IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.20025 of 1998 PASHUPATI SINGH S/O SRI RAMJI SINGH, R/O VILLAGE-SHIVNAR, P.S. MOKAMA, IN THE DISTRICT OF PATNA, AT PRESENT POSTED AS OFFICER IN CHARGE (S.I), GOVT.RAIL POLICE STATION, SONEPUR UNDER RAIL DISTRICT-MUZAFFARUPUR………PETITIONER. Versus 1. STATE OF BIHAR 2. MD. SHAHABUDDIN (MEMBER OF PARLIAMENT, SIWAN) S/O S.M. HASIBULA R/O VILLAGE- PRATAPUR, P.S.HUSAINGANJ, DISTT- SIWAN………OPPSITE PARTIES. ----------- For petitioner: Mr. Akhileshwar Pd. Singh, Advocate Mr. Sunil Kr. Singh, Adv. For State: Mr. Lala Kailash Bihari Pd. APP. --------- 3. 16-Apr-2010 Heard learned counsel for the petitioner and learned counsel for the State. 2. In spite of notice, nobody has appeared on behalf of O.P. No.2, the complainant to oppose this quashing application filed by the petitioner who at the relevant time was posted as Officer Incharge of G.R. Police Station, Siwan. 3. The prayer is to quash the entire criminal proceeding against the petitioner pending in the court of Judicial Magistrate, 1st Class, Siwan vide Complaint Case No. 1005 of 1997, including order of cognizance dated 6.1.1998 leading to Trial No. 947 of 1998 for offence under 2 Sections 147/148/323/341/379/500/504 and 427 of the Indian Penal Code. 4. On behalf of the petitioner reliance has been placed upon Anneuxre-2 which is FIR of GRPS Siwan Case No. 0032 of 1997 dated 2.9.1997 under Sections 448/341/323/504 of the IPC which has been lodged by one Jagmohan Kumar Pandey, a ticket collector posted at Siwan alleging that on 2.9.1997 which is also the alleged date of occurrence of the present case, he was working at the Enquiry counter at Siwan Railway Station. Aggrieved by his replies some young persons who claimed to be the men of the complainant who is a Member of Parliament, began to assault him and he anyhow escaped and was protected by the official of General Rail Police Station, Siwan where he took shelter. As per that FIR the assailants chased him and came to the Police Station and were bent upon to assault him even at the Police Station. That case was recorded by the petitioner as Incharge of the Rail Police Station at Siwan. Petitioner has also placed reliance upon FIR of Rail Police Station case No. 0033 of 1997 dated 2.9.1997 under Sections 147/148/149/341/323/353 and 504 of the IPC and Section 27 3 of the Arms Act lodged by the petitioner in his official capacity as Officer Incharge of Rail Police Station, Siwan against the complainant and 40/50 unknown persons alleged to be supporters of the complainant. According to that FIR when the ticker collector, Jagmohan Kumar Pandey took shelter in the Rail Police Station, Siwan after he was assaulted by men of the complainant, the complainant himself came to the police station and after showing fire arms he demanded that the ticket collector be handed over to him so that he may prescribe adequate punishment. In course of such demand allegedly supporters of the complainant assaulted the Officer Incharge (petitioner) and several other officials and constables who came to the Police Station in course of the occurrence. 5. On behalf of the petitioner it has been further submitted that in the petition of complaint the complainant has explained the delay of about two months in lodging the complaint petition by alleging that he had handed over a copy of his complaint to Dy. Superintendent of Police, Railways who was present at the time of occurrence. A copy of that complaint has been annexed as 4 Annexure-5 to show that on 2.9.1997, the complainant made a very superfluous and simple allegation that he went to Police Station to enquire about some occurrence and at the G.R. Police Station, Siwan, one person wearing a safari suit entered into the arguments and had some scuffle with him and subsequently the complainant learnt that the said person was Officer Incharge. It was highlighted that many further allegations such as stealing away valuables from luggage and surrounding the complainant’s vehicle with fire arms have been subsequently added in the complaint petition by way of clear false exaggeration and a comparison of the allegations in the complaint petition and in the Annexure-5 would show that almost all the allegations in the petition of complaint are exaggerations and after thought only to counter the police case lodged on 2.9.1997. The complaint case appears to have been registered on 1.11.1997. 6. On behalf of petitioner it has been submitted that from the materials, particularly the FIR of two cases lodged on 2.9.1997 as well as from Annexure-5 it would be manifest that petitioner was acting in official capacity on 2.9.1997 and had registered two police cases against the 5 complainant and his men and it is admitted in annexure-3 that petitioner had to take up cudgels against the complainant in order to save the ticket collector from being assaulted. On these facts, it has been submitted that petitioner as a Sub Inspector of Police and Officer Incharge of GRPS, Siwan was entitled to protection of Section 197 of the Code of Criminal Procedure and no cognizance should have been taken by the learned Magistrate in absence of valid sanction by the State Government. 7. Learned counsel for the State, Lala Kailash Bihari Prasad submitted that at the present stage it would not be proper to disbelieve the allegations made in the petition of complaint and the requirement of sanction for prosecution under Section 197 of the Cr.P.C can be raised even subsequently at the stage of framing of charge and prayer can be made for discharge if the plea is found to be acceptable. Learned counsel refers to a recent judgment of the Apex court in the case of State of Orrissa vs. Ganesh Chandra Jew, AIR 2004 SC 2179 to highlight various issues as settled by the Apex Court in relation to Section 197 of the Cr.P.C. A perusal of that judgment shows that 6 requirement of Section 197 Cr.P.C. has been held to be mandatory and applicable at the stage of cognizance itself. 8. It goes without saying that at that stage a court taking cognizance can keep Section 197 in mind and apply the same only if facts available on records of the case warrant such an action. 9. In the present case, it is found that the official status of the petitioner stands admitted in the petition of complaint and so far this Court is concerned, there can be no escape from the conclusion on the basis of Annexures-1,2 and 5 that the allegations relate to an occurrence in which the petitioner was acting in his official capacity and was entitled to protection under Section 197 of the Code of Criminal Procedure. It is further found on a perusal and comparison of the petition of complaint and Annexure-5 that most of the allegations in the petition of complaint are exaggerations and after thought. 10. In the facts of the case, this Court has no hesitation in holding that the prosecution of the petitioner in the present case will be an abuse of the process of court and interest of justice also warrants that the order of cognizance 7 be quashed. 11. Accordingly, this application is allowed and the entire prosecution in so far as it relates to the petitioner is quashed. perwez (Shiva Kirti Singh, J.)