IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48597 of 2007 1. PRABHAT RAI @ PRABHAT KUMAR RAI, CONSTABLE DRIVER, SON OF INDRA DEO RAI, 1303, POLICE STATION- BIHIA, DISTRICT- BHOJPUR. 2. SURESH RAM, SON OF BAHADUR RAM, A.S.I., POLICE STATION, BIHIA, BHOJPUR. 3. SURESH KUMAR TUDDU, SON OF DEVAN TUDU, S.I., POLICE STATION- BIHIA, DISTRICT- BHOJPUR. 4. RAJA RAM PRASAD, SON OF NAND LAL PRASAD, HAVILDAR, POLICE STATION- BIHIA, DISTRICT- BHOJPUR. Versus 1. THE STATE OF BIHAR. 2. HEMANTI KUAR, WIFE OF LATE MAHENDRA YADAV, RESIDENT OF VILLAGE- NAUSETAD MATHIA, POLICE STATION- BIHIA, DISTRICT- BHOJPUR. ----------- 5 23.03.2010 Petitioners are police personnel and posted during the relevant time at Bihia Police Station in the district of Bhojpur. A complaint petition was filed on 7.9.2005 by one Hemanti Kuar alleging therein that the accused persons (petitioners herein) arrived at the residence of the complainant and commanded her to stay in a room. When she protested, her son was brought and locked inside the room. She was taken to another room. Apprehending the intention of the accused persons, she raised alarm, that attracted the neighbours. Thereafter the complainant along with her son was brought to the police hajat in the thana. She was kept in a separate room whereas her son was kept in men hajat. In the night at 10 p.m., one of the co-accuseds unlocked her and brought her to the quarter of the accused Sub- Inspector of Police where an attempt was made to outrage her modesty. The matter was inquired into. The complainant was examined on S.A. and two witnesses were also examined who 2 supported the allegation. The complainant produced injury reports indicating that she has sustained bruise over right shoulder and right cheek On perusal of the materials on record, the learned Magistrate has taken cognizance of the offence against all the accused persons (petitioners herein) under Sections 323 and 354 of the Indian Penal Code. Learned Magistrate acting in his own discretion, however, did not take cognizance under Section 376/511 IPC. This is the order which is now being challenged by the petitioners. Learned counsel for the petitioners submits that the petitioners admittedly are the police personnel and are, therefore, public servants. They are protected under Section 197 of the Code of Criminal Procedure. There is no sanction to prosecute them and as such the impugned order is bad in law. It is next contended that on 1.9.2005 itself an F.I.R. was lodged by the officer-in-charge of Bihia Police Station (petitioner no. 3) against the son of the complainant and others under diverse sections of the Arms Act for possessing arms without licence. It is, thus, the contention that the present complaint is lodged in retaliation. Counsel for the petitioners referred to and rely upon a judgment rendered by the Bombay High Court in the case of Vijay Chandra Deo Patil versus Satish Sahni (1997) Criminal Law Journal 185. Protection under Section 197 of the Cr.P.C. is available to the public servants including judges, if something is done while acting 3 or purporting to act in due discharge of his official duty. In these circumstances, the court has to insist on sanction before proceeding further in the matter. Here the allegation is that the complainant(widow) was brought to the police station and confined. Thereafter an attempt was made to outrage her modesty in the police hajat itself. Apparently such allegation/action in no stretch of imagination can be said to be acts in due discharge of the official duty. In the case of Vijay Chandra Deo Patil (Supra), the facts were different and distinct. The Court swayed by one fact that the prosecution was lodged much after the period prescribed for prosecution of such offence. In that context, it was also observed that the accused cannot be prosecuted without proper sanction as provided under Section 197 of the Code of Criminal Procedure. In view of the discussion, this Court is not convinced that any illegality has been committed. There is no merit in the application. It is accordingly dismissed. pkj ( Kishore K. Mandal, J. )