GIRJA SHANKAR SAHAY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application for quashing an order dated the 24th August, 1968, passed by the acting Sub-divisional Magistrate. Dumka in O. C. R. No. 372 of 1968/T. R. No. 855 of 1968 taking cognizance of a case under Section 223 of the Indian Penal Code against the petitioners and also against an order dated the 20th December, 1968 passed by the Munsif Magistrate. 1st Class, Dumka to whom the case was transferred, holding that no sanction under Section 197 of the Code of Criminal Procedure was necessary for proceeding against petitioner No. 1.

(2.) ON the 26th April. 1968 at 12-45 A. M. a motor truck bearing registration no WBK 6064 was apprehended at Kurwa check post by petitioner No. 1. The truck was loaded with foodgrains, as also with 49 bags of milk powder, the latter being a restricted commodity. Immediately on the same day petitioner No. 1 wrote a memo informing the Subdivisional Officer. Dumka, about the incident and further saying in his memo that "as it is one of the restricted commodities you are thereby informed to kindly take necessary action in the matter. Six men including the driver have been detained and confined in the said truck." It appears from the subsequent note sent by petitioner No. 1. to the Sub-divisional Officer again, which note was also sent on the same date as the first one, informing the Subdivisional Officer that at about 8.30 in the morning a fire broke out in the check post, and in the confusion that followed by the fire, five of the six persons detained fled away. ONly one of them, namely, Jagdish Singh, who was a co-driver of the said truck, remained behind. It appears that at an oral instruction given by the Subdivisional Officer the police registered a case under Section 414 of the Indian Penal Code against the petitioners and started an enquiry. Ultimately on the 4th June, 1968, the police recommended prosecution of the petitioners under Section 223 of the Indian Penal Code. The Sub-divisional Officer by his order dated the 24th August, 1968, took cognizance of an offence under Section 223 of the Indian Penal Code against the petitioners and transferred the case for trial to Mr. R. N. Singh, Munsif Magistrate, 1st Class, Dumka. At this stage petitioner No. 1 filed an application stating that since the cognizance taken in the case against him wise. He cannot be guilty of an offence Section 197 of the Code of Criminal Procedure, the prosecution be dropped. This application was rejected by an order dated the 20th December. 1968 it being held that no such sanction was necessary.

(3.) MR. Agarwal appearing for the State submitted that so far as the question of sanction under Section 197 of the Criminal Procedure Code was concerned that did not apply to the case of petitioner No. 2. who was not a public servant within the meaning of that section. He further submitted that the question as to whether or not an offence was disclosed on the basis of the allegations made against the petitioners was a question which could be decided at the trial. At the present moment the allegations were such as did disclose an offence having been committed by the petitioners. In this respect he drew my attention to the Bihar Sales Tax Act and to the duties and obligations of the petitioners under Section 41 read with Rule 32 of the said Act. He submitted that the application was premature and, therefore, it ought to be dismissed.