IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.23748 of 2001 AWADHESH PRASAD SINGH Versus STATE OF BIHAR & ANR ----------- 4. 18.8.2010 Heard Shri Jharkhani Upadhyay, learned counsel for the petitioner, Shri Dashrath Mehta, learned A.P.P. for the State and Shri Tuhin Shankar learned counsel for opposite party no.2. The order which has been brought under challenge before this Court through the present petition is dated 7.7.2001 passed by the Sub-divisional Judicial Magistrate, Jehanabad, in Complaint Case No. 241 of 2000. While passing the order after concluding the inquiry on a complaint petition, the learned Sub- divisional Judicial Magistrate appears dismissing it because the sanction to prosecute the accused was not produced before him. The fact of the case was that the accused, who was an A.S.P., Jehanabad on the date of occurrence, was allegedly driving his Maruti Car rashly and negligently on a highway. He dashed against the scooter which was being driven by the complainant as a result of which some altercation took place between the parties and the accused came out of his Maruti Car and assaulted the complainant by fists and slaps three-four times and when the wife of the complainant, who was also accompanying him, objected to it, he hurled abuses upon her. The complainant attempted to see the Superintendent of Police and other Senior Police Officers but the Superintendent of 2 Police, Jehanabad ws out on account of being on leave and the police officer who was in-charge of the Superintendent of Police did not see him as a result of which he filed the complaint petition. The reason for dismissing the complaint petition in want of sanction for prosecution appears assigned by the court below in paragraph 6 of the impugned order. The learned Magistrate observed in that paragraph that higher police officers, like, S.P. and D.I.G. were on duty for twenty four hours and if any offence appears committed during that course, sanction to prosecute them, was necessary to be produced from the competent authority to take cognizance of the offence. The learned Sub-divisional Magistrate, Jehanabad who passed the order on 7.7.2001 appears completely misreading the law. If the act complained of is so connected with the official duty of a public servant that it could not be separated from it, then, only an order of sanction for prosecution is required under Section 197 Cr. P.C. It has been alleged in the complaint petition itself that opposite party no.2 was in plain clothes and was driving the vehicle rashly and negligently on a highway. Driving rashly and negligently and that too his personal vehicle may not be connected so inseparably with the official function of his that the court could require an order according sanction to prosecute him. From reading of the complaint petition, it could be 3 found that for deciding such an issue no reasonable person could say that the act complained of was so intertwined with the official function of opposite party no.2 that he could not have been prosecuted without the proper sanction order under section 197 Cr. P.C. The order was passed not under the facts of the case but, because a gazetted-rank-Officer of the Judiciary appears not ready to allow the prosecution of a gazrtted rank public servant. The impugned order is hereby quashed and the matter is remitted back to the court below for passing a fresh orders in the light of the observations made herein. The Court believes that the parties who appear belonging to intellectual stratum of the society could act pragmatically and make efforts to settle the matter forgetting the dispute. Kanth ( Dharnidhar Jha, J.)