BISHWANATH SINGH Vs. BIRSAI BHAGAT

JUDGEMENT

(1.) IN this application, the prayer of the petitioner is for quashing the order, dated 25.5.1995 passed by the learned Judicial Magistrate, whereby the complaint petition filed by the petitioner has been dismissed on the ground of lack of sanction. The complainant -petitioner filed a complaint petition before the Chief Judicial Magistrate, Gaya, alleging, inter alia, that an objection case under Section 9. of the Bihar and Orissa Municipal Survey Act was pending before the opposite -party, who was Assistant Superintendent of Survey at the relevant time. In the aforesaid proceeding a surveyor was appointed in order to ascertain the genuineness of the claim of the petitioner. It is alleged that a report was accordingly submitted in favour of the petitioner. The case was fixed for hearing on 6.9.1993 but for some reason the case was not heard on that date. It is alleged that on 8.9.1993, the opposite -party Birsai Bhagat, Assistant Superintendent of Survey through a messenger, asked the petitioner to meet him in connection with the aforesaid pending case. It is further alleged that the petitioner sent his representative Mr. Upendra Kumar Singh, who was examined as PW 1. It is further alleged that the said representative informed the petitioner that the opposite -party asking for illegal gratification of Rs. 1,000/ - for passing a favourable order in favour of the petitioner. However, the petitioner did not oblige and ultimately the said objection case was dismissed on 25.8.1993. It is alleged that the petitioner obtained a certified copy of the order when he was shocked to know that the objection case was dismissed on 25.8.1993. Accordingly, a complaint was filed before the Chief Judicial Magistrate, Gaya, for initiating a proceeding under Sections 166, 167, 218 and 384 of the Indian Penal Code. The learned Magistrate, on consideration of the materials on record, dismissed the complaint petition on the ground that no sanction in terms of Section 197 of the Code of Criminal Procedure has been obtained before filing the complaint petition.

(2.) LEARNED counsel for the petitioner has challenged the order on the ground that having regard to the nature of the allegation made in the complaint petition, no sanction is required for initiating a criminal proceeding against the opposite -party. It is submitted that it is none of the business of the authority to ask for bribe for showing favour in the pending objection case. While developing his argument learned counsel submits that asking for bribe to pass a favourable order in favour of the petitioner cannot be said to be exercised of power in discharge of his Public Duty and, as such, the learned Magistrate has committed an illegality in dismissing the complaint petition in absence of sanction order. Learned counsel for the petitioner in support of his contention has relied upon the decisions in the following cases;