and thereafter vide order dated 9.6.1999 (annexure-6/A) the Sub.Divisional Magistrate, Jehanabad suspended further allotment of several dealers including the complainant of the present case. Learned counsel for the petitioner pointedly placed annexure-6/A i.e. the order of Sub.Divisional Magistrate. He further submits that after conducting detailed enquiry on the written report of this petitioner an F.I.R. vide Kako P.S. Case No.89 of 1999 was registered on 14.6.1999 against the complainant for the offence under section 7 of the Essential Commodities Act(A copy of the F.I.R. numbered as Kako P.S. Case No.89 of 1999 has been brought on record by filing supplementary affidavit dated 11.4.2000). Sri Singh further submits that immediately after F.I.R. was registered on 14.6.1999 on basis of written report of the petitioner dated 13.6.1999, the present complaint petition was filed on 15.6.1999 by opposite party no.2 i.e. after lodging the F.I.R. and thereafter the learned Magistrate after conducting enquiry has taken cognizance of the offences by the impugned order. Accordingly, it has been argued that in the facts and circumstances of the present case, as indicated above, it is a malicious prosecution and on this ground alone the order of cognizance as well as entire prosecution in Complaint Case No.216 of 1999 are liable to be quashed. 6. Learned counsel for the petitioner has also argued that petitioner was officer, who was removable by the State Government 5 and in this case, no sanction order was obtained and without sanction of prosecution by the State Government, the learned Magistrate illegally took cognizance. He submits that in absence of sanction order, the order of cognizance is liable to be set aside. 7. Mr. Abhimanyu Sharma, A.P.P. appearing on behalf of the State has opposed the prayer of the petitioner. He has referred to a number of affidavits, which were sworn by several P.D.S. Dealers and the same were produced by the complainant during the enquiry. He submits that perusal of such affidavits and other materials on record categorically indicate that the petitioner in the garb of discharge of his official duty was demanding illegal gratification from the P.D.S. Dealer and due to non-fulfilment of demand, the complainant was abused and slapped also. He has further argued that this Court, while exercising inherent jurisdiction under Section 482 of the Code of Criminal Procedure, may not interfere at the initial stage of a criminal case. Accordingly, he has prayed for rejection of the present petition. 8. Besides, hearing learned counsel for the parties, I have also examined the materials available on the record. Of course, this court is conscious that at this stage, detailed enquiry is not permissible, but at the same time, if the court is satisfied that allowing the prosecution will amount to allowing abuse of process of the court, then certainly, the court should interfere and while interfering this Court may examine such documents, which are required to be looked into by the concerned court. 9. In view of the facts and circumstances of the present case, I am of the view that this is a fit case in which this Court may 6 examine such documents. I have examined different annexures which are orders issued by the public servant. The complainant in his complaint petition itself has admitted that his shop was inspected by the petitioner and his books of accounts were seized. Moreover, the allegation of the complainant that when he approached the petitioner for release of books of accounts so that he may get further allotment is concerned, I am of the view that since on 9.6.1999 itself, the Sub Divisional Magistrate had suspended further allotment in respect of the petitioner and others, there was no occasion for the complainant to approach on 10.6.1999 for release of registers for getting further allotment. Moreover, the petitioner, while discharging his official duty that too with the direction of superior authority had conducted inspection and thereafter, even first information report was lodged against the complainant one day prior to the lodging of the complaint petition. 10. Accordingly, I am of the view that present complaint petition was filed with sole object to put the pressure on the administration to dissuade from the proceeding of criminal case against the petitioner. 11. Accordingly, I am of the opinion that the present complaint petition was filed maliciously and allowing proceeding on such complaint to further proceed will certainly amount to allowing the abuse of the process of the court. Moreover, the learned Magistrate while taking cognizance of the offence was required to examine as to whether sanction for prosecution was granted or not. There is nothing on the record to suggest that sanction for prosecution was granted by 7 the government or not. In absence of sanction coupled with the peculiar facts and circumstances of the present case, I am of the view that order of cognizance is liable to be set aside. Accordingly, order of cognizance dated 4.8.1999 as well as subsequent proceedings in Complaint Case No.216 of 1990 so far as petitioner is concerned, are hereby set aside and the petition stands allowed. Patna High Court The 29th April,2010 NAFR/Md.S. ( Rakesh Kumar, J.)