RAKESH KUMAR MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Leave granted.

(2.) Appellant calls in question legality of the judgment rendered by a learned single Judge of the Patna High Court dismissing the petition filed by the appellant under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code) seeking the order of cognizance taken by learned Judicial Magistrate, Patna, on a complaint filed by Ramesh Kumar Dubey (Respondent No. 2 in this Appeal). By order dated 11-1-2000 learned Judicial Magistrate took cognizance of offences punishable under Sections 342, 389, 469, 471 and 120-B of the Indian Penal Code, 1860 (in short the IPC). Learned Chief Judicial Magistrate, Patna had transferred the case on 18-1-1997 to the learned Magistrate for enquiry and disposal and that is how the matter was placed before learned Judicial Magistrate, First Class. Primary stand taken by the appellant before the High Court was that in the absence of sanction as contemplated under Section 197 of the Code, the proceeding cannot be continued. The High Court by the impugned judgment rejected the prayer holding that since the requirement of Section 100(4) of the Code were not followed, while search was conducted in the respondent No. 2s premises, the provisions of Section 197 of the Code were not applicable.

(3.) Learned counsel for the appellant submitted that without noticing relevant factual background the High Court has held that the protection under Section 197 of the Code were not available. According to him a report about the commission of dacoity on 8/9-7-1996 was received and Jasidih PS Case No. 103 of 1997 was registered in respect of commission of offence punishable under Section 395 of the I.P.C. The Special Report in respect of the case was 250 of 1996. Supervision of the case was being done by the appellant. Source information was received about the involvement of certain persons, one of whom was Ratnesh Kumar Dubey - alias Chhotu, son of respondent No. 2. On the basis of such information the appellant gave spot instruction to arrest the suspects and conduct search. Search was to be conducted in the house of respondent No. 2. Three Sub-Inspectors were deputed for the purpose and the investigating officer of the case was directed to continue investigation on other lines. On 11-7-1996 the team constituted for the purpose of search requested the police officials of Shastri Nagar Police Station in Patna for co-operation. A requisition slip for the purpose was given. The team of three Sub-Inspectors and local police officials visited the house of respondent No. 2 on 11-7-19992 for the purpose of search and to arrest Ratnesh, if necessary. Elder son of Respondent No. 2 told the police officials that Ratnesh had gone to Delhi and was not present. Though search was conducted no material of any substance was seized. Alleging that the search was motivated and was for the purpose of humiliating and harassing, as the concerned officials did not have a search warrant, the respondent No. 2 and his son Chhotu, complaint was filed on 26-11-1996 in the Court of Chief Judicial Magistrate, Patna. Subsequently, as noted above, the appellant filed the application under Section 482 of the Code which came to be dismissed by the impugned judgment. It was submitted by learned counsel for the appellant that the factual scenario clearly proves the bona fides and in view of the fact that all possible procedure were taken to follow the mandate of law, Section 197 of the Code is clearly applicable. It is submitted that the High Court made reference only to Section 100 of the Code, overlooking the powers available to be exercised under Sections 41, 165 and 166 of the Code and Rule 165 of the Bihar Police Manual. It was, therefore, submitted that the judgment of the High Court is indefensible. Learned counsel for the State of Bihar and Jharkhand supported the stand taken by the appellant.