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2006 DIGILAW 1181 (PAT)

Rajesh Kumar Singh v. Bhola Kumar Yadav

2006-12-05

GHANSHYAM PRASAD

body2006
Judgment 1. Heard. 2. This application under Sec. 482 Cr.P.C. has been filed to quash the order of cognizance dated 24.11,2005 passed by Shri B.K. Srivastava, Judicial Magistrate 1st Class, Rosera thereby and thereunder cognizance under Sections 120B, 420, 468 and 471 I.P.C. has been taken against the petitioner and others. 3. It is submitted on behalf of the petitioner that taking cognizance against this petitioner is abuse of process of the court. In complaint petition, no ingredient of any criminal offence has been disclosed. All the allegations is against other accused who is said to have forged the documents. This petitioner is Galison Engineer in Air Force Department presently posted at Bagdogra, District Darjeeling. It is further submitted that on the date of the alleged occurrence this petitioner was not even posted at Bagdogra Airport from where the recommendation was made for payment of the family pension in favour of the accused, namely, Jamuna Devi. 4. The learned counsel for the petitioner also takes plea of Sec.197(2) Cr.P.C. The petitioner is in Central Government service posted in Arm Force but he has been prosecuted by the opposite party no. 1 without taking any prior sanction from the competent authority of the Central Government. 5. On perusal of the complaint petition as well as the provisions of Sec.197 Cr.P.C. it appears that the submission of the learned counsel for the petitioner has got merit. This petitioner was not even posted at the time of recommendation made for payment of the family pension in favour of the accused no. 1. Apart from it, no specific ingredient of any criminal offence has been stated in the complaint petition against this petitioner. There is also lack of sanction for prosecution as provided under Sec.197(2) Cr.P.C. It is well settled principle of the law that no Government servant shall be prosecuted without having prior sanction of the competent official of the concerned Government. Apparently, in the present case, no sanction has been obtained by the complainant. In view of that the prosecution of the petitioner is apparently incompetent and abuse of process of the court. 6. In the facts and circumstances of the case, this application is allowed and the impugned order is quashed but only in respect of this petitioner.