KISHORE KUMAR Vs. STATE OF BIHAR AND ANOTHER

JUDGEMENT

(1.) This application has been filed to quash the order dated 5.1.2007 passed by the Chief Judicial Magistrate, Nawadah in Sirdalla (Meskaur) P.S. Case No. 145/05 thereby cognizance under section 302/34 of the Indian Penal Code and section 27 of Arms Act has been taken against the petitioner and others. Heard learned Ccunsel for the petitioner as well as opposite party No. 2.

(2.) It is submitted by learned Counsel for the petitioner that the petitioner was the officer-in-charge of Meskaur police station. On the alleged date of occurrence i.e. 3.1 1.2005 the petitioner along with armed constables had gone to village Paroria to raid the house of one Md. Ashraf, who was running a mini gun factory. A large number of arms and ammunition were recovered. Accordingly, Ashraf was arrested and on the basis of statement of the petitioner Sirdalla P.S. Case No. 143/05 was registered against Md. Ashraf under provisions of Arms Act (Annexures 2 and 3). It is further submitted that while the petitioner along with police party were returning after raid and arrest of the accused and when reached near Ilnambara of Bijubigha market a mob of about 100-150 persons of villagers were found blocking the road. Seeing the police party they began to raise slogans and attempted to rescue Md. Ashraf. They also bean pelting stones upon the police party. Several police personnel received In the melee one person received gun shot injury probably due to firing made by someone from the mob. A case bearing Sirdalla P.S. Case No. 144/05 was registered under sections 147, 148, 149, 186, 353, 224, 225, 337, 336. 426, 323, 341, 307 of the Indian Penal Code and 27 of Arms Act. Later on, the present case was instituted on the basis of fardbeyan lodged by one Uday Kumar for murder of his brother Pawan Kumar Mishra. It is further submitted that from the facts stated above it is quite apparent that the alleged occurrence took place while the petitioner was discharging his official duty and, therefore, he is protected under the umbrella of section 197 of the Code of Criminal Procedure. Taking cognizance without sanction under section 197 of the Code of Criminal Procedure is bad and illegal.

(3.) It. is further submitted that sanction under section 197 of the Code of Criminal Procedure for prosecution of a public servant is pre-requisite for taking cognizance. It is also submitted that question of sanction under section 197 of the Code of Criminal Procedure goes to the root of the jurisdiction of the Court and, therefore, question cannot be post-postponed and it has to be decided right now. For the above submission learned Counsel for the petitioner has mainly relied upon two decisions of the Apex Court in Rakesh Kumar Mishra Vs. State of Bihar and others, 2006(38) AIC 13 (SC) = 2006 54 ACC 536 = (2006) 1 East Cr C 216 (SC) , Sankaran Moitra Vs. Sadhna Das and another, 2006 (40) AIC 93 = AIR 2000 SC 1599 =2006 (2) Easat Cr C 215 (SC) = (2006) 4 SCC 584 .