The central legal point established is that in cases involving the discharge of official duty, the necessity of sanction for prosecution must be appreciated, and malicious prosecution can be set aside.

Rakesh Kumar, J.

1. The sole Petitioner, who at the relevant time, was Special Executive Magistrate and was duly authorised by the Additional District Magistrate, Law and Order, Patna to get an un-authorised encroachment evicted, has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated, 9th January, 2002, passed by Shri P.D.Gupta, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1749(C) of 2001, whereby the learned Magistrate has taken cognizance of offence under Sections 323 and 380 of the Indian Penal code against the Petitioner and others and directed for summoning the Petitioner and others.

2. Short fact of the case is that the Opposite Party No. 2, an Assistant Teacher, Government Bani Mandir Middle School, Rajbanshi Nagar, Patna, filed a complaint in the Court of Chief Judicial Magistrate, Patna vide Complaint Case No. 1749(C) of 2001 arraying therein one Ashok Kumar, District Superintendent of Education, Patna, the Petitioner and other 12 police personnel as accused on accusation of commission of offence under Sections 448, 323 and 380 of the Indian Penal Code. It was disclosed in the complaint petition that by an order dated, 12th December, 1997, issued by the Deputy Development Commissioner, Patna, a quarter situated at Adalatganj Girls Middle School, Water Tower, was allotted to her. Before the said order, one Late Lakhrani Devi, Head Mistress was living in the said quarter. After her retirement, the Complainant started to live in the said quarter with Lakhrani Devi and her sister Madhuri Kumari. After the retirement of Lakhrani Devi, the said quarter was allotted in favour of one Surendra Prasad, Assistant Teacher by the order of District Superintendent of Education. The Deputy Development Commissioner, Patna, after cancelling the said allotment allotted the said quarter to the Complainant, which was in her possession. After the retirement of Lakhrani Devi, her some amount was due to the department and for payment of such amount, she had filed a petition before High Court vide M.J.C. No. 1293 of 1999, wherein also she had admitted that the Complainant was residing in the said premises. Some time before the date and time of occurrence i.e. 10th September, 2001 at about 4.00 P.M. (Evening), while she had gone to market and she returned back, she noticed that all the accused persons including the Petitioner by force intruded into her house (quarter) and started to throw all the articles outside the quarter. On objection being raised by the Complainant, they threatened the Complainant to leave the place. Thereafter, Accused No. 1 pushed her whereby she fell down and received serious injuries. It was alleged against the Petitioner that he forcibly took her attache containing ornaments. Thereafter, all the accused persons returned back with aforesaid articles of the Complainant. The said complaint was filed on 11th September, 2001. After filing of the complaint, the Complainant was examined on S.A. and adduced four witnesses in support of her complaint. The learned Judicial Magistrate, 1st Class, Patna, by its order dated, 9th January, 2002, took cognizance of offence under Sections 323 and 380 of the Indian Penal Code and directed for summoning the accused persons which include the Petitioner.

3. Aggrieved with the order of cognizance, the Petitioner approached this Court by filing the present petition. On 13th December, 2002, while issuing notice to Opposite Party No. 2, this Court directed that in the meantime, further proceeding in Case No. 1749(C) of 2001 pending in the Court of Shri P.D. Gupta, Judicial Magistrate, Ist Class, Patna shall remain stayed. Subsequently, on 19th March, 2004, the case was admitted for hearing. At the time of admission, Opposite Party No. 2 had already entered her appearance. While admitting, it was further directed that during the pendency of the application, interim or