JUDGMENT :

JITENDRA KUMAR, J.

1. The present criminal miscellaneous petition has been preferred by the petitioner under Section 482 Cr.PC for setting aside the impugned order dated 23.08.2014 passed by learned S.D.J.M., Banka in Complaint Case No. C-711 of 2008, whereby learned S.D.J.M., Banka has issued summons against the petitioner holding that there is sufficient material to issue summons against him.

Factual Background

2. The Complaint Case bearing No. C-711 of 2008 has been filed by one Shyam Mandal against the petitioner and other four accused persons alleging that the Complainant/Shyam Mandal is a Clerk in Amapur Construction Limited whose Director/Chairman is Sahdeo Kanodia. The work of the said company is taken care of by Mr. Anand Kanodia who is son of Sahdeo Kanaudia. He does business by name of “Anand Traders” and even mobile has been taken in the name of Anand Traders. The company has several tractors to do its business.

3. It is further alleged that on 18.05.2008, stone/Moram was being transported from Laxmikant Singh, who is contractor of Mining Department. There was valid challan and the place of occurrence was outside the forest range. On the date of occurrence, the complainant was coming with a tractor with Moram/stone. The tractor was being driven by the driver. The co-accused, Mukesh Yadav and they were coming to the place of work situated at Chakkadih. When the complainant along with the tractor reached near village-Ramaniya, the accused persons, including the petitioner, intercepted the tractor and asked for the documents. All the relevant and valid documents were shown to them. But the accused-petitioner got the complainant and the driver down from the tractor and abused them and even assaulted them and also asked them that to send Rs.25,000/- from his owner, failing which he will have to bear heavy cost. It is also alleged that even one Reliance Mobile was taken from his pocket.

4. It further transpires that the complaint was filed on 20.05.2008 in the court of learned Chief Judicial Magistrate, Banka and the same was transferred to the Court of learned S.D.J.M., Banka vide order dated 29.05.2008 under Section 192 Cr.PC. In other words, deemed cognizance of offence was taken on 29.05.2008 when the complaint was transferred by learned C.J.M. to learned S.D.J.M. under Section 192 Cr.PC. After receipt of the complaint, learned S.D.J.M., conducted pre- summoning inquiry by examining the complainant and one witness, Ajay Kumar and vide the impugned order, issued summons against the petitioner finding sufficient material against him.

Submissions of the Parties

5. I heard learned counsel for the petitioner, learned APP for the State and learned counsel for the complainant.

6. Learned counsel for the petitioner submits that petitioner is innocent and has falsely been implicated in this case. He further submits that the petitioner was a Range Officer in the Forest Department and admittedly as per the compliant itself, the occurrence had taken place in course of discharge of his official duty by the petitioner and hence, no cognizance can be taken or summons can be issued against the petitioner, unless there is sanction obtained from the competent authority. But it transpires from the Trial Court Record that no sanction has been obtained by the complainant from any competent authority. Section 73 of the Indian Forest Act, 1927 clearly provides that all the Forest Officers shall be deemed to be Public Servant within the meaning of Indian Penal Code and as per Section 197 Cr.PC, any Court is debarred from taking cognizance of any offence except with previous sanction against the public servant. But no such sanction has been applied for by the complainant or granted by any competent authority. Hence, the whole proceeding is vitiated in which summons has been issued against the petitioner.

7. He also submits that the present complaint against the petitioner has been prompted by malafide. Just two days prior to the complaint l