Obais Nadaf vs State Of Bihar And Anr
2023 Latest Caselaw 4969 Patna

                  IN THE HIGH COURT OF JUDICATURE AT PATNA
                          CRIMINAL MISCELLANEOUS No.22599 of 2017
              Arising Out of PS. Case No.-1017 Year-2003 Thana- DARBHANGA COMPLAINT CASE
                                                District- Darbhanga
             ======================================================

Obais Nadaf, son of Late Md. Ismail Nadaf, resident of Village and Post Nainaghat, P.s.- Sadar Darbhanga, District- Darbhanga.

... ... Petitioner/s Versus

1. The State Of Bihar

2. Raghnath Prasad, son of Late Chalitar Mahto, Erst white S.D.O. Darbhanga, resident of Village- Hrishankarpur, P.O. and P.S.- Tajpur, District- Samastipur.

... ... Opposite Party/s ====================================================== Appearance :

             For the Petitioner/s   :        Mr. Durga Nand Jha
             For the State          :        Smt. Asha Kumari

====================================================== CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT

27-09-2023 1. Heard learned counsel for the petitioner

and learned APP for the State.

2. The present quashing application has been

filed seeking quashing of the order dated 20.08.2016 passed

by the learned Sessions Judge, Darbhanga in Cr. Revision

No.308 of 2016, whereby the order dated 02.05.2016

passed by the learned A.C.J.M., Darbhanga in CR No.1017

of 2003/Tr. No.508 of 2016, whereby cognizance was taken

under Sections 323, 341, 304(II), 504, 34 of the I.P.C. was

set aside.

3. The learned counsel for the petitioner Patna High Court CR. MISC. No.22599 of 2017 dt.27-09-2023

submits that the opposite party no.2 is Sub-Divisional Officer

and he along with the officials had gone for removing

encroachment in terms of the order of the Superior

Authorities, when it is alleged that the son of the petitioner,

who runs a hotel, despite showing all the documentary

evidence that there was no encroachment, still certain

portion of the hotel was broken on the ground that the same

encroached the government land. Further, when the son of

the petitioner protested, it is alleged that the opposite party

no.2 along with other officials forcefully threw him on a live

wire causing his death. Accordingly, a complaint case was

instituted and the learned A.C.J.M. after recording the

evidences of the petitioner and his witnesses in inquiry took

cognizance of the offences under Sections 336, 304-A of the

I.P.C.

4. The opposite party no.2, being aggrieved

by the order of cognizance dated 26.08.2010, moved in

Revision before the learned Sessions Judge. It is next

submitted that the said cognizance was taken after taking

into consideration the police report with respect to the U.D. Patna High Court CR. MISC. No.22599 of 2017 dt.27-09-2023

Case No.03 of 2003, which was instituted after the death of

the son of the petitioner. It is next submitted that the

opposite party no.2 against the order taking cognizance

dated 26.08.2010 under Sections 336 and 304-A of the

I.P.C. moved in Revision before the learned Additional

Sessions Judge, Darbhanga by filing Revision Case No.61 of

2012, the said revision application was allowed by order

dated 27.08.2014 and the case was remanded back to the

learned Magistrate for passing a fresh order. It is pointed out

by the learned counsel that the learned Revisional Court in

its order dated 27.08.2014 had also observed that the

learned Chief Judicial Magistrate took cognizance and

summoned the opposite party no.2 without having obtained

sanction by the State Government as incorporated under

Section 197 of the Cr.P.C.

5. The learned counsel submits that on

remand, the learned Chief Judicial Magistrate against took

cognizance of the offences as recorded herein above against

which the opposite party no.2 again moved in revision before

the learned District and Sessions Judge, Darbhanga by filing Patna High Court CR. MISC. No.22599 of 2017 dt.27-09-2023

Cr. Revision No.308 of 2016. The learned counsel next

submits that since cognizance was taken by the learned

Magistrate on remand, as such, the order in favour of the

petitioner was passed and if the learned Sessions Judge in

revision had to interfere with the order, in that event, the

petitioner ought to have been noticed and heard, but without

noticing and hearing the petitioner, the impugned order

came to be passed which is impugned in the present

quashing application whereby the order of the learned

Magistrate taking cognizance has been set aside on the

ground that cognizance could not have been taken in

absence of sanction under Section 197 of the Cr.P.C.

6. The learned Additional P. P. Ms. Asha

Kumari vehemently opposes the submission of the learned

counsel for the petitioner and submits that principle of

natural justice is not in a straight jacket formula. It is next

submitted that prejudice has to be shown that is if the

petitioner was not heard what prejudice has been caused to

him. It is next submitted that the issue was legal and it is

not in dispute that opposite party no.2 is a government Patna High Court CR. MISC. No.22599 of 2017 dt.27-09-2023

servant. Though the occurrence which took place was

unfortunate, but then, the allegation came to be foisted on

the opposite party no.2 that he along with other officials

deliberately pushed the son of the informant on account of

which, he touched the live-wire and got electrocuted. It is

next submitted that the opposite party no.2 was not known

to the son of the petitioner nor he had any enmity rather he

had gone to perform his legal duty in terms of the orders of

his superior for removing encroachment, as such, whatever

happened, happened during the course of discharge of

official duty and the law mandates that if any occurrence

takes place while discharging official duty, then sanction

under Section 197 of the Cr.P.C. is mandated in absence of

which cognizance could not be taken.

7. The learned Additional P. P. next submits

that the issues was purely legal and as such, there was

absolutely no necessity for the Sessions Judge to issue

notice to the petitioner giving him an opportunity of hearing.

It is also submitted that from pleadings made in the

quashing application, it does not even remotely manifest or Patna High Court CR. MISC. No.22599 of 2017 dt.27-09-2023

suggest that sanction was accorded by the authorities in

favour of the opposite party no.2.

8. Considering the submission made by the

learned Additional P. P., the Court finds no merit in the

quashing application.

9. Accordingly, the quashing application is

dismissed.

(Satyavrat Verma, J) vikash/-

AFR/NAFR                N.A.F.R.
CAV DATE                N.A.
Uploading Date          27.09.2023
Transmission Date       27.09.2023