This is an application for quashing the order dated 19.9.2007 passed by Additional Sessions Judge, F.T.C. IV, Munger in Cr. Revision no. 296/2005 and the order dated 4.2.2008 passed by Chief Judicial Magistrate, Munger in Complaint Case No. 815C/2004 by which cognizance has been taken against the petitioners under sections 323 and 504 of the Indian Penal Code.

2. Heard counsel for the parties.

3. Initially Complaint Case No. 815 of 2004 filed on behalf of opposite party no.2 against petitioners making allegations in brief that on 19.8.2004 at about 5.30 AM, petitioners came to the house of opposite party no.2, asked whereabouts of one Pramod and entered forcibly into his house, assaulted the complainant by means of Danda, kick and fist. His wife was also assaulted and misbehaved. His sister-in-law (Bhabhi) was abused and Rs.2000/- was snatched. After examination of complainant and his witnesses, cognizance was taken, complaint petition was dismissed which was questioned by filing Criminal Revision no. 296/05 which was allowed and the case was remanded for further enquiry. Now cognizance for the offence under sections 323 and 504 IPC has been taken against petitioners by order dated 4.2.2008 by Chief Judicial Magistrate, Munger.

4. Apart from the facts and circumstances of the case, legality of cognizance order dated 4.2.2008 is questioned on the ground of having no sanction order in the case. Section 197 of the Cr.P.C. provides for sanctions which runs as follows:

“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 official 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.

… … … … … … … … … …

5. So, it is clear that sanction is necessary when the person is 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 official duty only.

6. Petitioners are public servants falling under the above condition is not under dispute. Their act is only under dispute if was acted or purported to act in the discharge of their official duty or not. Allegation in the complaint petition is clear that the same was not in discharge of official duty. Different decisions of this Court as well as of the Apex Court reported in 2006(4)PLJR 98, 2004(2)PLJR 699 and 2002(4)PLJR 74 (Supreme Court) are referred. They are to be scrutinized, if the allegation remained constant in course of examination of complainant and his witnesses on S.A. in course of enquiry.

7. Complaint on this point is that all the petitioners came to complainant’s house, asked about whereabouts of Promod and on refusal to give any information he was assaulted and his wife and sister-in-law were assaulted. Rs. 2000/- was snatched from his pocket, same is corroborated by Rani Devi, Parmanand Sao, Chandra Sekhar Sao, Ram Kumar Sao and Gayetri Devi. I find the learned Magistrate was vigilant enough to make some queries from the witnesses in which complainant stated that Pramod was his relation and he was not aware of the fact that there was any case pending against Pramod but that is not corroborated by other witnesses in Court question. Rani Devi in that connection states about coming of petitioners to Pramod’s house and his father was a