IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.463 of 2005
MD. IQBAL
Versus
STATE OF BIHAR & ANR
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10/ 09-07-2008 Heard learned counsel for the petitioner and learned
counsel for the State.
None appears on behalf of Opposite Party No. 2.
This application has been filed for quashing the order
dated 24.4.2002 passed by Sri S.K. Agnihotri, Judicial Magistrate, Ist
Class, Patna in Complaint Case No. 2152 ( C )/2001 whereby and
whereunder he has taken cognizance under Section 323 of the Indian
Penal Code against the petitioner.
Shortly stated the case of the Complainant/ Opposite
Party No. 2 as put in the petition of the complaint filed on 24.11.2001
before the Chief Judicial Magistrate, Patna is that on 6.10.2001 he had
come to Patna to purchase computer parts for repairing disordered
computers of his training centre, namely, “Suchana Yewam
Pradhyogiki Kendra”, Chandani Chowk, Sheikhpura where he used to
provide computer education to the trainees. While the
Complainant/Opposite Party No. 2 was travelling from Patna to Bihar
Sharif on a private bus the petitioner-accused along with others
followed him by a jeep and intercepted the bus. The complainant was
forcibly brought down from the bus and boarded on the jeep along
with the computer parts said to have been purchased by him with cash
memo. It is alleged that petitioner-accused brought the complainant
to Patna in the said jeep and by putting the complainant in fear
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extorted the belongings and all the purchased computer parts after
beating him with fists and slaps and misbehaved with the complainant.
It is said that a seizure list was prepared but a copy of the same was
not given to the complainant. The complainant on 8.10.2001 saw the
petitioner-accused in the office of Custom and Central Excise, Bailey
Road, Patna and then he came to know that the petitioner is the
Superintendent, Custom and Central Excise, posted in Patna.
Thereafter the complainant tried to get back all his belongings and
sent two notices through lawyer dated 19.10.2001 and 20.11.2001 but
no reply was given by the petitioner-accused. Thereafter the
complainant filed Complaint Case No. 2152 (C)/2001 before the
Chief Judicial Magistrate, Patna. It appears that the complainant was
examined on solemn affirmation and during enquiry under Section
202 Cr.P.C. three witnesses were examined and learned Magistrate
after being satisfied that there was material to proceed further against
the petitioner under Section 323 of the Indian Penal Code issued
summons against him. Against the said order the petitioner-accused
has preferred the present application before this Court.
Learned counsel submitted that though the alleged
occurrence took place on 6.10.2001 but the Complaint was filed in the
Court of C.J.M. on 24.11.2001. He submitted that the petitioner is the
Superintendent of Custom and Central Excise. He is a government
servant and, therefore, he can not be prosecuted in absence of the
required sanction under Section 197 Cr.P.C. He further submitted that
it is admitted position that on 6.10.2001 at 9.45 p.m. the seizure list
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was made from the possession of the complainant. In this connection
he referred to the seizure list Annexure-2 and the statement of the
complainant Annexure-2/1 to the application. He further submitted
that the Deputy Commissioner, Customs (P) Division, Patna through
order dated 15.7.2002 confiscated the foreign origin miscellaneous
computer parts worth Rs. 42,650/- seized from the complainant in the
custom case.
Learned counsel then submitted that the petitioner did
not assault the complainant and even if the petitioner did something
more in excess of the requirements of the situation even then the same
is protected under Section 197 Cr.P.C. In support of his contention
reliance has been placed on a decision given in the case of Shri
Pancham Lal Versus Shri Dadan Singh reported in 1978 PLJR
480.
Learned State counsel submitted that the question of
sanction can be considered at subsequent stage also.
It is now admitted position that on 6.10.2001 at 9.45
p.m. the complainant was apprehended with foreign origin
miscellaneous computer parts. The computer parts were seized and a
seizure list was prepared and a copy of the same was given to the
complainant. Annexure-2/1 to the application indicates that he
admitted the seizure list before the Custom officials. It is also
admitted that the petitioner is a Central Government servant. The act
was performed by the petitioner in discharge of his official duty.
Admittedly no sanction was obtained in this case for the prosecution
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of the petitioner. The decision relied upon by the petitioner’s counsel
supports his argument. In absence of sanction the order of cognizance
is bad in law.
In the facts and circumstances of the case, this
application is allowed and the order of cognizance dated 24.04.2002
against the petitioner is hereby quashed.
S.Sb/- (Madhavendra Saran, J.)