IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.463 of 2005 MD. IQBAL Versus STATE OF BIHAR & ANR ----------- 10/ 09-07-2008 Heard learned counsel for the petitioner and learned counsel for the State. None appears on behalf of Opposite Party No. 2. This application has been filed for quashing the order dated 24.4.2002 passed by Sri S.K. Agnihotri, Judicial Magistrate, Ist Class, Patna in Complaint Case No. 2152 ( C )/2001 whereby and whereunder he has taken cognizance under Section 323 of the Indian Penal Code against the petitioner. Shortly stated the case of the Complainant/ Opposite Party No. 2 as put in the petition of the complaint filed on 24.11.2001 before the Chief Judicial Magistrate, Patna is that on 6.10.2001 he had come to Patna to purchase computer parts for repairing disordered computers of his training centre, namely, “Suchana Yewam Pradhyogiki Kendra”, Chandani Chowk, Sheikhpura where he used to provide computer education to the trainees. While the Complainant/Opposite Party No. 2 was travelling from Patna to Bihar Sharif on a private bus the petitioner-accused along with others followed him by a jeep and intercepted the bus. The complainant was forcibly brought down from the bus and boarded on the jeep along with the computer parts said to have been purchased by him with cash memo. It is alleged that petitioner-accused brought the complainant to Patna in the said jeep and by putting the complainant in fear 2 extorted the belongings and all the purchased computer parts after beating him with fists and slaps and misbehaved with the complainant. It is said that a seizure list was prepared but a copy of the same was not given to the complainant. The complainant on 8.10.2001 saw the petitioner-accused in the office of Custom and Central Excise, Bailey Road, Patna and then he came to know that the petitioner is the Superintendent, Custom and Central Excise, posted in Patna. Thereafter the complainant tried to get back all his belongings and sent two notices through lawyer dated 19.10.2001 and 20.11.2001 but no reply was given by the petitioner-accused. Thereafter the complainant filed Complaint Case No. 2152 (C)/2001 before the Chief Judicial Magistrate, Patna. It appears that the complainant was examined on solemn affirmation and during enquiry under Section 202 Cr.P.C. three witnesses were examined and learned Magistrate after being satisfied that there was material to proceed further against the petitioner under Section 323 of the Indian Penal Code issued summons against him. Against the said order the petitioner-accused has preferred the present application before this Court. Learned counsel submitted that though the alleged occurrence took place on 6.10.2001 but the Complaint was filed in the Court of C.J.M. on 24.11.2001. He submitted that the petitioner is the Superintendent of Custom and Central Excise. He is a government servant and, therefore, he can not be prosecuted in absence of the required sanction under Section 197 Cr.P.C. He further submitted that it is admitted position that on 6.10.2001 at 9.45 p.m. the seizure list 3 was made from the possession of the complainant. In this connection he referred to the seizure list Annexure-2 and the statement of the complainant Annexure-2/1 to the application. He further submitted that the Deputy Commissioner, Customs (P) Division, Patna through order dated 15.7.2002 confiscated the foreign origin miscellaneous computer parts worth Rs. 42,650/- seized from the complainant in the custom case. Learned counsel then submitted that the petitioner did not assault the complainant and even if the petitioner did something more in excess of the requirements of the situation even then the same is protected under Section 197 Cr.P.C. In support of his contention reliance has been placed on a decision given in the case of Shri Pancham Lal Versus Shri Dadan Singh reported in 1978 PLJR 480. Learned State counsel submitted that the question of sanction can be considered at subsequent stage also. It is now admitted position that on 6.10.2001 at 9.45 p.m. the complainant was apprehended with foreign origin miscellaneous computer parts. The computer parts were seized and a seizure list was prepared and a copy of the same was given to the complainant. Annexure-2/1 to the application indicates that he admitted the seizure list before the Custom officials. It is also admitted that the petitioner is a Central Government servant. The act was performed by the petitioner in discharge of his official duty. Admittedly no sanction was obtained in this case for the prosecution 4 of the petitioner. The decision relied upon by the petitioner’s counsel supports his argument. In absence of sanction the order of cognizance is bad in law. In the facts and circumstances of the case, this application is allowed and the order of cognizance dated 24.04.2002 against the petitioner is hereby quashed. S.Sb/- (Madhavendra Saran, J.)