Point of Law: If the accused charged has the connection with discharge of his duty, then it must be held to be official, to which the applicability of Section 197 cannot be disputed and trial cannot proceed without sanction.

JUDGMENT :

Heard Mr. N.N.B. Choudhury, learned counsel appearing for the petitioner as well as Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State/respondent No.1.

2. The petitioner herein, is assailing the legality and validity of the order dated 17.06.2017, passed by the learned SDJM (Sadar), Barpeta, in G R Case No. 918/2018 (earlier CR Case No. 5631/2014), whereby cognizance has been taken against the petitioner under Section 319 CrPC, without obtaining sanction from the competent authority.

3. The respondent No. 3, Lok Narayan Giri, filed a complaint before the Court of learned CJM, Barpeta, on 03.05.2014, against the present petitioner (as accused No. 4) and three others, namely, Kalidas, Ali Mia and Robin Das, alleging that on 28.04.2014, at about 03:30 pm, accused Nos. 1, 2 and 3, entered into the courtyard of the complainant and by way of threatening, he was forcefully taken to the Labdanguri PP, wherein the accused No. 4 (petitioner, herein) slapped the complainant at his right ear and also assaulted him with a lathi, as a result of which, he sustained grievous injuries on his person and lost his hearing capacity. The accused persons took the signature of the complainant in blank paper and also by way of threatening, had taken Rs. 1000/- from him and thereafter, he was released at about 12:30 am. The complainant was treated at Barpeta Civil Hospital for the injuries he sustained and on 03.05.2014, he filed the complaint. The above complaint was forwarded to the Court of learned JMFC, Barpeta, for disposal and the learned Magistrate forwarded the same to the Gobardhana Police Station, which was registered as Gobardhaha PS Case No. 179/2014 under Sections 447/120(B)/325/384/ 506/34 IPC. On completion of the investigation, the I/O submitted charge sheet against the accused Nos. 1, 2 and 3 and finding no evidence against the accused No. 4 (petitioner herein) he was not sent up for trial and prayed to discharge him from trial.

4. On the basis of the charge sheet, the learned Magistrate took cognizance of the offence against the said charge sheeted accused and during the trial, after examination of the complainant as PW-1, who implicated the accused petitioner with the offence alleged, took cognizance under Section 319 CrPC and issued summons to him to face the trial as accused, along with the other accused persons. However, as the petitioner was transferred to other district, so, the summons of the case could not be served and after service of notice, he could not appear before the Court and sought for time.

5. Challenging the aforesaid order of taking cognizance, the petitioner is before this Court with the present petition under Section 482 CrPC, contending that the order of taking cognizance is bad in law, inasmuch, as the learned trial Court, has not complied with the mandatory provision of Section 197 (3) of CrPC. The petitioner contends that due to non-compliance of mandatory provision, the impugned order as well as the entire proceeding against the petitioner is liable to be quashed and set aside.

6. According to the petitioner, while he was posted as In-charge, Labdanguri PP, under Gobardhan Police Station, District-Baksa, he received a written information from one Robin Rajbongshi, alleging that the complainant (respondent No. 3 of this case), who was the tenant under Robin Rajbongshi for 12 bighas of land in the name of Robin Rajbongshi’s father, did not pay the rent in respect of said lease as well as mortgaged 2 bighas of land out of 12 bighas to one Ali Hussain. Robin Rajbongshi, after taking back possession of 10 bighas of land from the respondent No. 3, leased out one Kali Das and then the said Robin Rajbongshi went to the house of Respondent No. 3 with four other persons in order to recover the 2 bighas of land mortgaged to Ali Hussain, but they were misbehaved. Accordingly, the said information was entered vide Labdanguri PP GDE No. 241 dated 19.03.2014 (Annexure-1). The petitioner aft