GAURI SHANKAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Whether in all circumstances, for prosecution of a public servant, sanction under Section 197 of the Code of Criminal Procedure is required to be obtained is a moot question to be answered in this case.

(2.) On the basis of a complaint that the petitioner in course of an anti-encroachment drive entered in the chamber of the Complainant and abused him in presence of his patients and ultimately dragged him out from his chamber, the Magistrate, after examining the Complainant and his witnesses, took cognizance of the offence against the petitioner under Sections 147, 323, 427, 452 and 504 of the Indian Penal Code.

(3.) By this application, the petitioner has prayed for quashing of the said order of taking cognizance dated 22.5.1998. Mr. Tara Kant Jha, learned Senior Counsel for the petitioner, relying on the decisions in the case of Director of Inspection and Audit and others V/s. C.L. Subramaniam, 1994 Supp3 SCC 615; Naresh Mishra V/s. The State of Bihar and another,1997 1 PLJR 1012 , has contended that the petitioner being the Sub-divisional Magistrate had gone for implementing the High Court order for removing encroachment and before starting anti-encroachment drive, a general notice to the public to remove the encroachment was issued and pursuant thereto some encroachments were removed in the National Highway with the Police help and if in such circumstance even if some excesses were committed, the petitioner, being a public servant, sanction was required.