IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22624 of 2007 P.N.SINGH @ PURENDRA NATH SINGH, Sub. Inspector of Police, Son of Late Ram Kishore Singh, Resident of Village-Bhadayar, P.S. Mufassil (Arah), District-Bhojpur at Ara at present posted at police line Sitamarhi, P.S. & District-Sitamarhi. (Sub. Inspector of Police). Versus 1.STATE OF BIHAR 2.Md. Alamgir Son of Md. Nasir Biswas, resident of Basantpur, Kala Diara, P.S. Amdabad, District-Katihar. ----------- 5 4/2/2010 Heard Mr. N.K. Agrawal, learned counsel for the petitioner and counsel for the State. Despite service of notice and appearance of the name of counsel for the opposite party no.2 in the cause list, no one appears on his behalf. The impugned order taking cognizance of offence under section 379 of the Indian Penal Code has been assailed by the petitioner, a police officer, by taking a specific plea that he had searched the boat in question of the opposite party no.2 in exercise of his official duty. Paragraph nos. 10, 11, 12, 13 and 14 of the application gives full detail as with regard to such exercise of power by the petitioner, a police officer. Once this position becomes clear, Mr.Agrawal rightly submits that sanction of prosecution was a condition precedent for taking cognizance. Opposite party no.2 despite service of notice has not filed counter affidavit and as noted above has also not appeared in this case. That being so, this Court would find that the present 2 complaint petition and the resultant order taking cognizance is not sustainable in view of there being no prior sanction of the State Government. Consequently, the impugned order is set aside and the application is allowed. It will be however open for the opposite party no.2 to seek sanction of the prosecution and in the event such sanction is accorded, the court below will proceed to consider afresh the materials on record for passing an appropriate order in accordance with law. Abhay Kumar ( Mihir Kumar Jha, J.)