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2005 DIGILAW 1078 (PAT)

Md. Samim Ahmad @ Samim v. State Of Bihar

2005-12-20

NAVIN SINHA

body2005
Judgment 1. Heard learned counsel for the petitioner and the State. None is present on behalf of opposite party No. 2 when the matter is called out despite having entered appearance. 2. The petitioner seeks quashing of the order dated 13.8.2002 in Complaint Case No. C-437 of 2002 by which cognizance would have taken against him under Sections 427, 380 and 504 of the Penal Code as also the proceeding of the entire complaint case. 3. Learned counsel for the petitioner submits that the petitioner would be an Assistant Sub-Inspector of Police posted at the relevant time at Belaganj Police Station in the District of Gaya. The allegation would be that the petitioner with the aid of ladder entered into the house of the complainant on 7.5.2002 and forcibly took away the brother of the complainant namely, Saba Ahamd. The petitioner is alleged to have used foul language and is stated to have taken away the Name-Plate of the complainant and certain other items as blankets, bed-sheets, table cloth, wall clock and framed scenery photographs. 4. Alleging abuse of the process of law and that present complaint had been filed mala fide, learned counsel submits that said Saba Ahmad, the brother of the complainant, would be an accused in a case under Section 396 of the Penal Code registered as Belaganj P.S. Case No. 57 of 1986 (Session Trial No. 127 of 1999) pending before the 7th Additional Sessions Judge, Gaya who would have, on 30.6.2001, directed the Superintendent of Police, Gaya to arrest the absconding accused including the said Sabha Ahmad. In pursuance of the warrant of arrest issued on 30.6.2001 in Sessions Trial No. 127 of 1999 (arising out of Belaganj P.S. Case No. 57 of 1986) the petitioner would have entered the premises, in question, and arrested the said Saba Ahmad, as is apparent from the seizure-list at Annexure-5, on 7.5.2002 when the said Saba Ahmad would have been forwarded to custody on 8.5.2002. Learned counsel submits that the petitioner was acting purely in discharge of his official duty and there would be nothing amiss in the police officer entering into the house of the complainant, if necessary, with the aid of the ladder if the door be not opened to arrest the accused. Learned counsel submits that the petitioner was acting purely in discharge of his official duty and there would be nothing amiss in the police officer entering into the house of the complainant, if necessary, with the aid of the ladder if the door be not opened to arrest the accused. Learned counsel for the petitioner lastly submitted that triviality of the nature of the allegation is apparent from the materials alleged to have been taken away by the petitioner as alleged. 5. In the facts and circumstances of the case, the nature of the allegation made and the materials placed by the petitioner before this Court would lead to the irresistible conclusion that the present complaint would be an act of vengeance out of spite for reason of the fact that the petitioner in discharge of official duty would have entered the house of the complainant accompanied by an arrest warrant to apprehend an absconding accused. This Court is satisfied that the present order of cognizance is not sustainable in absence of necessary sanction against the petitioner under Section 197 of the Code of Criminal Procedure. For the said reason this application has to be allowed. The order of cognizance dated 13.8.2002 and the entire proceedings in Complaint Case No. C-437 of 2002 against the present petitioner are accordingly quashed for the reasons as aforesaid.