ORDER : 1. Heard Mr. Arvind Kumar Choudhary, learned counsel appearing for the petitioner, Mr. Amresh Kumar, learned A.P.P. for the State and Mr. Lalit Yadav, learned counsel appearing for the opposite party no. 2. 2. In this application, the petitioners have prayed for quashing of the entire criminal proceedings in connection with P.C.R. Case No. 211 of 2011 including the order dated 13.09.2012 passed by the learned Judicial Magistrate, Deoghar whereby and whereunder cognizance has been taken for the offences punishable under Sections 323 and 504 of the Indian Penal Code. 3. It has been submitted by the learned counsel for the petitioners that the petitioners who is a Police official had gone to apprehend Idrish Mian with respect to Sonaraithari P.S. Case No. 133 of 2010 and when they were returning back some of the persons have pelted stones upon them which led to institution of Sarawan (Sonaraithari) P.S. Case No. 156 of 2010 by the petitioner no. 2. 4. Learned counsel submits that as a retaliation to the institution of the case a complaint case was earlier instituted which however got dismissed and subsequently another complaint case was filed by the opposite party no. 2 being P.C.R. Case No. 211 of 2011 in which the learned court has been pleased to take cognizance on 13.09.2012 without considering the fact that no sanction has been obtained as the petitioners are the government servants. Learned counsel, therefore, submits that the entire allegation made in the complaint petition is a malicious prosecution against the petitioners which would be apparent from the surrounding circumstances. 5. Mr. Lalit Yadav, learned counsel appearing for the opposite party no. 2, has opposed the prayer made by the petitioners and has stated that at the time of conducting the enquiry under Section 202 of the Cr.P.C. witnesses have supported the occurrence which led the learned court below to have taken cognizance on 13.09.2012 for the offences punishable under Sections 323 and 504 of the Indian Penal Code. 6. It has been stated that earlier complaint which was preferred by the opposite party no. 2 was dismissed for non-prosecution as such a second complaint was permissible and on consideration of the averments made in the said complaint a prima facie case was made out against the petitioners. 6. It has been stated that earlier complaint which was preferred by the opposite party no. 2 was dismissed for non-prosecution as such a second complaint was permissible and on consideration of the averments made in the said complaint a prima facie case was made out against the petitioners. Learned counsel submits that it would be premature at this stage to consider as to whether it is a case of malicious prosecution or not as the petitioners by abusing of their official position had entered into the house in a civil dress which finds place in the complaint petition and such circumstance do not entitle the petitioners to be absolved from the criminal liability which they are facing. 7. It appears that on a complaint made by one Pandu Mian a case being Sonaraithari P.S. Case No. 133 of 2010 was registered against Amjad Mian and ten others under Sections 147, 148, 149, 323, 341, 324, 427, 448, 337, 379, 504 of the Indian Penal Code. It has been alleged that one Hadish Mian was arrested by the police and since some of the other accused persons were out of the village for their livelihood the informant and her family members were harassed by the Police and on the alleged date of occurrence the petitioners who were Officer In-charge of Sarwan (Sonaraithari) Police Station had come to the house of the complainant in a civil dress and had assaulted and abused her. 8. Consequent to the filing of the complaint petition which was registered as P.C. R. Case No. 211 of 2011 and upon conducting an enquiry under Section 202 of the Cr.P.C. cognizance was taken for the offence punishable under Sections 323 and 504 of the Indian Penal Code and the petitioners were summoned to face trial. 9. It appears that the petitioners were investigating Sonaraithari P.S. Case No. 133 of 2010 in which one Idrish Mian was apprehended and on such apprehension several persons who were made accused in Sarawan (Sonaraithari) P.S. Case no. 156 of 2010 had started abusing them and had also pelted stones upon them. Such act on the part of the accused persons led to the institution of Sarawan (Sonaraithari) P. S. Case no. 156 of 2010 had started abusing them and had also pelted stones upon them. Such act on the part of the accused persons led to the institution of Sarawan (Sonaraithari) P. S. Case no. 156 of 2010 on 18.11.2010 under Sections 147, 148, 149, 323, 341, 324, 427, 448, 337, 379, 504 of the Indian Penal Code against several persons including the husband of the complainant. 10. After Sarawan (Sonaraithari) P.S. Case no. 156 of 2010 was instituted, a complaint was preferred by the opposite party no. 2 which was registered as P.C. R. Case No. 817 of 2010 which, however, was dismissed for non-prosecution on 23.03.2011. Subsequent to the dismissal of the complaint case for non-prosecution a fresh complaint case was instituted by the opposite party no. 2 being P.C.R. Case No. 211 of 2011 which relates to the same incident for which Sarawan (Sonaraithari) P. S. Case no. 156 of 2010 was instituted. The initiation of the complaint case is a vexatious litigation as against the petitioners as the petitioners were discharging their official duty and were investigating into Sonaraithari P.S. Case no. 133 of 2010 and 134 of 2010 and they were prevented by the accused persons of Sarawan (Sonaraithari) P.S. Case no. 156 of 2010 from doing their official duty for which they were abused and were also pelted stones. The subsequent act on the part of the opposite party no. 2 in filing the complaint petition does indicate that as a retaliatory measure to the First Information Report instituted against the husband of the complainant as well as the other accused persons such complaint has been lodged. 11. Moreover, no sanction was obtained under Section 197 of the Cr.P.C. prior to taking of cognizance as the act on the part of the petitioners who were the Officer In-charge of two Police Stations could not by any stretch of imagination said to be not in discharge of their official duties. 12. In the case of D.T. Virupakshappa vs. C. Subash reported in (2015) 12 SCC 231 while considering the requirements of sanction under Section 197 of the Cr.P.C. with respect to the Police excess during investigation it was held therein:- “9. In our view, the above guidelines squarely apply in the case of the appellant herein. 12. In the case of D.T. Virupakshappa vs. C. Subash reported in (2015) 12 SCC 231 while considering the requirements of sanction under Section 197 of the Cr.P.C. with respect to the Police excess during investigation it was held therein:- “9. In our view, the above guidelines squarely apply in the case of the appellant herein. Going by the factual matrix, it is evident that the whole allegation is on police excess in connection with the investigation of a criminal case. The said offensive conduct is reasonably connected with the performance of the official duty of the appellant. Therefore, the learned Magistrate could not have taken cognizance of the case without the previous sanction of the State Government. The High Court missed this crucial point in the impugned order.” 13. The entire scenario, which has been depicted above, would thus go to show that the learned Magistrate had committed an error of law in straightaway taking cognizance without there being any sanction granted for prosecution against the petitioners. The said fact coupled with the apparent nature of allegations is a malicious prosecution against the petitioners which does entitle the petitioners to be protected from being criminally prosecuted. 14. Accordingly, in view of what has been stated above, this application is allowed and the entire criminal proceedings in connection with P.C. R. No. 211 of 2011 including the order dated 13.09.2012 passed by the learned Judicial Magistrate, Deoghar by which cognizance has been taken for the offence punishable under Sections 323 and 504 of the Indian Penal Code is, hereby, quashed.