ANIL KUMAR SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application, the petitioner, who is an employee in the office of the Commissioner, Patna Division, has prayed for quashing the order dated 29.9.1995, by which the learned Judicial Magistrate took cognizance of an offence punishable under Sections 355, 323,341, 326 and 379 of the Indian Penal Code against the petitioner.

(2.) The complainant-opposite party filed a petition by way of complaint before the learned Chief Judicial Magistrate Patna on which 23.8.1995, which was registered as complaint case No. 720(C)/95. Sum and substance of the allegation is that the complainant is a gardener in the service of the State Government who was appointed on compassionate ground after the death of his father-in-law. It is alleged that his father-in-law was allotted one room in Veer Kunwar Singh Park and till his death, he used to reside there. It is alleged that after the death of his father-in-law, the room was orally allotted to him after his appointment on compassionate ground and since then he Was in occupation of the said room till the date of the instant occurrence, i.e. 19.8.1995. It is alleged that the said room was also used by another Mali. RajdeO Mahto and is being used as Union Office. It is further alleged that the petitioner is a supervisor of Veer Kunwar Singh Park Memorial Funds, Patna, and one Sri Haroon Rashid is its Secretary It is alleged that the petitioner along with the Secretary have defalcated about rupees two lakhs for which a criminal case being complaint Case No. 265(C)/94 is pending against them. It is further alleged that on 19.8.1995, the petitioner along with two others came at the place of occurrence at about 8 a.m. and asked the complainant- opposite party to remove the office of the Union and then only, he will be allowed to stay in the room. When he did not oblige, the petitioner was said to have hurled abuses and threatened him with dire consequences. It is further alleged that on 19.8.1995, the petitioner along with police force reached at the spot and asked the complainant-opposite party to vacate the room. When be refused to do so, the petitioner assaulted him and forcibly removed the documents of the Union from the room. On the basis of the aforesaid allegation, a case was instituted as stated above. A copy of the complaint petition is marked Annexure 1 to this petition. The complainant himself and two witnesses were examined on S.A. The complaint was sent for inquiry under Section 202 of the Code of Criminal Procedure. On the basis of inquiry report cognizance was taken for offence as stated above against the petitioner which is under challenge in this application.

(3.) Mr. P.K. Shahi, learned counsel for the petitioner has challenged the order of taking cognizance against the petitioner on the ground that the instant criminal proceeding against the petitioner is malicious and uncalled for and further submitted that no case is made out even on the allegation made in the complaint-petition is taken to be on its face value. It is further submitted that the petitioner being a public servant cannot be prosecuted without obtaining prior sanction of the competent authority. Learned counsel for the petitioner while developing his argument has drawn the attention of the Court towards the resolution of the Committee. Pursuant to the resolution of the Committee, the Secretary of the Commissioner had requested the District Magistrate, Patna, to remove encroachment and/or evict persons including the complaint-opposite party, Sidheshwar Prasad, from unauthorised occupation of the room situated in Veer Kunwar Singh Park. It is stated that pursuant to the order of the higher authority, the petitioner went to evict unauthorised persons who were in unauthorised occupation of the room and the park in question. It is alleged that no document was ever produced by the Opposite Party No. 2 to show that he was allotted that room by competent authority.