IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28236 of 2007 PRAYAG SINGH Versus STATE OF BIHAR & ANR ----------- For the Petitioner : M/s. Mahesh Narayan Parbat and Ved Prakash Shrivastava, Advocates. For the State : Mr. Jharkhandi Upadhayay, A.P.P. For O.P. No.2 : M/s. Sitaram Singh and Nawal Kishore Singh, Advocates. -------------- O R D E R The petitioner who is one of the named accused of Complaint Case No.C 847 of 2007(U.T. No.739 of 2007) has prayed for the quashing of the entire criminal proceedings arising therefrom, so far as the petitioner is concerned, including the order dated 3.4.2007 passed therein by the learned Chief Judicial Magistrate, Saran at Chapra whereby and whereunder he has taken cognizance of offences under Sections 147/148/323/420/427/436 I.P.C. against the present petitioner and the other co-accused persons. The complainant, one Bachha Singh, impleaded herein as O.P. No.2, filed the aforesaid complaint on 2.4.2007 against the persons named therein inter alia stating that the land in dispute was purchased in the names of his family members as described in the complaint petition through two registered sale deeds dated 31.8.1999 executed by its recorded owners, Jyoti Swaroop Sinha, Shyama Sharan Sinha and Siyabaran Sinha and on the basis of the said purchase the names of the vendees were mutated in the Government Register and they also paid rent till 2002. It is alleged that at about 7.30 A.M. on 14.8.2005 accused Tuntun Singh along with A.S.I. Ram - 2 - Sagar Singh and 5-7 unknown persons had come to the Baithaka of the complainant and had threatened him to leave 3 kathas out of the 17 kathas lands purchased by them in the year 1997. In this connection, Tuntun Singh, had produced a forged and fabricated deed of the year 1997 said to have been executed by one Ashok Kumar Singh and on the basis thereof the said Tuntun Singh in collusion with the police had tried to take possession of the land on 14.8.2005 and thereafter on the basis of the said forgery and in collusion with the police the family members of Tuntun Singh made attempts to take possession of the said lands for which Complaint Case No.C 2128 of 2005 had been filed and is pending. The further case of the prosecution is that after filing of the said case peace had been restored but in the mean time the wife of accused Ram Bahadur was elected as Mukhiya of the Gram Panchayat whereafter the accused persons in collusion with the police and the officials of the Circle Office made a plan to take possession of the said lands and got a proceeding under Section 144 Cr.P.C. initiated in which Tuntun Singh allegedly received notice meant for the complainant on 28.1.2006 by forging his signature and thus in his absence the proceeding under Section 144 Cr.P.C. was decided ex- parte against him and possession of Tuntun Singh was declared on the said land on 28.2.2006. It is further alleged that on 23.3.2007 the accused Officer Incharge of Police Station along with the members of SAP came to the Baithka of the complainant situated upon the disputed land and asked him to vacate three kathas of land on the ground that possession of family members of Mukhiya was declared - 3 - on the said land by the Sub Divisional Officer much before. It is said that the complainant approached the authorities mentioned in the complaint petition and filed written application before them annexing therewith copies of documents and requesting for protection. A copy of the said application was said to have been given to the Officer Incharge also. However, notwithstanding the same at about 11 A.M. on 30.3.2007 all the accused persons came at the Baithka of the complainant where the Officer Incharge abused him and stated that in spite of earlier notice the complainant had not vacated the land and accused Prayag Singh, the petitioner herein, stated that he had been deputed by the Circle Officer as Magistrate to get the lands vacated and all the accused persons started throwing the articles kept in the Baithka outside. It is further alleged that on remonstration accused Tuntun Singh , Ram Bahadur Singh and Officer Incharge, Binod Paswan, assaulted him with fists and slaps and on the orders of the Mukhiya, Bari Devi, accused Tuntun Singh set fire to the Baithka of the complainant as a result whereof articles mentioned in the complaint petition were burnt causing loss of Rs.5000/-. It is also alleged that the accused persons brought brick on a tractor and stated that they would start construction work on the land. The complainant approached the authority in this regard but without any success. It has been submitted on behalf of the petitioners that the alleged place of occurrence is part of Plot No.1732 of Khata No.193 having a total area of 2 Bighas 10 Kathas 11 Dhurs out of which the complainant had purchased 17 Kathas in the names of his family - 4 - members and accused Tuntun Singh had purchased two Kathas of land in the name of his father Sudarshan Singh. A photo copy of the records of right has been annexed as Annexure-2 in support of the submissions. It has further been submitted that subsequently some dispute regarding the said three Kathas land arose in between the complainant and Tuntun Singh for which, on the basis of the reports submitted by the police, a proceeding under Section 144 Cr.P.C. was started between them and the same was decided ex-parte in favour of Tuntun Singh. It was further stated that after passing of the order an application was filed by Tuntun Singh on 1.3.2007 before the Sub Divisional Officer, Chapra to the effect that in spite of order dated 28.2.2006 the complainant was bent upon to disturb the peace of the disputed land and on the basis of the said application a direction was issued by the Sub Divisional Officer, Chapra to the Officer Incharge , Daudpur P.S. to maintain peace and also to the Circle officer, Manjhi to take necessary action in this regard. The said order was communicated to the Circle Officer, Manjhi, vide Memo dated 28.3.2007. The further submission advanced on behalf of the petitioner is that the Circle Officer, Manjhi vide Memo dated 29.3.2007 directed the Officer Incharge, Daudpur P.S. to maintain peace in the light of the direction of the Sub Divisional Officer, Chapra, and on the same day deputed the petitioner vide his letter no.342 dated 29.3.2007 in his capacity of Revenue Karamchari to get the disputed land identified to the Officer Incharge, Daudpur P.S.. It was on the basis of the said - 5 - deputation and the directions of the competent authorities that the petitioner had gone in his official capacity to the disputed land to get it identified to the Officer Incharge, Daudpur P.S... It is submitted that during his presence at the spot no occurrence of any type had taken place. It has further been submitted that it would be apparent from the contents of the complaint petition that there is no specific allegation of any kind against the present petitioner and even if the allegation against him as alleged by the prosecution is accepted to be true even then at best the only allegation against him would be that he had stated that he was deputed by the Circle Officer as Magistrate to get the land vacated which in no circumstances could be viewed as an offence in the eye of law. It was further submitted that since the petitioner had gone upon the lands in question in his official capacity and performed, in pursuance of the official duty as per direction of higher authorities, sanction from the competent authority for such prosecution was necessary in view of the provisions of Section 197 Cr.P.C. In support of his submission reliance was sought to be placed on the case of Parkash Singh Badal Vs. State of Punjab reported in 2007(1) PLJR 291(SC) and AIR 2000 SC 3517. The submissions advanced by the learned counsel for the petitioner is sought to be assailed by the learned counsel for O.P. No.2 who has submitted that the learned Magistrate after consideration of the materials available on the record as derived from the inquiry under Section 202 Cr.P.C. had rightly taken cognizance of the offences and the same could not be questioned. It was also submitted that the plea - 6 - of the petitioner of his going upon the lands in pursuance of the orders of his higher authorities and in discharge of his official duties was a plea of his defence and the documents submitted by him in support of his case could not be looked into by this Court in a proceeding under Section 482 Cr.P.C. No hard and fast rule of universal application can be laid as regards the stage at which the question of sanction can be allowed to be raised since it depends upon the facts and circumstances of each case. It is true that a public servant having committed an offence has to be prosecuted but if act complained of is done by him in course of discharging his official duties, then prosecution can take place only after sanction has been obtained from the appropriate Government even if it is shown that while discharging his official duties he had exceeded his lawful authority and had committed an offence. In cases of doubt, the same cannot be decided in a summary fashion and the prosecution must be given opportunity to establish its case by evidence and an opportunity given to the defence to establish that he had been acting in discharge of his official duty. See Raj Kishor Roy Vs. Kamleshwar Pandey reported in 2002(4) PLJR 74(SC) Merely raising a claim, as in the instant case, that the petitioner had acted in discharge of his official duty and in pursuance of the orders /directions of his superior authorities is a question of fact even though documents in support of such plea may be furnished. Merely because the accused is a Government Servant and is clothed with duties to enforce law and order he cannot claim sanction under - 7 - Section 197 Cr.P.C. as a matter of course. The test to be applied to attract the applicability of Section 197 Cr.P.C. is that if the act complained of is done while acting as a Public Officer and in course of the same transaction in which the official duty was performed or purports to be performed, the Public Officer would be protected. It goes without saying that the plea raised by the petitioner and the documents adduced in support thereof is his defence which cannot be looked into at this stage in a proceeding under Section 482 Cr.P.C. Such plea ought to be raised before the trial court or at the time of framing of charge and when such plea is raised at the aforesaid stages it is incumbent upon the trial court to deal with the plea raised and decide the same in accordance with law. In view of the discussions made above, I do not find any merit in this application which is dismissed. However, the petitioner shall be at liberty to raise these issues before the trial court or at the time of framing of charge and in that event the court after consideration of plea of sanction will decide in accordance with law. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 6th of August, 2008. Pradeep Srivastava/A.F.R.