GUNAJIT PATHAK Vs. STATE OF ASSAM

JUDGEMENT

(1.) Whether order dated 27.06.2013 passed by the learned SDJM(S), Dibrugarh, in CR Case No. 38C of 2013 taking cognizance under Sections 448/193/506/294/34 IPC is vitiated for not obtaining prior sanction as required under Section 197 of Cr.P.C. is the short question to be answered in this Criminal Petition. One Vijay Pandey, a practising advocate of Dibrugarh Bar Association, lodged a complaint before the learned SDJM(S), Dibrugarh, stating that his mother Smt. Chintamoni Pandey is a patient of blood cancer of the last stage and undergoing treatment at Dibrugarh and Guwahati. His father late Anil Pandey was absolute owner in possession of a plot of land measuring 9 ft. on the North-South and 84 ft. in the East-West under Dag No. 171 and Periodic Patta No. 73. Said Anil Pandey got decree of the learned Civil Court with respect to the land on 21.03.1997 from the Court of learned Civil Judge-II (Junior Division), Dibrugarh, in Title Suit No. 9 of 1993 against one Smt. Lalmoni Pandey and others. The complainant further stated that apart from the said property, they have ancestral property at Chiring Chapari where they reside. On 28.06.2012 when his mother was out for about 3 hours with effect from 5 P.M. and came back at 8 P.M., she discovered that 4 to 5 unknown persons hired by one Manoj Pandey and his associates had come to their residence for illegally leasing out the same. Mrs. Chintamoni Pandey having raised protest they disclosed that they had already got some records prepared for the purpose of grabbing the said land Under such circumstances, the complainant moved an application before the learned Executive Magistrate for drawing up a proceeding under Section 145 Cr.P.C. Eventually, the Additional Deputy Commissioner, Dibrugarh, issued a prohibitory order against the aforesaid Manoj Pandey and his associates by drawing up a proceeding under Section 145 Cr.P.C. vide Case No. 302/2012. It is further stated that in continuation of such dispute referred to above said Manoj Pandey and others on 30.06.2012 attempted to kill the complainant with view to grabbing the land in question at 7.30 A.M. for which the complainant lodged F.I.R. at 8 A.M. The mother of the complainant was medically examined by the police but the counterparts of the complainant being resourceful person police did not take any action. Thereafter, at 9 A.M. on the same day the accused persons No. 1 & 2 who are the petitioners No. 1 & 2 herein entered into the house of the mother of the complainant without any lady police and took her with them to police station and detained her there at 1 P.M. on 01.07.2012. She was produced before the learned CJM, Dibrugarh, at 3 P.M. on the following day. The Petitioner further alleged that the accused persons No. 1 & 2 who are police officers did not pay any heed to the appeal made by the complainant to the effect that the arrested, namely, Mrs. Chintamoni Pandey, was a patient of blood cancer of last stage. They took her to police doctor, namely, Dr. M.M. Pathak who recommended for immediate hospitalisation in Dibrugarh Medical College hospital but the accused persons kept her in police lockup overnight.

(2.) Under such circumstances, her son Vijay Pandey lodged a complaint before the learned SDJM(S), Dibrugarh. It is in the complaint alleged as follows:

(3.) The learned SDJM(S) on the basis of the aforesaid complaint and initial deposition of the complainant took cognizance under the aforesaid sections of law and issued process for appearance of the accused persons. This order taking cognizance of offence against 3 officers of Dibrugarh Police Station has been challenged under the present petition under Section 482 Cr.P.C. on the ground that section 197 Cr.P.C. bars taking of cognizance against public servant without prior sanction.