Amareshwar Sahay, J.
1. The petitioner, who is the Police Officer, has filed this application for quashing of the order taking cognizance dated 24/08/2004 for the offence under Suctions 323, 355 and 504 IPC as well as the entire criminal prosecution against him.
2. The facts, in short, are that a complaint petition was filed in the Court of the Chief Judicial Magistrate, Palamau by O.P No. 2 Sudhir Kumar Choubey against the petitioner alleging therein that the complainant was an Advocate of Daltonganj whereas the accused/petitioner was the Officer-in-Charge of G.R.P., Garhwa Road. The accused knowing fully well that the complainant was an Advocate, arrested him on 28/04/2004 at Rehla Bazar Chowk and brought him under handcuff to G.R.P., Garhwa, where he was assaulted, abused and insulted by the accused/petitioner. On the basis of the said allegations, it was prayed by the complainant to take cognizance against the accused for the offence under Sections 323, 355, 504, 352 and 506 IPC. The learned court below, after making enquiry under Section 202 Cr.P.C. took cognizance of the offence under Sections 323, 355 and 504 IPC against the accused/petitioner.
It is submitted on behalf of the petitioner, that the complainant has filed the complaint case as a personal vendetta. The petitioner being the Officer-in-Charge of Rail Police Station, Garhwa Road, arrested the complainant Sudhir Kumar Choubey on 28/04/2004 on the basis of the F.I.R. lodged by one Ashok Kumar Gupta under Section 341, 323, 379, 307 IPC as he was a named accused in the said case and the charge sheet was already submitted against him but he was evading his arrest in that case. Hence, the petitioner being a police officer arrested him for which he was empowered under the law. The petitioner has denied the allegations made in the complaint petition that he in any way misbehaved with the complainant or assaulted and abused him and brought him to the police station by handcuffing him.
3. The learned Counsel for the petitioner submitted that no sanction as required under Section 197 Cr.P.C. was taken prior to filing of the complaint or prior to order taking cognizance against the petitioner and, therefore, the order taking cognizance is bad in law. It is submitted that the petitioner being the public servant arrested the complainant in discharge of his office duties and, therefore, the prior sanction was a pre-condition for taking cognizance against the petitioner as envisaged under Section 197 Cr.P.C. It has also been submitted on behalf of the petitioner that no prima facie case for commission of any criminal offence is made out against him.
4. In support of such submission, the learned Counsel for the petitioner relied on a decision of the Supreme Court in the case of Anjani Kumar v. State of Bihar and Anr., reported in 2008 (3) Eastern Criminal Cases 26 (SC)'.
5. The O.P. No. 2 has not disputed the said fact that he is an accused named in the FIR, which has been registered under Sections 341, 323, 379, 307 IPC and in which the charge sheet has already been submitted against him.
6. In view of the facts noticed above, it is apparent and clear that the petitioner being a public servant in discharge of his official duties arrested the complainant/accused after submission of the charge sheet.
Section 197 Cr. P.C. reads as under:
197. Prosecution of Judges and public servants. - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his office duty, no Court shall take cognizance of such offence except with the previous sanction.
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
[Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression 'State Government' occurring therein, the expression 'Central Government' were substituted.]
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of Sub-section 92) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as my be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression 'Central Government' occurring therein, the expression 'State Government' were substituted.
[(3A) Notwithstanding anything contained in Sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a Stage while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
7. Section 197 Cr.P.C. clearly debars the Court from taking cognizance of an offence against the public servant in absence of prior sanction if the alleged act done was in discharge of the official duties. The arrest of the accused/complainant by the petitioner was wholly connected with his official duties and, therefore, law is well settled in this regard. The plea of sanction touches the jurisdiction in the Court and, as such, the learned Magistrate was debarred from taking cognizance against the petitioner in absence of prior sanction since he was protected under Section 197 Cr.P.C. Admittedly, no sanction has been taken in the present case for launching prosecution against the petitioner.
8. In view of the facts and circumstances discussed above and relying on the decision of the Supreme Court in the case of 'Anjani Kumar v. State of Bihar and Anr.' (supra), this application is allowed. Consequently, the impugned order taking cognizance dated 24/08/2004 against the petitioner as well as the entire criminal prosecution being Complaint Case No. 228/2004, pending in the Court of S.D.J.M., Daltonganj, is hereby quashed.