IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39813 of 2007 SHAMIM AHMAD KHAN SON OF SRI ASBULLAH KHA, R/O VILLAGE- LAHWAR, P.S.- KEUTI DISTRICT, DARBHANGA Versus 1. STATE OF BIHAR 2. MAHANTH SHYAM BIHARI DAS SON OF KEDAR SINGH CHELA LATE RAM RATAN DAS, R/O VILLAGE- KHAMHAR, P.S.- MUFFASIL, DISTRICT-BEGUSARAI ----------- 5 19/03/2010 Heard learned counsel for the petitioner and learned counsel for the State. No one is appearing on behalf of the opposite party no. 2 despite the fact that Vakalatnama has been filed on his behalf. In this case proceeding has already been stayed by this Court vide order dated 5.12.2007. The petitioner has challenged the order taking cognizance dated 18th May, 2007 passed in Complaint Case No. 1684 C of 2006 by the learned Chief Judicial Magistrate, Begusrai whereby cognizance for the offence under Section 323 of the Indian Penal Code was taken against him. Submission is that the petitioner was posted as Officer In Charge, Mufassil Police Station, Begusrai and he got a confidential information that the Mahanth of Khamhar Thakurbari had illegal connection with notorious criminals of the Begusarai and the criminals were assembling in the Thakurbari of the Mahanth. A raiding party was organized and the Thakurbari was searched where a country made loaded pistol was 2 recovered from the bed of the accused Mahanth. At that time 10 cartridges were also found there. This statement has resulted into registration of Mufassil P.S. Case No. 261 of 2006 under Sections 25 (1-B) (a), 26 (ii) of the Arms Act against the accused, namely, the opposite party no. 2. It appears from the annexure-2 that when the accused, namely, the opposite party no. 2 was produced before the learned Chief Judicial Magistrate, a query was made as to whether there was any complaint against the police or not; upon which the opposite party no. 2 did not make any complaint. Seizure of arms has been supported by the opposite party no. 2 himself because his signature is available on the seizure list itself. Two days after the lodging of the case against him, a complaint was filed by the opposite party no. 2. from the District Jail, Begusarai against the petitioner and cognizance has been taken. Submission is that the complaint case was filed by the opposite party no. 2 only with a view to obstruct the petitioner from performing his official duty for which he was entrusted by the law. The prosecution against the opposite party no. 2 in Muffasil P.S. Case No. 261 of 2006 has been sanctioned by the District Magistrate, Begusarai on 28.9.2006 vide memo no. 1433. The grievance of the petitioner is that the 3 learned Magistrate has taken cognizance against the petitioner ignoring the provision of Section 197 of the Code of Criminal Procedure because the role of the petitioner was not in his private capacity rather it was in furtherance of discharging his common duty. Against the Opposite Party no. 2 the FIR was lodged on 30.8.2006 under the provisions of the Arms Act vide Mufassil P.S. Case No. 261 of 2006 for recovery of arms and ammunitions and the instant case has been lodged two days after his remand to jail. Notice was issued to the opposite party no. 2. He entered his appearance by filing a Vakalatnama on his behalf but no one has appeared to oppose the prayer of the petitioner. Considering the facts and circumstances of the case as also that the petitioner was discharging his official duty, the order taking cognizance dated 18.5.2007 passed in Complaint Case No. 1684 C of 2006 and subsequent proceeding arising out of that case are quashed. In the result this application is allowed. avin (Shyam Kishore Sharma, J.)