IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.9585 of 1999 ***** Against the order dated 08.01.1999 passed in Cr. Rev. No. 385 of 1998 by the Additional Sessions Judge, Purnea arising out of Complaint Case No. 737 of 1998 and also quashing of cognizance order dated 28.07.1998 passed by Chief Judicial Magistrate, Purnea. 1. Mukha Lal Paswan, Son of Sri Asharfi Paswan, O/C Barhara Police Station, Barhara, District-Purnea. 2. Skand Kumar, Son of Sukdeo Yadav, Munshi of Barhara Police Station, Both are residing at Barhara, Police Station Barahara, District-Purnea. .... .... Petitioners. Versus 1. The State of Bihar. 2. Sikandar Kumar Jaiswal @ Sikandar Kumar Bhagat, Son of Hari Pd. Bhagat, Resident of Village-Basudeopur, Police Station-Barahara, District- Purnea. .... .... Opposite Parties. Appearance : For the Petitioners : Mr. Ray Saurabh Nath, Advocate. For the Opposite Parties: Mr. Ashwini Kumar Sinha, APP. CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Sheema Ali Khan, J. Notice was issued in this matter to the opposite party-complainant. However, nobody has appeared to assist this Court on behalf of the Opposite Party No. 2. 2. By order dated 22.11.1999, the question passed by the learned Single Judge, was whether in the absence of sanction under Section 197 of the Code of Criminal Procedure, cognizance would be taken of the offence alleged, against a person who is a public servant. In order to hold that Section 197 of the Code of Criminal Procedure is applicable Patna High Court Cr.Misc. No.9585 of 1999 dt.11-08-2011 2 in this case, the Court had observed that it must be satisfied that the petitioners were public servants, not removable from their office save by or with the sanction of the Government. The Second issue raised before us is this court may consider that the petitioner has a good case on merits, as it is malafide prosecution by the brother of a person, who had been arrested in view of a criminal case filed earlier against him. 3. The facts are that one Kari Miyan had lodged the First Information Report on 03.06.1997 which is numbered as Barhara P.S. Case No. 101 of 1997. In the said case, it has been alleged that he along with his employer were traveling on a tractor, when four persons came on two motorcycles and after threatening the informant and others, kidnapped his employer Nand Lal Taparia. When the matter was brought to the notice of the Inspector and Sub-Inspector of Barahara Police Station, investigation began in the aforesaid case and during investigation, the I.O. arrested Devendra Bhagat. After his arrest on 02.07.1998, his brother Sikander Kumar Jaiswal @ Sikander Kumar Bhagat filed a complaint numbered as 737 of 1998. In the said complaint, it has been alleged that the complainant’s brother is a political worker associated with Bhartiya Janta Party (BJP) and runs a shop, in the meantime the police constables came on 02.07.1998 and arrested him forcibly and he was Patna High Court Cr.Misc. No.9585 of 1999 dt.11-08-2011 3 detained in custody for more than forty hours. It has also been alleged when the complainant went to meet his brother at the police station, he was threatened. Finally, he filed a Complaint Case alleging wrongful confinement. The Complaint Petition also mentions that the petitioners forcibly took away Rs. 6000/- and a wrist watch from his brother. The court will first examine as to whether the Complaint’s Case was filed with malafide intentions. It will appear from the First Information Report, as well as the complaint petition that Devendra Bhagat was arrested by these petitioners. The order of the Judicial Magistrate as well as the First Additional Sessions Judge, Purnia, held that Devendra Bhagat was arrested on suspicion in Barahara P.S. Case No. 101 of 1997. Once he was arrested as a suspect in a case, it cannot be said, that the arrest was for any malafide reason. Obviously, the arrest was made on the basis of the material in the case diary. Strangely enough, the Revisional Court has come to a finding that there was no material to arrest Devendra Bhagat on the basis of the supervision note. If the court below felt that the arrest was made illegally and was made to harass Devendra Bhagat, then the court ought to have examined the case diary of Barahara P.S. Case No. 101 of 1997 to substantiate this finding of the court. Mere reference to the supervision note will not justify Patna High Court Cr.Misc. No.9585 of 1999 dt.11-08-2011 4 the finding that there was no material to arrest Devendra Bhagat. On perusal of the order dated 08.01.1999, this Court comes to the conclusion that the Complaint Case has been deliberately instituted with malafide intentions, as the petitioners in furtherance of their duty to investigate and arrest persons suspected of the offence under Sections 364 and 365, in Barahara P.S. Case No. 101 of 1997, have been booked in the Complaint Case. 4. In view of the aforesaid finding this Court need not to address the question of applicability of Section 197 of the Code of Criminal Procedure to the petitioners. Accordingly, the order dated 08.01.1999 passed in Criminal Revision 385 of 1998 and order dated 28.07.1998 is passed in the Complaint Case No. 737 of 1998 is quashed. 5. This application is allowed. Shyam Kishore Sharma, J., I agree. Patna High Court, Patna Dated the 11th of August, 2011 N.A.F.R. kksinha/- (Sheema Ali Khan, J.) (Shyam Kishore Sharma, J.)