IMPORTANT POINT
A Karamchari who is not a public servant not removable from his office save by or with the sanction of the State Government, cannot seek the aid of Section 197 Criminal Procedure Code.

JUDGMENT

Bhuvaneshwar Prasad, J. - This application under section 482 of the Code of Criminal Procedure, 1973 (In short 'the Code') has been filed for quashing the prosecution of the petitioner for the offences under Sections 406 and 504 of the Indian Penal Code in Complaint case No.42-C of 1988 including the order dated 30-3-1988 passed by Shri A.K. Verma, Judicial Magistrate IInd Class, Nalanda at Biharsharif ordering for issuance of processes against the petitioner on the ground that a prima facie case under the aforesaid sections has been made out against him.

2. It appears that Opposite party Raghunandan Prasad had filed a comp1aint petition (Complaint Case No.42-C of 1988) against the present petitioner before the Chief Judicial Magistrate, Nalanda at Biharsharif. In this complaint petition he had made allegations against the petitioner with respect to the offence under Sections 406 and 504 of the Indian Penal Code. According to the Opposite party he had handed over a sum of Rs.300/- to the petitioner on 4-2-1988 towards the land revenue but the petition did not grant him any rent receipt. On the other hand, the petitioner asked him to come on the following day for obtaining in the receipt On this the Opposite party had asked him to return back the money. The petitioner refused to do so, was infuriated, abused him and forcibly turned him out frpm1he Ghosrawan Kutchery. There by the opposite party alleged that the petitioner committed criminal breach of trust with respect to Rs. 300/- handed over to him and also the offence under Section 504 of the Indian Penal Code by intentionally insulting him with intent to provoke breach of peace by turning him out from the

Kutchery. The learned Chief Judicial Magistrate examined the opposite party ort solemn affirmation and by his order dated 5-2-1988 made over the case for inquiry or trial under Section In of the Code to the court of Shri A.K. Verma, Judicial Magistrate, and Class. This order in particular as also the entire criminal Prosecution against the petitioner are under challenge.

3. Before Shri A.K. Verma; Judicial Mgistrate, IInd Class two witnesses were examined and finding a prima facie case made out against the petitioner he ordered for the issuance of processes against him by his order dated 30-3-1988. This order of the learned Magistrate has also been challenged as incompetent.

4. It has further been point out on behalf of the petitioner that no case under Sections 406 and 504 of the Indian Penal Code has been made out against him. The Opposite party was annoyed against him over the construction of a road on plot No. 339 in the village. The report submitted by the petitioner had infuriated and annoyed the opposite party for which he had filed a petition before the Collector, Nalanda. The records of the Anchal will show that the rent only a sum of Rs. 194.38 paise was due from the Opposite party upto 31-3-1988. As such there was no occasion for the Opposite party to hand over a sum of Rs. 300/- to the petition towards the payment of this rent. The allegations made in the complaint C petition do not make out a case of criminal breach of trust. The allegations that when the Opposite party had insisted for the issuance of a receipt the petitioner got him forcibly removed from the office and also abused him appear to be highly improbable. The petitioner is a Karamchari and therefore a public servant. The allegation against him is that while discharging his official duties as a Katamchari be had received a sum of Rs. 300 from the opposite party, as such while receiving this amount has was acting or purporting to act as a public servant in discharge of his official duties and therefore he cannot be prosecuted without proper sanction of the government as required under Section 197 of the Code. The offence under Section 406 of the Indian Penal Code is triable by a Magistrate of 1st Class and therefore the case could not have been handed over to Shri A.K. Verma, Judicial Magi