IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.43205 of 2008 Sukat Sahni, Son of Late Shankar Sahni, Resident of Village- Senwaria, P.S. Majhaulia, District- East Champaran. --------------Petitioner Versus The State of Bihar --------Opposite Party -------------------------------- 3. 19.12.2011 Heard learned counsel for the petitioner and learned A.P.P. for the State. The present application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) for quashing the order dated 13.8.2008 passed by Sessions Judge, West Champaran, Bettiah in Criminal Revision No. 154 of 2008 by which he has affirmed the order dated 30.7.2008 passed by the Chief Judicial Magistrate, Bettiah in Complaint Case No. 2315 (C) of 2006 by which the complaint was dismissed under Section 203 of the Code. The petitioner had filed Complaint Case No. 2315 (C) of 2006 before the Chief Judicial Magistrate, Bettiah, West Champaran against 8 persons including the Anchal Adhikari and the Chowkidar for an incident which is alleged to have taken place on 25.11.2006 and as per the complaint petition punishable under Sections 147, 148, 323, 379, 447,448, 452, 427, 342, 347, 504, 2 380 and 384 of the Indian Penal Code. Learned counsel submits that petitioner being the complainant was examined on solemn affirmation and three other witnesses were also examined. During such examination the evidence recorded clearly supported the allegations made in the complaint petition against the accused and therefore learned counsel submits that enquiry under Section 202 of the Code being completed, the Court had no discretion but to take cognizance. The original order dated 30.7.2008 by which the complaint has been dismissed under Section 203 of the Code refers to only the injunction of Section 197 of the Code which required sanction of prosecution against a public servant and also the fact that the land claimed by the complainant is under bona fide land dispute which is erroneous both on fact as well as in law. He submits that prior to the incident the petitioner had satisfied the Anchal Adhikari about his right and title of the land in question. He further submits that the law is settled in as much as sanction can be obtained even at the time of pronouncing of final judgment. In view of the same, the ground of dismissal is erroneous and unsustainable. He also submits that the revisional order dated 13.8.2008 is infirm on the very same ground since it has reiterated 3 the ground taken by the C.J.M. for dismissing the revision application. Learned counsel has also relied upon the decision in the case of Rajeshwar Yadav Vs. The State of Bihar & Ors. reported in 2004 (2) PLJR 699 in which inter alia it has been held, especially at paragraph 11, that the question whether a particular case is hit by Section 197 can be determined even afterwards at the time of the main judgment to be passed in the case. Learned counsel for the State has fairly assisted this Court on the question of law and submits that the question of sanction, as stipulated in Section 197 of the Code can be obtained even at a later stage. Considering the facts and circumstances of the case, this Court finds substance in the argument of learned counsel for the petitioner. Once sufficient material had come during enquiry under Section 202 of the Code before the Court concerned, the Court was only obliged to go into the prima facie aspect of the ingredient being made out under various Sections of the Indian Penal Code at the time of taking cognizance. Besides this, even if the Court had genuine and bona fide belief that sanction under Section 197 of the Code is required then the same would have been applicable only against the Anchal Adhikari and Chowkidar and not against the six other accused. Even with regard to the same, after 4 taking cognizance of the offence, the Court could have sent a communication to the competent authority for grant of such sanction. As far as the issue of bona fide dispute is concerned, there was no material before the Court to go into that aspect and decide as to whether there was bona fide dispute or whether there was any such dispute at all. The stage was only for considering whether prima facie sufficient material existed for proceeding in the matter by taking cognizance of the offence as had come out from the statement made in the complaint, right from the evidence adduced of the witnesses including solemn affirmation of the complainant. For the reasons aforesaid the orders dated 30.07.2008 and 13.8.2008 passed in Complaint Case No. 2315 (C) of 2006 and Criminal Revision Petition No. 154 of 2008 respectively, are set aside. The Magistrate shall consider afresh the issue with regard to taking of cognizance from the materials available to him on record. If he finds that sufficient materials exist then he is left with no option but to take cognizance. As far as the same goes with regard to the Anchal Adhikari and Chowkidar, the Court concerned can intimate to the competent authority for grant of such sanction if the same is required in the facts and circumstances of the case. 5 The application stands allowed to the extent indicated above. Anand Kr. (Ahsanuddin Amanullah, J.)