JUDGMENT : 1. Heard Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner, Mr. Abhay Kumar Mishra, the learned counsel appearing on behalf of the O.P.No.2 and Mr. Hatim, the learned counsel appearing on behalf of the respondent State. 2. This petition has been filed for quashing the entire criminal proceeding including the order dated 02.12.2019 in connection with Complaint Case No.836 of 2018, pending in the court of learned Chief Judicial Magistrate, Garhwa. 3. The complaint case has been filed alleging therein that the complainant is a practicing Advocate. On the date of alleged occurrence i.e. on 30.04.2018 at about 08.30 P.M., the complainant while returning home in his motorcycle from the market, got stuck in a traffic jam and all of sudden, the vehicle of Superintendent of Police, Garhwa’s car approached from behind and 5-6 body came out of the car and looted the complainant’s mobile and asked if he was Advocate Ashish Dubey and when he confirmed about such identity, upon the instructions of this petitioner the bodyguards started abusing and assaulting the complainant in front of everybody because of which the complainant sustained injuries. After such assault, the complainant was taken to the police station by the petitioner and his bodyguards and thereafter again abused and assaulted the complainant in the police station. One Gorelal Kunwar looted the mobile phone of the complainant and kept him in police custody the entire night without any food. On 01.05.2018 the complainant was released on personal bond. The complainant has also alleged that before putting his signature on the personal bond, he had been insisted to sign another personal bond which mentioned that the complainant had tried to disturb the peace by making comments on religion which will disturb the peace of the society but the complainant had refused to sign such personal bond. 4. The complainant has further stated that after he was released from custody of the police, he went to the office of the District Bar Association, Garhwa, and showed the injuries sustained by him. The complainant also gave a written complaint to the District Judge, Garhwa, who in turn informed the Deputy Superintendent of Police after which the complaint underwent medical treatment under the supervision of a Magistrate duly appointed by the Sub-Divisional Magistrate, Garhwa, from where the complainant was further referred to RIMS, Ranchi. The complainant also gave a written complaint to the District Judge, Garhwa, who in turn informed the Deputy Superintendent of Police after which the complaint underwent medical treatment under the supervision of a Magistrate duly appointed by the Sub-Divisional Magistrate, Garhwa, from where the complainant was further referred to RIMS, Ranchi. On 01.05.2018, the complainant had given his Fardbayan but no FIR was registered and on the contrary a false FIR being Garhwa P.S.Case No.164 of 2018 was registered against the complainant. The reason for targeting the complaint was that the complainant was conducting a case being Complaint Case No.3338 of 2017 at Garhwa which was filed against the Chief Minister. A writ petition being W.P.(PIL) No.2255 of 2018 was also filed on behalf of the complainant. On the basis of the aforesaid allegations, the above noted complaint case was instituted against the petitioner and other co-accused persons. 5. Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner submits that the petitioner was posted as S.P., Garhwa and he was subsequently transferred from the said post and presently he has been entrusted with several charges. He submits that what has occurred that was in discharge of the official duty. He submits that the learned court has taken cognizance by order dated 02.12.2019 without considering section 197 Cr.P.C as he was discharging the official duty and without sanction the cognizance order is bad in law. He submits that on 30.04.2018 there was a traffic jam at Ranka More and upon such information on wireless, one Ramvadan Singh, Sub-Inspector, CCR, Garhwa along with other police officials went to the said spot. As soon as they reached there, they saw the complainant taking photos of the traffic jam and was trying to create a commotion. In the meanwhile, the petitioner who also happened to reach the spot with his guards was trying to remove the traffic jam. While doing so, this O.P.No.2 caught hold of one bodyguard’s collar and was abusing the police and then for such act of the complainant, an FIR being Garhwa P.S.Case No.164 of 2018 was registered against O.P.No.2 which is still pending. While doing so, this O.P.No.2 caught hold of one bodyguard’s collar and was abusing the police and then for such act of the complainant, an FIR being Garhwa P.S.Case No.164 of 2018 was registered against O.P.No.2 which is still pending. He further submits that since the matter was related with a lawyer a P.I.L was filed by the practicing Advocate which is W.P.(P.I.L) No.2255 of 2018 and in that P.I.L certain directions were issued and it was also ordered to initiate the department proceeding against this petitioner. Pursuant thereto, the department proceeding has been initiated and the petitioner has been exonerated in the departmental proceeding, however, few constables have been punished. He further submits that pursuant to departmental proceeding it was brought before the Division Bench hearing the aforesaid P.I.L, by order dated 04.01.2019 considering the statement of the complainant which was recorded in the departmental proceeding, the Court disposed of the said P.I.L. He submits that on the same set of evidence, criminal prosecution has been instituted which was the subject matter of the departmental proceeding. He submits that in the departmental proceeding, the complainant has been examined and considering the statement of the complainant, the Division Bench has disposed of the P.I.L considering that to allow the complaint will amount to abuse of the process of law. 6. Per contra, Mr. Abhay Kumar Mishra, the learned counsel appearing on behalf of the O.P.No.2 submits that the complainant is a practicing Advocate of Garhwa and he was miss-handled by the police and considering that aspect of the matter the Division Bench in the said P.I.L directed to institute a complaint case against the petitioner and it was directed that the said complaint will be enquired by the learned court and it will not be sent to the police. He further submits that the witnesses have been examined in the complaint and thereafter the learned court has taken cognizance. He submits that there is no nexus of departmental proceeding as well as the criminal proceeding. He further submits that he was not discharging the official duty and that is why section 197 Cr.P.C is not helping the petitioner. On these grounds, he submits that the petition is fit to be dismissed. 7. Mr. He submits that there is no nexus of departmental proceeding as well as the criminal proceeding. He further submits that he was not discharging the official duty and that is why section 197 Cr.P.C is not helping the petitioner. On these grounds, he submits that the petition is fit to be dismissed. 7. Mr. Hatim, the learned counsel appearing on behalf of the respondent State also contended that section 197 Cr.P.C is not attracted in the case of the petitioner and he submits that there is no illegality in the impugned order. 8. In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has perused the materials on record, and finds that on 30.04.2018 for altercation between the police and the complainant, the complainant was taken to the police and later on he was released on bound for that P.S.Case No............ has also been lodged which is still pending. Pursuant to the directions of the Division Bench of this Court in the P.I.L, the complaint case has been registered against the petitioner. The direction of the Division Bench was also taken care of by the respondent State and the departmental proceeding has been initiated against the petitioner in which he has been exonerated. However, the guilty persons against whom the departmental proceeding proved they have been punished. Looking into the records, it is crystal clear that there was a road jam and the petitioner was discharging the official duty and this petitioner was posted as S.P., Garhwa at that time and when he reached the spot and if he has taken any action in clearing the jam, it cannot be said that he was not discharging the duty. The petitioner is an I.P.S officer. For correct appreciation of section 197 Cr.P.C, it is quoted hereinbelow: Section 197 Cr.P.c xxxxxxxxxxxxxxxx 9. In the case of P.K. Pradhan v. State of Sikkim, (2001) 6 SCC 704 , at paragraph no.5, it has been held as under: Para no.5 xxxxxxxxxxxxxxxxxxxxx 10. With regard to Section 197 Cr.P.C. again it has been held by the Hon’ble Supreme Court in the case of Gauri Shankar Prasad v. State of Bihar and Another, (2000) 5 SCC 15 , wherein at paragraph no.7, it has been held as under: Para no.7 xxxxxxxxxxxxxxxxxxxx 11. With regard to Section 197 Cr.P.C. again it has been held by the Hon’ble Supreme Court in the case of Gauri Shankar Prasad v. State of Bihar and Another, (2000) 5 SCC 15 , wherein at paragraph no.7, it has been held as under: Para no.7 xxxxxxxxxxxxxxxxxxxx 11. Section 197 Cr.P.C was earlier the subject matter before the Hon’ble Supreme Court in the case of Abdul Wahab Ansari v. State of Bihar and Another, (2000) 8 SCC 500 , wherein at paragraph no.7 it has been held as under: Para 7 xxxxxxxxxxxxxxxxxxxxxxx 12. The action of the police was against the subject matter in the case of K.Kalimuthu v. State by D.S.P, (2005) 4 SCC 512 , wherein at paragraph no.15 it has been held as quoted below: Para no.15 xxxxxxxxxxxxxxxxxxxxxx 13. After going through the above judgments, it is crystal clear that the court is precluded from entertaining the complaint or taking note of it or exercising judicial power if a public servant has committed offence in discharge of his official duty, from this view of the Apex Court, it is clear that if the public servant in discharge of his official duty has committed any offence in which complaint is made, sanction of the Government or the competent authority is pre-requisite condition. Moreover, this petitioner has faced the departmental proceeding pursuant to the order passed by the Division Bench in the aforesaid P.I.L and he has been exonerated. It is well settled that if a departmental proceeding with regard to the same allegation the employee is exonerated the criminal case is not made as held by the Hon’ble Supreme Court in the case of ‘Ashoo Surendranath Tewari v. CBI’, (2020) 9 SCC 636 . Paragraph no.12 of the said judgment is quoted below: “12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case, SCC p. 598) “38. Paragraph no.12 of the said judgment is quoted below: “12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case, SCC p. 598) “38. The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.” 14. The Division Bench has disposed of the said P.I.L considering that the statement of the O.P.No.2 has also been taken in the departmental proceeding and the Division Bench has also looked into the statement of the complainant and thereafter came to the conclusion that there is no need of continuing with the said P.I.L. The order dated 04.01.2019 passed in W.P.(PIL) No.2255 of 2018 is quoted hereinbelow: “Heard the writ petitioner in person and learned Advocate General, representing the State respondents. The matter relates to the assaults made upon an advocate of Garhwa, Sri Ashish Kumar Dubey, by police. The result of the departmental proceeding against the then S.P., Garhwa, has been brought on record, which also contains the statement of the victim advocate Sri Ashish Kumar Dubey. The matter relates to the assaults made upon an advocate of Garhwa, Sri Ashish Kumar Dubey, by police. The result of the departmental proceeding against the then S.P., Garhwa, has been brought on record, which also contains the statement of the victim advocate Sri Ashish Kumar Dubey. The then S.P., Garhwa has been exonerated in the departmental enquiry and looking into the statement of the victim advocate himself, as recorded in the enquiry report, prima facie, we do not find any material to proceed with this writ petition, any further. One S.I. and three constables have been held guilty in the separate departmental proceeding and they have been awarded some punishments. We are also informed that one complaint case is also pending, as filed by the victim advocate Sri Ashish Kumar Dubey. In that view of the matter, we do not find any material to keep this writ petition pending, which is, accordingly, disposed of. The aforesaid interlocutory application also stands disposed of. We only make it clear that the complaint case, filed by the victim advocate Sri Ashish Kumar Dubey, shall be dealt with, in accordance with law, without in any manner, being prejudiced by any statements/orders in this writ petition.” 15. In view of the above facts, the reasons and the analysis, considering that the petitioner was discharging the official duty and he has been exonerated in the departmental proceeding and the statement of the complainant has been looked by the Division Bench and pursuant thereto the P.I.L has been disposed of, to continue with the criminal proceeding in this petition will amount to abuse of the process of law. 16. Accordingly, the entire criminal proceeding including the order dated 02.12.2019 in connection with Complaint Case No.836 of 2018, pending in the court of learned Chief Judicial Magistrate, Garhwa is quashed. 17. Cr.M.P.No.156 of 2020 stands allowed and disposed of. 18. I.A., if any, also stands disposed of.