IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45251 of 2007 SUNIL DUTT JHA S/O Late Arindra Kishore Jha, @ Birendra Kishore Jha, resident of village Banu Chapra, P.S. Bettia, District East Champaran (Betia). At present holding the post of B.D.O. Cum C.O. Rohika Block, District-Madhubani. Versus 1.STATE OF BIHAR 2.Most. Asha Kumari W/O Late Raj Kishore Prasad resident of village Sadikpur Muraul P.S. Sakara, District Muzaffarpur. At present A.N.M. Lady Health Visitor Sakara Additional Centre Sakara, P.S. Sakara, District Muzaffarpur. ----------- 3 26/3/2010 Heard counsel for the parties. Mr. Gajendra Kumar Jha, learned counsel for the petitioner while assailing the impugned order taking cognizance under sections 420, 467, 468 and 471 of the Indian Penal Code as against the petitioner Sunil Dutt Jha, has confined his submissions that since the allegation against the petitioner is that he had in exercise of his official duty working as Circle Officer, Muraul had passed certain order of mutation of land claimed by the complainant-opposite party no.2, any resultant criminal action could be taken against him only after grant of sanction by the State Government in terms of section 197 of the Cr.P.C. He would submit that admittedly no such sanction of the prosecution had been obtained by the complainant, but the court below ignoring this aspect had taken cognizance and as such the order so far it relates to taking cognizance for the offence in question and issuing summons against the petitioner cannot be sustained in law. Counsel appearing on behalf of the opposite party 2 no.2, on the other hand, would submit that the issue of sanction of the prosecution could be gone into even at the time of trial and that the petitioner working as a Circle Officer had passed the order of mutation without verification of records. The whole purpose for incorporating the provision of sanction is to avoid vexatious/false prosecution of a dutiful officer of the Government. The allegation, that the petitioner in exercise of his office duty as a Circle Officer had passed wrong/illegal order of mutation by acting on a interpolated document, may have a criminal tinge, but then his such acts are squarely covered by exercise of official powers in course of discharge of his duty. In that view of the matter, this Court would quash the impugned order taking cognizance and issuing summons against the petitioner. At the same time, the petitioner cannot be allowed to go scot free and accordingly it is directed that the Land Reforms Commissioner-Cum- Principal Secretary, Revenue Department will call for the records of the connected case records from which Memo No. G-260 dated 13th February, 1988 was issued as with regard to mutation of 2 bigha 10 kathas of land in the name of husband of complainant-opposite party no.2, which is said to have been subsequently mutated under the order of the petitioner, Circle Officer, Muraul dated 8.10.1997 in the name of Sitaram Singh. In the event, the Land Reforms Commissioner would find that the petitioner had committed misconduct in passing the 3 aforementioned order, he would initiate a proceeding for major penalty in terms of Discipline Control and Appeal Rules so that in future no Public Officer after becoming free from the liability of a criminal case on account of want of sanction can proceed to do the illegal act in exercise of his official power. If, however, the Land Reforms Commissioner would find that the order of the petitioner allowing mutation in the name of Sitaram Singh was correct and justified, that would be the end of the matter and no further action will be taken against the petitioner. Let a copy of this order along with records of this case be produced before the Land Reforms Commissioner by opposite party no.2 and/or her representative and the Land Reforms Commissioner will thereafter pass an appropriate order within a period of six months from the date of production of a copy of this order. Subject to the aforesaid observation/direction, this application is allowed. Abhay Kumar ( Mihir Kumar Jha, J.)