IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5106 of 2009 GURFAN AHMED Versus THE STATE OF BIHAR & ANR For the petitioner : Ms. Shri Nandan Pd. Singh, Mr. Ashok Kumar Advocates For the State : Md. Mushtaque Alam, A.P.P. ----------- 4. 6.12.2010 Heard. This Criminal Miscellaneous application has been filed for quashing the order dated 7.8.2006 by which the learned Judicial Magistrate Ist Class, Sherghati, Gaya has taken cognizance under Section 504/34 of Indian Penal Code and the entire proceeding has been taken in Complaint Case No. C 160 of 2005. The prosecution case has been alleged in the complaint petition that the complainant is a dealer of Public Distribution System. He got 550 liter of the kerosene on 30.3.2005 for distribution. The Anchal Adhikari did not order for distribution. Again the complainant got 1,000 liter of kerosene on 20.4.2005. An information was given to the Circle officer on 19.4.2005 for distribution of the kerosene amongst the consumers and it is alleged that all the accused persons came to the public Distribution System shop which is situated in his residential house and demanded the Stock Register of the kerosene oil and also given the Stock Register of grains received under the Antoyoday Scheme for physical verification. It is further alleged that both the accused persons impressed that the Stock Register of physical verification found to be correct and then it was requested that this fact be recorded in the register and given permission for 2 distribution of kerosene and the grains. It is further alleged that the accused persons after coming to the shop i.e. the place of occurrence where abusing (Sala Harami). It is further alleged that both the accused has no concern with the supply department nor has been authorized by higher officers. It is further alleged that the accused persons demanded Rs.5,000/- for entry for recording the physical verification of the kerosene oil and grains and threatened for not paying the said illegal amount. It is further alleged that Gulfan Ahmad abated the employee Ramchander Chaudhary to take out money from Kurta hanging with the nail on the wall of said shop Ramchander Chaudhary take away Rs. 2,500/- from the said kurta of complainant. The complainant was examined on solemn affirmation and three witnesses examined and on considering the statement of the complainant and their witnesses the summon were ordered to be issued after taking cognizance for offence 504/34 of the Penal Code. The learned counsel for the petitioner submit that the allegation itself absurd and to spite vengeance and tainted with malafide and further the cognizance has been taken without sanction as the allegation in the complaint itself that the act alleged done in course of official duty and the petitioner is a Block Development Officer- cum-Circle Officer and hence required the protection under Section 197 and the learned Magistrate required to consider the same. But learned Magistrate did not consider this aspect and hence order taking cognizance is bad. The learned counsel for the State however, submitted 3 that a complaint has been filed under Sections 500, 504, 317 I.P.C. but the cognizance has only been taken under Section 504/34 of the Penal Code. Moreover, having regard to the fact and circumstance that from the nature of the allegation itself, it appears that the petitioner who is the Circle officer had been to the place of occurrence for verification of the stock of kerosene supplied for distribution under Public Distribution System in the discharge of his official duty and their allegation itself that he came and asked for providing the Stock Register for verification and even it is alleged he verified act alleged to have been done during the discharge of official duty. However having regard to the fact and circumstance when once it is found that the petitioner went to the place of occurrence in connection with discharge of his official duty and the act complained of done during the discharge of his official duty and then even some act is done in excess by authority which is illegal and has been done in contravention of any provision even then a protection of the public servant under Section 197 becomes imperative. As the protection given under Section 197 is to protect public servant against the institution of possibly vexatious criminal proceeding for offence alleged to have been committed to them while they are acting or purporting to act as public servant as the policy of the legislature is to afford adequate protection to the public servant to ensure that they are not prosecuted for anything done in discharge of his official duty without reasonable cause and hence taking into consideration the fact and circumstance 4 since the allegation the protection of Section 197 required for prosecution if the acted something in excess of his limit while discharging of his official duty and protection required to be given hence cognizance taken in the present case without sanction apparently is illegal and hence under the circumstance the application allowed and the impugned order taking cognizance is hereby quashed against the petitioner. Amit ( Gopal Prasad, J.)