Sunil Kumar Singh vs The State of Bihar

This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 7.6.2008 passed by learned

Judicial Magistrate, Katihar, in Complaint Case No. 943 of 2007 by which the learned Magistrate after holding enquiry has found prima facie case

against the petitioner and other accused persons for the offences under Sections 195, 197, 469, 387 and 120(B) of the Indian Penal Code.

Heard learned counsel for the petitioner and learned counsel for the State.

Learned counsel for the petitioner has submitted that petitioner was posted as SHO Manihari Police Station, Katihar. He was Government servant

and discharging his official duty. It has further been submitted that learned Magistrate has committed illegality in taking cognizance against this

petitioner and other accused persons by the impugned order dated 7.6.2008 without proper sanction as described in Section 197 Cr. P.C. It has further

been submitted that order of cognizance with regard to one of the coaccused Ram Krishna Poddar has already been quashed by a coordinate Bench

of this Court vide judgment dated 15.01.2012 passed in Cr. Misc. 24488 of 2009 on the ground that there was no sanction under Section 197 Cr. P.C.

Learned A.P.P. has submitted that there is no illegality in the impugned order.

From bare perusal of Section 197 Cr. P.C. it is clear that if a Public Servant who is an accused of any offence alleged to have been committed by

him, while acting or purporting to act in discharging of his official duty, no court shall take cognizance of such offence except with the previous

sanction of the State Government if he is employee of the State Government.

It was mandatory on the part of the learned Magistrate to demand sanction order at the time of taking cognizance itself. From the impugned order it

appears that learned Magistrate has mentioned that necessary permission petition has been forwarded to Director General of Police, Patna, through

Pleader Notice with reminder.

In this manner, from the impugned order itself it is apparent that there was no sanction as required under Section 197 Cr. P.C. at the time of

passing the impugned order. In this respect, the Hon�ble Supreme Court in a decision reported in AIR 1998 SC 2379 (State of Bihar Vrs. Kamla

Prasad and Ors.) has held that no cognizance of the alleged offences could be taken without a proper sanction of the Government.

Therefore, the impugned order passed by the Court below is not in accordance with law.

Accordingly, the impugned order dated 7.6.2008 passed by learned Judicial Magistrate, Katihar, in Complaint Case No. 943 of 2007 along with the

entire criminal proceeding against the petitioner is hereby quashed.

This Criminal Miscellaneous application is accordingly allowed.