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2007 DIGILAW 76 (PAT)

Nawal Kishore Singh v. State Of Bihar

2007-01-11

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the petitioner, the opposite party as well as the State. 2. This application has been filed by the petitioner for quashing the order taking cognizance dated 18.11.2005, passed by Divisional Judicial Magistrate, Begusarai in Complaint Case No. 510C of 2005 cognizance has been taken against the petitioner under Sec.380 of the Indian Penal Code. 3. Admitted facts of the case is that on 3.4.2005, petitioner was posted as the sub-divisional Electrical Officer i.e. Assistant Engineer, at Begusarai. He inspected the ice factory of Mahendra Poddar on 3.4.2005 along with Ram Charitar Paswan and others. This inspection was done on receiving the complaint that Mahendra Poddar took permission for running 8 horse power machine on temporary basis from the Electricity Department for running his ice factory. He continued to consume electric energy without extention of his temporary connection, without making payment of the energy charges. In course of inspection of the ice factory of Mahendra Poddar, H.P.motor, and the wires were seized. F.I.R. was registered vide Begusarai Town RS. Case No. 168 of 2005 against Mahendra Poddar, for commission of offence under Sections 39 and 44 of the Electricity Act. Subsequently Complaint Case No. 510C of 2005 was instituted by the son of accused Mahendra Poddar namely Chandan Kumar against petitioner alleging offence under Sections 320, 380, 384, 427, and 504 of the Indian Penal Code. It is alleged that the petitioner along with others came at the ice factory, they seized motor, compressor and other articles, took away the same as such committed offence. In this complaint case after enquiry under Sec.202 Cr.P.C. cognizance has been taken against the petitioner under Sec.380 I.PC. 4. The petitioner has come before this court for quashing the order taking cognizance on the ground that while taking cognizance the Magistrate has not applied its judicial mind. The statement of the complainant on oath as well as the evidence of witnesses examined under Sec.202 Cr.P.C. clearly indicated that alleged act done by the petitioner was part of his official discharge of duty. The articles were seized in connection with a police case instituted against Mahendra Poddar. Such seizure can not make out an offence under Sec.380 of the Indian Penal Code. Ignoring this cognizance has been taken. The articles were seized in connection with a police case instituted against Mahendra Poddar. Such seizure can not make out an offence under Sec.380 of the Indian Penal Code. Ignoring this cognizance has been taken. Other ground for assailing the order taking cognizance is that it has been passed in violation of madatory provision under Sec.197 Cr.P.C. cognizance has been taken without taking sanction for prosecution, even though admittedly act alleged is done in discharge of official duty of the petitioner. 5. Counsel for the petitioner has placed reliance on a decision in the case of Rakesh Kumar Mishra vs. State of Bihar and others [ 2006(1) S.C.C. 557 ]. In this case elaborate discussion has been made whether sanction as provided under Sec.197 Cr.P.C. is necessary for all acts of public servant or for offence alleged to have been committed by a public servant while acting or purporting to act in discharge of his official duty. 6. The Apex Court has recorded finding in following words:- "The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Session under Sec.193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or unless the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Sec.190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned, the cognizance of any offence, by any court, is barred by sec. 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression "no court shall take cognizance of such offence except with the previous sanction". Use of the words "no" and "shall" make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is, the complaint cannot be taken notice of According to Blacks Law Dictionary the word "cognizance" means "jurisdiction" or "the exercise of jurisdiction" or "power to try and determine causes". In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect a public servant who is accused of an offence alleged to have been committed during the discharge of his official duty. 7 In this decision it has clearly been indicated that now the court should act in a complaint case when the allegation has been made against a public servant and act which has been done in discharge of performance of his official duty. The court are precluded from exercising jurisdiction in respect of a public servant, who is accused of an offence alleged to have been committed during discharge of official duty, without observing mandatory provisions under Sec.197 Cr.P.C. 8. Counsel for the petitioner submits that complaint case relates to an act done in discharge of official duty of a public servant, the court was thus precluded from initiating a proceeding under Sec.202 Cr.P.C. unless sanction is accorded for the same, the entire proceeding of complaint case is bad including the order taking cognizance. 9. However, the counsel for the opposite party has stated that the cognizance has been taken under Sec.380 of the Indian Penal Code as theft has been alleged. Theft cannot be a part of discharge of official duty of a public servant and no sanction is needed for such act done by a public servant. During inspection the petitioner seized H.P. motor, wires compressor and other articles. Theft cannot be a part of discharge of official duty of a public servant and no sanction is needed for such act done by a public servant. During inspection the petitioner seized H.P. motor, wires compressor and other articles. This is admitted in F.I.R. but in seizure list those articles have not been shown in the list of seized articles. This is clear case of theft. 10. I find substance in the submission made by the counsel for the petitioner that the court .is precluded from proceeding with complaint case if there is allegation against a public servant and allegations relates to discharge of his official duty unless necessary sanction for same accorded by a competent authority is obtained. Any order of cognizance in violation of mandatory provision under Sec.197 Cr.P.C. is without jurisdiction and tit to be quashed. 11. Accordingly the order taking cognizance as well as the entire criminal proceeding of the complaint case is quashed as admittedly there is no sanction for prosecution of the petitioner. 12. The matter is remitted back to the concerned court for obtaining sanctions before entertaining the complaint petition only when the sanction is accorded the court will proceed with the enquiry under Sec.202 Cr.P.C. This application is allowed.