IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.300 of 2009 DURGESH NANDAN Versus THE STATE OF BIHAR & ANR For the petitioner : Mr. Ravi Kumar, Advocate For the O.P. : Mr. Utsav Kumar, J/C to Mr. Partha Sarthy For the State : Mr. Damodar Pd. Tiwary, A.P.P. ----------- 4. 14.12.2010 Heard. This is an application for quashing the order dated 13.8.2008 passed by the learned Judicial Magistrate Ist Class, Sherghati, Gaya in Complaint Case No. C-240 of 2007 whereby the summons has been issued against the accused persons after taking cognizance holding prima facie case is made out under Sections 323 and 504 of the Indian Penal Code. Prosecution case as alleged in the complaint petition that the wife of the complainant is a candidate for appointment of Anganbari Shevika under the Child Development Scheme. It has further been alleged that some irregularities were found in connection with the appointment of Anganbari Shevika. In this regard the complainant gave a written information to the District Magistrate. The District Magistrate entrusted enquiry of the said allegation to the S.D.O. Sherghati. It is further alleged that the S.D.O. made the enquiry a mockery and called the complainant and the witnesses and others at his office and impressed that he has found the allegation true and he has taken decision at present and asked them to sign on the complaint with regard to withdrawal of the complaint so that proper decision may be taken. It is further alleged that believing the S.D.O. the 2 complainant signed on complaint withdrawing the complaint. It is further alleged that the S.D.O. impressed the complainant to sit outside his chamber for some time and he will ultimate with decision after some time. It is further alleged that all the complainants and his witnesses remained there for four hours but they were not called to intimate and then it is alleged that the complainant along with his witnesses entered into the official chamber of the S.D.O. and asked about the appointment and the result of enquiry and then it is alleged that the S.D.O. asked them to flee away and even threat to abuse assault and implicate in false cases and they will complain in the court then the complainant protested on which S.D.O. Durgesh Nandan accused lost his temper and throw the paper weight which hit on the shoulder and abated the accused no.2 to take them out and assault and then it is alleged that accused no.2 take out the complainant from the official chamber catching hold of the callor and assaulted slaps and asked. On complaint petition four witnesses were examined and the considering the facts and circumstances the learned Magistrate ordered to issue process against the petitioner after taking cognizance under Sections 323 and 504 holding that sanction under Section 197 Cr.P.C. case be taken even after framing charge relying upon 2007 (2) P.L.J.R. 415. The learned counsel for the petitioner however, submitted that the occurrence took place in the official chamber as apparent from the allegation made in complaint that complainant and 3 the witnesses entered into the official chamber of the S.D.O. while he was doing his official work and was amidst the enquiry given by the District Magistrate in connection with the irregularities alleged in the appointment of Aganbari Sevika for which the wife of the complainant was a candidate and in such circumstance the allegation made is inherently improbable absurd and has been made malafidly as the complainant had interest in the enquiry. It has further contended that the act alleged is done in course of official duty by public servant and the order taking cognizance suffer from the fact that sanction has not been accorded. It has further been contended that the protection given under Section 197 is to protect public servant against the institution of vexatious criminal proceeding for offence alleged to have been committed by them while they are acting or purporting to act as the public servant and the sanction required to be taken at the outset where the offence squarely cover to have been done in course of official duty. The learned counsel for the State however, contend that various decisions in which it has been held that sanction can be accorded at any stage and supported the order taking cognizance. Hence, in the fact and circumstance the question for consideration whether under the fact and circumstance the order taking cognizance sustainable particularly without prior sanction. However, reverting to the facts and circumstances of the case the main allegation that the S.D.O. was handed over the enquiry with regard to the allegation made by this complainant regarding the 4 irregularity in the appointment of Abanbari Sevika in which the wife of the complainant was a candidate. The District Magistrate handed over the enquiry to the S.D.O. who is the petitioner and it is alleged in this background for S.D.O. proceeding with the enquiry and it is alleged that (the S.D.O. he called the complainant asked them to wait and he will give his judgment. However, the allegation at this stage itself appears to be absurd that the S.DO. required to give the report to the District Magistrate who has entrusted the enquiry on the complaint for the offence, however, it is further alleged that while the S.D.O. was preparing the report in his chamber the petitioner along with other witnesses entered into the official chamber of the S.D.O. and then it is alleged that) the S.D.O. asked them to flee away and then threat to abuse and assault and then the complainant protested on which the S.D.O. throw a paper-weight which hit his shoulder and abated the accused no.2 the peon and to drive them out. However, from this allegation it is apparent that it is the complainant and witnesses who entered into the chamber provocated and when the S.D.O. asked them to go out they protested and then S.D.O. throw a paper-weight asked the peon to drive the complainant hence act apparently happened in the official chamber when complainant enter into the official chamber while S.D.O. was in discharge of his official duty S.D.O. asked his peon to drive them out also apparently in discharge of his duty and even ask the peon to drive them out and hence the act alleged clearly show that S.D.O. acted in discharge of his duty and even if assuming some excesses has been done in the official duty acting to prevent the 5 person from entering into the chamber or driving them out the sanction under Section 197 required to be provided to save them from unscrupulous litigant and public policy to protect the public servant from criminal proceeding from such unscrupulous litigants. However, the question arise when sanction is required from such unscrupulous litigants. However, it is well settled that when sanction required depends on fact of each case. If the act alleged apparent from allegation squarely falls within the act done in discharge of official duty then it requires to be applied at initial stage but if act alleged in complaint case does not squarely cover under the discharge of official duty and it appears to be colorable exercise and it required further evidence either by prosecution or defence to establish the fact that act squarely cover to have been done in discharge of official duty then the sanction may be obtained at latter stage or if the act alleged does not at all cover to have been done in discharge of official duty then no sanction at all is required. However, reverting to the fact and circumstance of the present case the complainant has filed a complaint regarding irregularities in the appointment of Aganbari Sevika to the District Magistrate The said complaint was handed over for enquiry to the S.D.O. and is a midest enquiry the complainant entered into the chamber and alleged that as per the assurance the S.D.O. did not give him the judgment then the S.D.O. asked the peon to drive itself indicates act was done in discharge of duty and allegation is mala fide and the vexatious while the S.D.O. in his chamber in discharge of his 6 official duty and hence the allegation made apparently have the nexus with the official duty. However, it is alleged that the S.D.O. throw paper weight which hit his shoulder but no corresponding injury has been brought from the enquiry by injury report and the allegation that he would ask to drive out and hence nature of the allegation as such to be protected under Section 95 of the I.P.C. itself that no reasonable man can take care of however, the allegation itself apparently appears to be done in discharge of his official duty and motive of the complainant apparently appears vexatious criminal proceeding at the hand of litigant public as the complainant as made allegation against the S.D.O. while in discharge of his official duty in his official chamber when he was possessed with enquiry on the complaint filed by the complainant to the District Magistrate regarding the irregularities in the appointment of Aganbari Sevika for which the wife of the complainant was a candidate. However, learned Magistrate relied upon a decision reported in 2007 (2) PLJR Page 415 held that Magistrate cognizance can be taken at any stage. However, the fact of the case relied upon is that petitioner in that case was an accused holding the post of Enforcement Sub-Inspector in Transport Department, Government of Bihar and on the date of occurrence he was deputed for special vehicle checking drive at Pipra Kothi was extorting money in the garb of checking vehicles paper under threat and coercion. First Information Report was lodged by one Dyakant Misra an official posted under the Collectorate of East Champaran. He has stated that the District 7 Magistrate directed him to verify the fact after spot inspection in the background of allegation that the petitioner in the garb of exercising his power for vehicle checking as mobile enforcement sub-inspector was extracting money illegally from various transport/truck driver for which they have resorted to a blocked which in turn created law and order situation on the main National Highway. The informant Dayakant Mishra visited place of occurrence and he found large number of vehicle park from various parts of the country leading to a complete jamming of the road against the so-called extraction being committed by the petitioner in the garb of checking their papers. Large scale of money was being demanded under threat of arrest seizure and other lost of harassment. The informant was given written complaints by various truck drivers and in the complaint they stated the specific amount of money which was collected by the petitioner illegally. On prima facie evidence having emerged the enforcement was directed to lodge an F.I.R. and hence the facts and circumstances of the case reported in 2007(2) PLJR Page 415 the F.I.R. was lodged at the instance of District Magistrate after due verification however the allegation itself shows that the act alleged was not done in exercise of official duty but under clock and creating a situation where the prosecution has made out a case that the act done was not discharged of his official duty but in dereliction of duty or in the clock or colour of official duty. Hence the fact and circumstance reported in the decision and the principle enunciated in 2007(2) PLJR not applicable to the facts and circumstances of the case. 8 Hence taking into consideration the fact and circumstance of the present case the act alleged in complaint itself apparent to have been done since in discharge of his official duty and even if the petitioner had acted somewhat excess cover an act done in official duty there itself entitled to protection under section 197 from the unscrupulous private litigant. See 197 Cr.P.C. provides that if act alleged done in discharge of official duty no court shall take cognizance except with previous sanction. Hence the order taking cognizance suffer from illegality and jurisdictional error and hence the impugned order taking cognizance is hereby set aside and the application is allowed. Amit ( Gopal Prasad, J.)