IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.12302 of 2009 1. SARITA KUMARI @ SARITA, D/O SRI LAXMIKANT JHA, R/O QR. NO. F/2, KOSHI PROJECT, SAHARSA AT PRESENT POSTED AS CHILD DEVELOPMENT PROJECT OFFICER, PIPRA, DISTRICT SUPAUL 2. RITESH JHA @ SHIVESH JHA @ SHIVESH, S/O DR. L.N. JHA, R/O MOHALLA GANGJALA, P.W. AND DISTRICT SAHARSA .. PETITIONERS Versus 1. THE STATE OF BIHAR 2. JAI MALA KUMARI, W/O AMRENDRA KUMAR, R/O VILLAGE MAKROI, P.S. PIPRA, DISTRICT SUPAUL .. OPPOSITE PARTIES **** For the petitioners .. M/S Subodh Kumar Jha, Anjani Kumar & Pranab Kumar Jha, Advs. For opposite party no. 2 .. M/S Yogendra Kumar & Mr. Dr. M.K. Gautam, Advs. **** /6/ 01.03.2011 This is an application for quashing the order, dated 06.03.2009, passed in Complaint Case No. 934 (C) of 2008 by which the process has been issued against the accused persons after taking cognizance for offence under Sections 323 and 379 of the Penal Code and for quashing the entire criminal proceeding pending before the Chief Judicial Magistrate, Supaul. 2. The prosecution case, as alleged in the 2 complaint case, is that the complainant, Jaimala Kumari, an Angan Bari Sevika, is posted at Angan Bari Centre no. 104, Primary School, Makarai, and accused no. 1, Sarita Kumari, a Child Development Project Officer, is posted at Pipra Prakhand. It is alleged that the said Child Development Project Officer after her appointment, since last three years always made illegal demand of Rs.2,000/- per month and the complainant used to show her inability to pay on which the accused threatened that if Rs.2,000/- is not given then she will not be allowed to live on the post and she will be suspended and dismissed from service in a charge of distribution of take home ration or on any other charge. It is further alleged that on the date of the occurrence, i.e., on 26.09.2008, Sarita Kumari came along with her brother-in-law, Ritesh Jha, with two unknown persons at the said Angan Bari Centre and illegally demanded Rs.2,000/- and when the complainant shows her inability to pay Rs.2,000/- then accused no. 1 ordered to teach the complainant a lesson for not paying Rs.2,000/- monthly on which both the accused abused the complainant and assaulted her on which 3 complainant fell down on the earth and the moment the complainant fell down on the earth, accused no. 2 snatched her golden chain from the neck of the complainant amounting to Rs.14,000/-. It is further alleged that accused no. 2 took out a plain paper and got the signature of the complainant on the plain paper on the point of pistol under a threat on which the complainant got frightened and signed on two plain papers which accused no. 1 kept with her and accused threatened that it will be used, as per the convenience of the accused persons, and further threatened to pay Rs.2,000/- per month in future. 3. The said complaint was filed on 29.09.2008 with regard to the alleged occurrence on 26.09.2008 and the complainant and three witness were examined and after taking into consideration the statement of the complainant and the witnesses the summons were ordered to be issued after taking cognizance for offence under Sections 323 and 379 of the Penal Code. 4. The learned counsel for the petitioners being aggrieved by this order issuing process after taking cognizance has filed this criminal miscellaneous 4 application. The learned counsel for the petitioners submits that the petitioners have been falsely implicated in the case and the allegation made in the complaint is false, frivolous, fabricated in retaliation of the case filed by petitioner no. 1, bearing Pipra P.S. Case No. 107 of 2008, dated 26.09.2008, instituted against opposite party no. 2 for offence under Sections 341, 323, 379, 504, 332 and 333/34 of the Penal Code. It is asserted that petitioner no. 1 is Child Development Project Officer of the said area of Pipra Block and has went to inspect Angan Bari Centre No. 104, Primary School, Makroi, on the complaint of the Mukhiya, dated 22.04.2006, that Angan Bari Centre used to be closed. The petitioner no. 1, the Child Development Project Officer, reached the Centre, she found the Centre closed and both Sevika and Sahayika were absent. After some time Sevika and Sahayika and her husband came at the centre. On enquiry from Sevika about the closure of the Centre, the husband of the Sevika started abusing this petitioner, the Child Development Project Officer, and on protest, it is alleged, the husband started assaulting this petitioner, 5 the Child Development Project Officer, and took away the golden chain and when petitioner no. 1 tried to flee away, she was assaulted. A criminal case was lodged by the Child Development Project Officer on 26.09.2008 and even a report has been sent to the District Magistrate, which has been annexed as annexure in the petition for quashing. 5. The learned counsel for the petitioners , further submitted that the allegation made in the complaint is manifestly absurd, inherent and improbable and the case has been filed maliciously to wreck vengeance to spit on the face of the petitioner for private and personal grudge and the case squarely falls within the ambit and scope of (1998) 5 S.C.C., 749 (Pepsi Food Ltd. & Anr. Special Judicial Magistrate & Ors.), A.I.R. 1992 S.C., 604 (State of Haryana Vrs. Bhajan Lal) and further the act alleged in the complaint apparently has been done during the discharge of the official duty, but, no sanction under Section 197 of the Penal Code has been taken and if the protection is not given under Section 197 of the Penal Code it is difficult to do the official duty and, further, 6 contend that the learned Magistrate while taking cognizance required to made an intelligent enquiry so that an innocent may not be punished, but, the learned Magistrate from the nature of the enquiry, it appears, to have passed the order taking cognizance mechanically without proper application of mind and, hence, the order taking cognizance suffers from illegality and beyond jurisdiction, hence, not sustainable. 6. The learned counsel for the opposite party, however, submits that the allegation made in the complaint makes out an offence and the witness has supported the prosecution case and this Court has no jurisdiction to consider the defence of the accused or even to meticulously examine the fact or the allegation made and the Court is only required to look into the prima facie case on the nature of the allegation made in the complaint on it’s face value and the question of fact alleged in the complaint can not be tested at this stage at the outset, but, required to be decided at the trial. 7. It has, further, been contended that the question of sanction can be considered even at the subsequent stage of the trial and, further, if the 7 allegation made in the complaint making out an offence then the question of malafide become secondary and the prosecution can not be quashed to settle at this stage. 8. Hence, on the respective submissions of the parties, the question for consideration whether the order taking cognizance and the criminal prosecution is sustainable or the continuing of the prosecution amounts to an abuse of the process of the Court. 9. There is allegation that the petitioner, Sarita Kumari, the Child Development Project Officer, used to demand Rs.2,000/- per month since last three years with a threat that if money will not be paid then the complainant, Aagan Bari Sevika, will be put under suspension followed with dismissal on some charge and will not be allowed to continue in service and it is alleged that on 26.09.2008, the Child Development Project Officer, Sarita Kumari, along with her brother- in-law, Sivesh Jha, and two others came to Aagan Bari Centre demanded Rs.2,000/- and when the complainant, Aagan Bari Sevika, showed her inability to pay, the petitioner, the Child Development Project 8 Officer, commanded her brother-in-law to teach her a lesson then her brother-in-law abused, assaulted and snatched the golden chain of Aagan Bari Sevika at the Aagan Bari Centre. However, accepting the allegation made on the face value of the complaint petition the allegation, itself, appears to be manifestly absurd and inherently improbable. It is highly improbable that for non-fulfillment of demand of Rs.2,000/- per month the Child Development Project Officer will order to abuse, assault and order to snatch the golden chain of Aagan Bari Sevika. Had the allegation been made that she was suspended or legal action taken by the Child Development Project Officer can well be understood, but, the allegation of snatching of golden chain for not giving Rs.2,000/- is repugnant to normal common sense and against the modus operandi of the Child Development Project Officer. More over, having regard to the fact that a criminal case has been instituted on 26.09.2008, itself, by the petitioner against the complainant. It is true that a defence of the accused or averment made in the quashing petition or complaint petition filed by the petitioner and even affidavit made 9 is not required to look into and at this stage, the defence of the accused was not required to be considered, but, a document which is of undisputable character can well be looked into as a well settled principle established. However, the first information report lodged by the petitioner, itself, indicates that the case was lodged and who were the parties and it is apparent that this petitioner has lodged a case against the complainant and a police case was instituted on 26.09.2008 and mater even intimated to the Collector and the first information report received by the Chief Judicial Magistrate on 27.09.2008, itself, indicates that prior to the institution of this complaint a first information report was lodged by the Child Development Project Officer with regard to an incidence at the Aagan Bari Centre on 26.09.2008 an undisputed fact without going into the merit of allegation made in the fardbeyan on the basis of first information report lodged as the same may be a disputed question of fact, but, the fact established is prior to the institution of this complainant a first information report was lodged by this petitioner in 10 which the complainant shown as an accused and in this back ground taking into consideration the entire facts and circumstances that the petitioner is the Child Development Project Officer and the complainant is an Aagan Bari Sevika, the act alleged apparently appears to be inherently improbable and manifestly absurd and under facts and circumstances the Child Development Project Officer is a public servant having a superior authority and complainant has been filed by the Aagan Bari Sevika against the Child Development Project Officer making an allegation of snatching of golden chain for non-fulfillment of the illegal demand of Rs.2,000/- whereas the Child Development Project Officer is entitled to visit for inspection of a Aagan Bari Centre and in this back ground a point has been raised that in addition to the allegation made is manifestly absurd and inherently improbable as well as malafide as the case has been instituted maliciously with an ulterior motive for wreck vengeance on the accused with a view to spit him due to private and personal grudge followed with no sanction has been taken to prosecute with an observation that the 11 petitioner had been to the Aagan Bari Centre on a complaint made by the Mukhiya about the irregularities regarding the distribution of take home ration and, hence, had been to the Aagan Bari Centre in discharge of her duty, but, instead of cooperating with regard to the inspection she was abused, assaulted and snatch of her belongings by the husband of the complainant. 10. It is true that the allegation made by the petitioner is not subject to her scrutiny as it regards the disputed question of fact which can not be looked into at this stage. However, before lodging the first information report a suitable preliminary enquiry, into the allegation, by the responsible officer, particularly, with regard to a responsible officer occupying a high position in the locality, is required to be made. The sole object of Section 197 of the Criminal Procedure Code is to protect the officer from vexatious prosecution in discharge of official duty. Here the allegation, itself, by the Aagan Bari Sevika that the complainant is Aagan Bari Sevika and the petitioner is the Child Development Project Officer and the allegation is for illegal demand of Rs.2,000/- else will 12 be suspended and discharged and act alleged is obviously shown to be in discharge of her duty and colourable allegation that the Child Development Project Officer used to demand Rs.2,000/- per month and she came at the Aagan Bari Centre and the occurrence took place at Aagan Bari Centre and the Child Development Project Officer was the In-Charge as apparent from the allegation, itself, and it is clear that there was a reasonable connection between the act alleged and the official duty. However, it can well be said that the demand of Rs.2,000/- and the abuse, assault and snatching of golden chain may not come under the official duty, but, having regard to the allegation, itself, which is quite absurd and inherently improbable and the occurrence took place at the Aagan Bari Centre and the presence of the complainant at the place of occurrence can well be reasonably infer in connection with the official duty and there was reasonable connection between the act, complaint and the official duty. 11. The learned Magistrate, during the enquiry, is required to make an intelligent enquiry about the 13 allegation and also gone into the question whether sanction is required or not in reference to the allegation made in the complaint as the act, alleged, about the demand of Rs.2,000/- that the complainant will be suspended and dismissed on some charges and the act, alleged, appears to have a connection that the discharge of official duty and further that if allegation made that for non-payment of Rs.2,000/- she will be suspended, but, instead of suspension and dismissal allegation is the use of brute force by abusing, assault and snatching of golden chain, itself, by the Child Development Project Officer, who is a lady and her brother-in-law appears to be manifestly absurd and inherently improbable and, further, the institution of a prior case by the petitioner for which the first information report has been lodged on 26.09.2008 and endorsement of the Chief Judicial Magistrate on 27.09.2009 apparently indicates that this complaint has been filed on 30.09.2009 to wreck vengeance to satisfy the private and personal grudge without taking sanction when act, alleged, has a connection with discharge of duty and, hence, a sanction is required 14 12. Having regard to the facts and circumstances, act alleged in connection with discharge of official duty is apparently absurd and inherently improbable as well as malicious the cognizance taken by the Magistrate is without prior sanction appears to be apparently without the non-application of proper mind and allowing prosecution to continue is an abuse of the process of the Court, hence, the impugned order taking cognizance is hereby quashed. The petition is allowed. S.A. ( Gopal Prasad, J.)