IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3476 of 2008 SUDERSHAN PASWAN & ORS Versus THE SATE OF BIHAR ----------- 3. 23.4.2010 Heard Shri Ashwini Kumar Singh, learned Senior Counsel for the petitioners who has raised two issues before the Court- the first is in respect of constituting of an offence under Section 386 of the Penal Code and the other is in respect of sanction of prosecution of petitioner No.1 Sudershan Paswan as per the provision of Section 197 of the Cr. P.C. as it was admitted from the facts of the case that petitioner no.1 was discharging his official duties. This may be pointed out that the order of summoning is based only on the principle of law that any offence appears constituted on facts or committed by an accused, he has to be summoned for facing the trial. What offence is made out or for what offence the accused was required to be tried could be questions which could be decided by holding the trial. It may be true that an offence under Section 386 of the Penal Code, strictu sensu, may not be made out but there are facts connected with the definition of the term “extortion” which defines the offence and prescribes punishment and those could be looked into only when the court has either applied its mind to the facts of the case or had formed a concrete opinion about the constitution of an appropriate offence. So far the issue of requirement of sanction to 2 prosecute petitioner Sudershan Paswan is concerned, firstly he was not removable by the State Government, he could be removed by an Officer of the Sate. Secondly, it is too well known to be stated that question of sanction could be considered from state to stage of any trial. I leave it to the discretion of the court below and to the rights of petitioner Sudershan Paswan to adjudicate upon the issue as and when the same is agitated before the court below during the course of the trial. In my considered view, the facts are required to be put to trial and, as such, the petition is dismissed with the above observation. Kanth ( Dharnidhar Jha, J.)