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2003 DIGILAW 778 (PAT)

Kant Singh v. State Of Bihar

2003-07-29

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kumar Prasad, J. 1. This application has been filed for quashing the entire prosecution as also the order dated 12-6-2000, passed by the Sub-Judicial Magistrate, Samastipur in Complaint Case No. 1103 of 1999, whereby the learned Magistrate has taken cognizance of the offence under Secs. 447 and 504 of the Indian Penal Code, 1860. 2. Although the aforesaid prayer has been made in an application filed under Sec. 226 of the Constitution of India but when the matter is taken up, Mr. Singh appearing on behalf of the petitioner prays to convert this application into an application u/s. 482 of the Code of Criminal Procedure. I am proceeding to consider this application as an application u/s. 482 of the Code of Criminal Procedure. 3. Opposite party No. 4, who happens to be a constable in the Railway Protection Force lodged a petition of complaint in the Court of Chief Judicial Magistrate, Samastipur, inter alia, alleging that although he was transferred from Samastipur to Sonepur but on account of sickness he was living in the house at Samastipur. 4. It has been alleged in the petition of complaintthat on 26-10-1999, the petitioner, who happens to be an Assistant Sub-Inspector posted at the Railway Protection Force posted at Samastipur came to his house and called him and when he was a bit late on account of illness, the petitioner abused him and asked him to come out immediately to take the notice. According to the petition of complaint, the petitioner is alleged to have stated that in case he does not receive the notice, his family members shall be thrown out from the house in his occupation, The complainant has further alleged that when he came out and protested to the abuse hurled by him, petitioner became angry and he was served with a notice for vacation of the house and the same contains the forged signature of the petitioner. Learned Magistrate on consideration of allegation made in the petition of complaint, statement of the complainant of solemn affirmation and the witnesses examined during the course of enquiry, prima facie found that an offence under Sec. 447 and 504 of the Indian Penal Code has been made out and accordingly directed for issuance of summons. Mr. Subash Prasad Singh, appearing on behalf of the petitioner submits prosecution of the petitioner is absolutely malacious. Mr. Subash Prasad Singh, appearing on behalf of the petitioner submits prosecution of the petitioner is absolutely malacious. He points out that the petitioner had gone to serve the notice to the complainant for eviction from the house which he was occupying unauthorisedly. In any view of the matter, Mr. Singh points out that according to the allegation made in the petition of complaint itself the alleged act of the petitioner is in discharge of official duty and as such his prosecution without sanction of the competent authority is illegal in the eye of law. Mr. Satish Kumar appearing on behalf of opposite party No. 4, however, submits that the act of the petitioner cannot be said to be in discharge of official duty and as such the learned Magistrate did not err in taking cognizance of the offence without sanction of the competent authority. 5 The petitioner is Assistant Sub-Inspector of the Railway Protection Force, which is an Armed Force of the Union. According to the complainant himself, the petitioner had gone to serve the notice for his eviction from the house which he was occupying unauthorisedly and in the process alleged to have used strong language, 6. This, in my opinion, is an act in the purported discharge of the official duty. Undisputedly, the learned Magistrate had taken cognizance of the offence without sanction of the Central Government. sec. 197(2) of the Code of Criminal Procedure, inter alia, provides that no Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Force while acting or purporting to act in discharge of official duty except with the previous sanction of the Central Government Thus the order taking cognizance suffers from apparent error. 7. In the result, the application is allowed and the impugned order dated 12-6-2000 is quashed.