IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47145 of 2006 NIGAM KUMAR VERMA Versus STATE OF BIHAR & ANR ----------- 10 23.7.2008 Heard Mr. Salauddin Khan, Sr. Advocate, learned counsel for the petitioner and Mr. Jharkhandi Upadhaya, learned A.P.P. for the State. Although the complainant has appeared by filing vakalatnama yet at the time of hearing neither he nor his accredited counsel is present. Through this application the petitioner, Officer Incharge of G.R.P. Buxar Railway Station, has prayed for quashing of order dated 26.5.2006 passed by the learned Chief Judicial Magistrate, Buxar, in Complaint Case No. 756(C) of 2005, whereby he has taken cognizance of offences under section 323, 379, 504, 221 I.P.C. against the petitioner and has issued processes. Complainant, Sanjay Kumar Singh, impleaded as O.P. No. 2, filed a complaint before the learned Chief Judicial Magistrate, Buxar, inter alia alleging that on 18.2.2005 at around 5.30 A.M. as he got down at Buxar railway station from Sharamjivi Express while coming from Lucknow, a pick pocket picked his pocket and removed Rs. 5000/- but he was caught red handed and handed over to Officer Incharge, Buxar Rail Police, the petitioner, in presence of a large number of witnesses. It is alleged that the Officer Incharge released the apprehended pick pocket and threatened that the complainant would be sent to jail and also assaulted him with slaps and fists, and thereafter opening the handbag of the complainant took out Rs. - 2 - 20,000/- and pushed him out of the police station with a warning. It appears that the learned Chief Judicial Magistrate held an inquiry under section 202 Cr.P.C. where apart from recording the statement of the complainant on S.A. he also examined three witnesses produced on his behalf and took cognizance as stated above. It has been submitted on behalf of the petitioner that the complainant had also filed a complaint along with S.A. before the higher police officials of the State Government in respect of the occurrence and on receipt of the same the petitioner was placed under suspension and a departmental proceeding has been initiated and having considered the matter adduced at the departmental inquiry including the allegations and evidence of witnesses the petitioner was exonerated of the charges and order of suspension was revoked. On this premise it was sought to be submitted that the same petitioner cannot be put in peril twice for the same offence and as such the order of cognizance is bad in law. It was also submitted that since the entire occurrence took place in discharge of the official duty of the petitioner sanction for his prosecution under section 197 Cr.P.C. was a pre-requisite. Whether the action taken by the petitioner was in discharge of his official duty or not, is a question of fact which can only be gathered by leading evidence in the trial by both parties on this aspect. However, the other point raised by the learned counsel for the petitioner appears to have some substance. - 3 - It appears from perusal of the award of the disciplinary authority that the complainant had not appeared before him to establish the recital in the compliant. Similar is the situation here. Admittedly both the departmental proceeding and the criminal case have been lodged on a set of facts which are common in substance. Evidence was led at the departmental inquiry and having considered all materials available the petitioner was exonerated. To prosecute him thereafter on the same set of facts and evidence in a criminal case would amount to a peril so far as the petitioner is concerned. Due regard being had to the facts and circumstances of the case the impugned order taking cognizance is hereby quashed and the application is allowed. Spd/- (Abhijit Sinha, J.)