IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39667 of 2007 BARUN KUMAR SINHA @ BARUN SINGH @ BARUN SINHA SON OF SRI UMESHWAR PRASAD SINGH, AT PRESTED POSTED AS BRANCH MANAGER OF PUNJAB NATIONAL BANK, ITS B/O NADWAN, P.S.- DHANARUA, PATNA Versus STATE OF BIHAR & ANR ----------- 4 19/03/2010 Heard learned counsel for the petitioner and learned counsel for the State. No one is appearing on behalf of the opposite party no. 2 despite service of notice. The petitioner has challenged the order dated 27.4.2007 passed in Complaint Case No. 70 ( C ) of 2007 (Tasliman Khatoon Vs Branch Manager Nadwan) whereby the learned Judicial Magistrate Ist Class, Massaurhi has taken cognizance for the offence under Sections 406, 420 and 504 of the Indian Penal Code after finding a prima facie case against him. A complaint was filed by opposite party no. 2, namely, the complainant that her husband is suffering from cancer and was on the death-bed. Her son was kidnapped three years earlier with the tempo for which a Sanha was lodged. The complainant used to go to Punjab National Bank, Nadwan branch for withdrawal of the pension amount of her husband. The complainant alleged that the bank used to retain Rs. 1000/- from the pension of her husband as the withdrawal amount was filled as Rs. 7,000/- but only Rs. 6000/- used to be paid. 2 It is further alleged that on 1.3.2007 also when the complainant went to the Bank for withdrawal of pension, again Rs. 1000/- was retained by the bank. On protest the Bank Manager, namely, the petitioner became angry and abused the complainant and her daughter who was accompanying the complainant at that time. The complainant was filed and cognizance was taken. Submission is that no case is made out. There is no explanation as to why the complaint case was filed after 25 days of the occurrence. It has also been submitted that the petitioner was working as Branch Manager in the Punjab National Bank, Nadwan Branch and he is a Public Servant and he cannot be prosecuted in view of the bar under Section 197 of the Code of Criminal Procedure. It has also been submitted that for this reason the complainant has not appeared before this Court for opposing the prayer of the petitioner. It appears that the notice issued in this case to the complainant, namely, the opposite party no. 2 was validly served on her but she has chosen not to appear which shows that she does not want to oppose the prayer of the petitioner for quashing the order taking cognizance and entire criminal proceeding arising out of the instant case. There is no explanation about the delay in filing 3 the complaint case. The occurrence has allegedly taken place in the bank and the complainant had gone there in the capacity of customer of the bank and when she had any grievance then the Branch Manager the petitioner had to act according to his official duty. The petitioner was discharging his official duty at the time of alleged occurrence so cognizance taken without proper sanction is bad in law. Accordingly, the order taking cognizance dated 27.4.2007 passed in Complaint Case No. 70 ( C ) of 2007 by the learned Judicial Magistrate, Ist Class, Massaurhi and the subsequent proceeding arising out of that case against the petitioner are quashed. In the result, this application is allowed. Avin (Shyam Kishore Sharma, J.)