CRIMINAL MISCELLANEOUS No.15200 OF 2003 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- Harendra Nath Dubey Ex Circle Officer, Sadar Circle, Chapra , at present posted as Executive Magistrate, Jamui, At & P.O.& P.S. Jamui, District-Jamui ---------- Petitioner Versus 1. THE STATE OF BIHAR 2. Mosst. Phuljharia, Wife of Late Etwar Rai, resident of Village- Harnarayan Chapra, P.S. Chapra Muffasil, District- Saran ------------------------ Opp.Parties. ------------ For the petitioner: S/Sri Mahesh Narayan Prabat, Ved Prakash Srivastava, and Sanjay Kumar Jha, Advocates For the State: Smt. Indu Bala Pandey, A.P.P. ------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, who was at the relevant time Circle Officer, Sadar Chapra, has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, with a prayer to quash an order dated 30.4.1997 passed by Sri R.C. Srivastava, Judicial Magistrate, 1st Class, Chapra in Complaint Case No.1238 of 1996, Trial.No.334 of 2003. By the said order, the learned Magistrate has taken cognizance of offences under Sections 147,148,323,342,426 and 379 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Saran at Chapra, which was numbered as Complaint Case No.1238 of 1996. The complainant had arrayed nine persons as accused and this petitioner has been named as accused no.7 in the Complaint Case. The Officer Incharge of Chapra Mufassil Police Station 2 and other police officials have also been made accused in the complaint petition. It has been alleged in the complaint petition that on 24.9.1996 this petitioner directed other accused persons to demolish the room of the complainant, which was constructed on Plot No.25. It was disclosed that in the northern side of the Plot, 9 Dhurs of land was allocated to the husband of the complainant in the partition and thereafter she had constructed a room, where she was keeping straw and cattle. On the other portion of the land, she had put stake ( Khuta) and Nad ( big pot for keeping fodder). It was alleged that on the direction of the petitioner, other accused persons had demolished the room. In the said occurrence, while the complainant tried to restrain the accused persons, accused no.1 and other police officials pulled her down, due to which she received some injuries. It has been alleged that villagers raised objection and thereafter accused persons on the basis of showing rifles tried to disperse the villagers from the place of occurrence and in the said occurrence, two other persons were arrested by the police. However, in the evening, they were allowed to return back. On the aforesaid allegation, complaint petition was filed and after conducting enquiry, the learned Magistrate by the impugned order, i.e. order dated 30.4.1997 has taken cognizance of offences under Sections 147,148,323,342,426 and 379 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, the petitioner approached this Court by filing the present petition. On 21.10.2005, the case was admitted for hearing. While admitting, it was directed that during the pendency of this application, the interim order passed on 24.3.2004 shall remain operative. The order of stay is still continuing. 4. Despite the fact that Opp.Party no.2 had entered her appearance through counsel, at the time of hearing none has appeared on her behalf. 3 5. Sri Mahesh Narayan Parbat, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance, has argued that the order of cognizance is liable to be set aside solely on the ground that while taking cognizance, the learned Magistrate has not bothered to examine as to whether the prosecution sanction issued by the competent authority was available on record or not. It has been submitted by Sri Parbat, learned counsel appearing on behalf of the petitioner, while referring to Annexure-2 to the present petition, that for the purposes of constructing a village road, it was noticed on the basis of a complaint filed by the Mukhiya of the area, who has been made accused no.1,in the complaint petition, an encroachment proceeding vide Encroachment Case No.1/1996-97 was initiated by the petitioner on 6.7.1996. In the said proceeding, after completing all the formalities, finally on 16.7.1996 it was directed to get the encroachment removed on 24.9.1996 and thereafter on the date fixed, the police was also requisitioned and taking help of the Arm-Forces steps were taken to get the encroachment from the land removed. It has further been submitted that Encroachment proceeding was initiated against three persons, which includes son of the complainant, namely, Sri Kishore Rai @ Raj Kishore Rai. After removal of the encroachment, a report from the Anchal Amin was received showing that there was no encroachment thereafter and, as such, the encroachment proceeding was closed on 26.9.1996. Learned counsel for the petitioner during the course of hearing has produced a photo copy of the certified copy of the complete ordersheet in Encroachment Case No.1 of 1996- 97 and Annexure-2 is the typed copy of the same. Let it be kept on record. It has been submitted that since the petitioner in course of official duty had taken steps for getting the encroachment removed with the help of police force , it 4 cannot be said that the petitioner had committed any offence. It has further been submitted that if for the time being it is assumed that any action of the petitioner led to commission of any offence, the petitioner was protected under Section 197 of the Code of Criminal Procedure. It was submitted that without prosecution sanction, the learned Magistrate was not required to take cognizance of offence so far as petitioner is concerned. 6. On the aforesaid ground, it has been submitted that the order of cognizance so far as petitioner is concerned is liable to be set aside. 7. Smt. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. 8. Besides hearing learned counsel for the parties, I have also perused the materials available on record including the entire ordersheet in Encroachment Case No.1/96-97. After going through the materials available on record, the Court is satisfied that the learned Magistrate has committed error in taking cognizance of offences, as indicated above so far as petitioner is concerned. Accordingly, the order of cognizance dated 30.4.1997 passed by Sri R.C.Srivastava, Judicial Magistrate, 1st Class, Chapra in Complaint Case No. 1238 of 1996 , Trial No.334 of 2003 as well as entire proceeding so far as petitioner is concerned is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 15th September,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)