IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1165 of 2008 MAHENDRA BISWAS Versus STATE OF BIHAR ----------- 3 17.03.2009. Heard learned counsel for the parties. 2. The petitioner is aggrieved by order dated 27.8.2008, passed by Chief Judicial Magistrate, Gaya in Gaya Mufassil Police Station case no. 32 of 2008 by which he has taken cognizance against petitioner and others for offence under sections 384,406,420 and 120B I.P.C. 3. The Circle Officer (CO), Manpur lodged a written report to Officer in charge, Gaya Mufassil stating therein that when he inspected Weight and Measure Office on the instruction of District .Magistrate. Gaya, Binod Kumar and Md Sikandar Khan, so called agents were caught taking papers and money from the shopkeepers. Shopkeepers present there stated that these agents used to take double the amount for issuing office receipts otherwise they threatened not to prepare receipts in future. The aforesaid agents accepted in their statements that they used to give the money to office staff Muneshwar Manjhi, head clerk Indradeo Narain Rai, Weight and Measure Inspector Bansidhar Prasad and Inspector Mahendra Bishwas, the petitioner of this case. Police after investigation submitted charge sheet under sections 384,420,406 and 120B I.P.C. 4. Learned counsel raised two submissions that he is a public servant and in view of sections 7 and 8 of the Standards of Weight and Measure (Enforcement) Act, 1985 (in short the Act) he cannot be prosecuted without sanction. He further submits that no case under - 2 - sections 384,420,406,120B I.P.C. would be made out against him. 5. Section 7 of the Act states that the Controller and every Additional Controller, and every Inspector, and every other officer authorized by or under this Act to perform his duty shall be deemed to be a public servant within the meaning of section 21 of the I.P.C. 6. As per section 8 of the Act, no such employees would be prosecuted for performing an act or duty in respect of anything which is in good faith done or intended to be done under this Act. 7. Section 197 Cr.P.C. also provides that sanction is necessary for prosecuting public servants, if he is accused of an act while acting or purporting to discharge official duty. The objects of such provision are to protect a public servant from vexatious and malicious prosecution. 8. The prosecution in the instant case has alleged that the money extorted from the shop keepers was also distributed to the petitioner and other employees. The allegation in nut shell is that petitioner also shared the booty extorted from the show keepers for getting their works done. The alleged act of receiving such illegal gratifications will not be an act in discharge of official duty. The petitioner as such would not be entitled to either protection under section 8 of the Act nor under section 197 Cr.P.C. 9. The submission of petitioner that no case of cheating or criminal breech of trust is made out, seems to have substance. There is no allegation that the petitioner committed or misappropriated any property etc entrusted to him or for that matter cheated anyone much - 3 - less than the informant. In this view of the matter, this Court prima facie does not find sufficient material for proceeding against the petitioner under sections 406, 420 I.P.C. 10. The petitioner submits that no case would be made out against him under section 384 I.P.C. read with section 120B I.P.C. as the allegation in the FIR is that it was Binod Kumar and Sikandar Khan who threatened shop keepers that they would not get the receipts prepared unless they make payment. I find the submissions devoid of merit. The prosecution has alleged that the money so extorted from the shop keepers used to be distributed amongst other employees of the Weight and Measure department also, and as such the latter would be liable under sections 384/120B I.P.C.. Thus this Court does not find any irregularity in order taking cognizance of offence under section 384,120B I.P.C. 11. However, it would be open to the petitioner to raise these points at the time of framing of charges. The writ petition is allowed to the extent indicated above. Shashi. (S.P.Singh,J).