ORDER
Abhijit Sinha, J.
Page 0521
1. This application under Section 482 of the Code of Criminal Procedure at the instance of one Madan Prasad Singh, erstwhile Officer-in-Charge of Madhuyan Police Station and presently posted in the same capacity at the Lakhaura Police Station is directed against the order dated 27.04.2005 passed by the learned Sub-Divisional Judicial Magistrate, Sikrahna at Motihari in complaint Case No. C2/05 whereby he Page 0522 has taken cognizance of the alleged commission of offence under Section 323 of the Indian Penal Code and has summoned him.
2. The fact of the case lies within a narrow compass and may be noticed with relevant brevity. It is said that during ensuing Bihar Assembly Election, 2005 a general direction followed to all police stations including Madhuban Police station to arrest the Warranties/absconders and criminals in pursuance of the orders of the court and to collect information about terrorists so that peaceful and impartial election could take place in the State. It is further said that in pursuance of this direction the petitioner alongwith a raiding party and having made S.D. Entry No. 20 at 11 P.M. on 1.1.2005 proceeded by keep to execute the order of the Courts and in course thereof with the help of raiding party the he arrested accused Maharaj Sahni of village-Chainpur against whom warrant had been issued from the court of the learned Additional Sessions Judge, Motihari in connection with Sessions Trial No. 316 of 2004. Thereafter the party went to Village-Madhopur at about 2 A.M. on 02.01.2005 where they arrested accused Lakshman Bhagat and Ganga Bhagat against whom warrant from different courts were pending execution. It is said that in course of the raid Maya Devi the wife of Ganga Bhagat recomnstrated with the officials of the raiding party, abused them and started creating resistance in discharge of their official duty. In this connection she started weeping and beckoned her associates and anti-social elements who came and obstructed the raiding party by putting ‘logs’ and ‘henga’ as a result whereof the jeep of the raiding party could not move about. It is said that in the light of the jeep the personnel of the raiding party recognised certain precious who were variously armed with lathies and dandas land they started rescuing the two arrested warranties and they were exhorted by one Rameshwar alias B.D.O. who told them to burn the jeep. It is alleged that on such exhortion Maya Devi smashed the wind screen of the jeep and in the melee the two arrested warranties Lakshman Bhagat and Ganga Bhagat managed to escape but the raiding party succeeded in rearresting them whereas the other associates managed to flee. It is also said that the two warranties were brought to the thana where they were given first aid to the injuries that they had received in the melee and then they were sent to the court alongwith the injury report with escort party. It is further said that on reaching Madhuban Police Station at about 5 A.M. on 2.1.05 the petitioner made Sanha Entry No. 21 wherein it was mentioned that a case under Sections 186, 427 and 504 of the I.P.C. was made out against the aforesaid eight persons for misbehaving with the raiding party and in obstructing them from discharge of their official duty. On the basis of that report Complaint Case No. 5/06 was initiated in the court of sub-Divisional Judicial Magistrate, Sikrahna.
3. It so happened that two dates thereafter i.e. 3.1.05 Maya Devi the wife of Sanga Bhagat lodged a complaint before the learned S.D.J.M., Sikrahna against the petitioner alleging therein that while she was sleeping in her house and her husband was sleeping in the baithka, the petitioner alongwith 5-6 persons entered into her house after breaking open the main door and started pulling her legs then tied her hands and legs and thereafter committed rape upon her. This complaint was registered as complaint Case No. C2/05. At the enquiry under Section 202 of Cr.P.C. the learned Magistrate found a prima facie case Page 0523 under Section 323 of the I.P.C. to have been made out against the petitioner and accordingly cognizance had been taken against him and accordingly he was summoned.
4. It has been submitted on behalf of the petitioner that it would appear from the statements of the complainant on S.A. that she had not supported the case of rape and had only supported the case of assault and that only goes to show the falsity of the complaint.
5. However, the trump card of the submissions of the learned counsel for the petitioner was that he was a public servant and was acting in discharge of his official duty. In this connection it was submitted that he had arrested Ganga Bhagat and Lakshaan Bhagat in pursuance of the warrant issued against them and when the mob in village-Madhopur sought to create hurdles and also resorted to violent acts and the two warranties managed to escape it was in continuation of his duty when he arrested them. It was further submitted that since he was acting in discharge of his official duty no cognizance could be taken without a sanction of the appropriate Government as required under Sub-Section (2) of Section 197 of Cr. P.C. In this connection learned counsel referred to the cases of Jamil Akhtar Javed and Ors. v. State of Bihar and Anr. 1999 BCCR 19, Arun Kumar v. The State of Bihar and Anr. 1999 BCCR 9 26, Abdul Bahab Ansari v. State of Bihar and Anr. 2001 (1) BCCR (SC)30 and Rizwan Ahmad Javed Shaikh and Ors. v. Jammal Patel and Ors. 2001(2) BCCR (SC) 116.
6. The law is by now well settled that previous sanction of the competent authority being a precondition for the court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the Jurisdiction of the Magistrate in the matter of taking cognizance the Apex Court even went further to rule that in such case there is no requirement that an accused shoald wait for taking such plea till the chare es are framed. Reference in this connection may be made to the case of Suresh Kumar Bhikhan Chand Jain v. Pandey Bhushan and in the case of Ashok Sahu v. Gokhul Saikia 1990(Suppl.) SCC 41 it was held that want of sanction under Section 197 of the Cr.P.C. is a prohibition against institution of the proceeding, and the applicability of the section must be judged at the earliest stage of the proceeding.
7. Due regard being had to the facts and circumstances of the case and in the instant case since the petitioner was acting in discharge of his official duty) the previous sanction for his Prosecution was a precondition.
8. Accordingly, this application succeeds and the impugned order taking cognizance is hereby set aside.