IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.28344 of 2009 Rajesh Kumar Tiwary Versus State Of Bihar & Anr -------------- 03 14.11.2011 This petition has been filed by the petitioner- Rajesh Kumar Tiwary for quashing the order dated 4.6.2009 passed by Sri N.B.Lal, Judicial Magistrate, Bhagalpur in Complaint Case no. 880/2008 by which and whereunder the learned Magistrate having found prima facie case under sections 323 and 504 of the IPC ordered to issue summons upon the petitioner to procure his attendance for facing trial in the above stated case. 2. I have already heard all the parties and in my view, this petition can be disposed off at the stage of admission itself. 3. The brief fact, which lies to file this quashing petition, is that opposite party no.2, namely, Dr Awadhesh Kumar Jha, filed Complaint Case no. 880/2008 in the court of learned Chief Judicial Magistrate, Bhagalpur alleging therein that on 15.5.2008 at about 12 p.m, while he was examining his patients in his clinic-cum-residential house, the petitioner entered his clinic and asked to send Rs 10,000/- using abusive language and when opposite party no.2 made protest, the petitioner pointed out pistol upon him and also pulled his hand as a result of which opposite party no.2 fell down from chair and sustained injury and the petitioner also took some photographs of the house and clinic of opposite party no.2. The reason behind the alleged occurrence is said to be land dispute between opposite party no.2 and one Raju Singh and the petitioner being police official in collusion with the aforesaid Raju Singh 2 used to torture and threaten the opposite party no.2. 4. The learned Chief Judicial Magistrate, Bhagalpur transferred the aforesaid complaint petition to the court of Sri N.B. Lal, Judicial Magistrate for enquiry and trial and having conducted the enquiry the learned Judicial Magistrate passed the impugned order in the manner as stated above. 5. Learned counsel appearing for the petitioner challenged the impugned order submitting that on 20.3.2008 one Shiv Shankar Jha gave a petition to the DIG, Bhagalpur range leveling certain allegations against opposite party no.2 in respect of land dispute and having receipt of the aforesaid application DIG, Bhagalpur range directed the petitioner to make an enquiry and report to him and after that the petitioner inspected the disputed piece of land and recommended for initiation of proceeding under section 144 of the Cr.P.C in respect of the above stated disputed land and in routine inspection on 16.5.2008 when one ASI, namely, Janeshwar Ram along with Havaldar Mahendar Prasad of Adampur police station visited at the disputed land, they found opposite party no.2 along with 10 to 12 persons being armed with fire arms were engaged in construction work and when the aforesaid police officials forbade the opposite party no.2 and his henchmen to make any construction, they became infurious and not only assaulted the aforesaid police officials but also tried to snatch the official arms and after that an FIR bearing Adampur P.S. Case no.325/2008 was lodged against opposite party no.2 and others. It is further contended by him that when opposite party no.2 learnt about the institution of the above stated Adampur P.S. Case 3 no.325/2008, he filed the above stated complaint case with a concocted and false story. It is further contended by him that opposite party no.2 is a man of criminal antecedent and several cases were lodged against him. It is further contended by him that learned Judicial Magistrate did not pay any heed towards this fact that no sanction was taken prior to taking cognizance against the petitioner who is a government employee and acted in discharge of his official duty. It is further contended by him that the case of this petitioner is squarely covered by the decision reported in the State of Haryana vs Bhajan Lal 1992 Suppl.(I) SCC 335. 6. On the other hand, learned counsel appearing for the opposite party no.2, supported the impugned order submitting that a prima facie case under sections 323 and 506 of the IPC is made out against the petitioner. It is further contended by him that in course of enquiry a roving enquiry is not essential and Enquiring court has to see only as to whether prima facie case is made out or not and, therefore, the learned Magistrate has rightly passed the impugned order and there is no scope for this court to interfere into the impugned order. It is also contended by him that so far as initiation of proceeding under section 144 of the Cr.P.C as well as registration of Adampur P.S. Case no.325/2008 against the petitioner are concerned, the same are defence of the petitioner and the defence of the petitioner would be considered in course of trial. It is also contended by him that there was no necessity to take sanction before taking cognizance against the petitioner because case of the petitioner does not come under the purview of section 197 of the Cr.P.C. 7. Having heard rival contentions of both the parties I have gone 4 through the record. Certain facts are admitted between the parties. It is an admitted position that at the relevant time the petitioner was posted as Officer Incharge of Adampur police station and furthermore, at the direction of DIG Bhaglapur range, he visited the disputed land and recommended for initiation of proceeding under section 144 of the Cr.P.C in respect of the disputed land against opposite party no.2 on 9.4.2008. It is also an admitted fact that the alleged occurrence took place on 15.5.2008 i.e. after one month of the initiation of the above stated proceeding of section 144 of the Cr.P.C. It is also an admitted position that on 27.10.2007 a proceeding under section 144 of the Cr.P.C had been initiated in respect of the disputed land but the aforesaid proceeding was dropped on 21.2.2008 and after that the petitioner having got telephonic message went at the disputed plot and apprehended two labourers of opposite party no.2, particularly, in the circumstances, when there was neither any proceeding under section 144 of the Cr.P.C nor there was any stay in respect of the disputed land. Furthermore, it is also an admitted position that on the basis of report of the petitioner, again a proceeding under section 144 of the Cr.P.C in respect of the disputed land was initiated on 21.3.2008 and after initiation of the aforesaid proceeding, police officials again went at the disputed land without having any complain in respect of the above stated disputed land. It would appear from perusal of the contents of the complaint petition that there is specific allegation against the petitioner that he misused his official position and on 15.5.2008 went at the disputed land and not only abused opposite party no.2 but also pulled him from his chair. It is settled 5 principle of law that at the time of enquiry under section 202 of the Cr.P.C the court has to see only as to whether a prima facie case is made out or not and at this stage roving enquiry is not necessary. Therefore, in my view, the case of the petitioner does not come under the purview of decision reported in the State of Haryana vs Bhajan Lal 1992 Suppl.(I) SCC 335. 8. Admittedly, petitioner was Officer Incharge of Adampur police station at the relevant time and there is allegation that he abused and mishandled opposite party no.2. The use of filthy abuse is not connected with the discharge of official duty of the petitioner and, moreover, the service of the petitioner is not removable by the State so he is not to get protection under section 197 of the Cr.P.C. Therefore, I am of the opinion that there was no necessity to take sanction order before taking cognizance against the petitioner. 9. On the basis of the aforesaid discussions, I am of the opinion that this is not a fit case in which this court should exercise its inherent power vested under section 482 of the Cr.P.C. Accordingly, this petition stands dismissed. 10. The stay granted by this court vide order dated 6.10.2009 shall stand vacated. 11. Let this order be communicated to the concerned court for needful. Shahid ( Hemant Kumar Srivastava,J)