1. This petition under section 482 of the Code of Criminal Procedure [for short “the Code”] has been filed against the order dated 5.9.2012 passed by JMFC, Khategaon, District Dewas in Criminal Case No.492/2012; whereby taking the cognizance against the applicants and Non-applicant No.2 for the offence under section 406 of IPC and issued summons against them.

2. Brief facts of this case are that on 11.9.2011 B. R.Yadav, Station House Officer and R. R. Katara, Assistant Sub Inspector, Police Station, Satwas (Non-applicants No.1 and 2 herein) have seized 118 calves from possession of Non-applicant No.1 – Goma and his 3 companions in connection with offence under section 8 of M. P. Govansh Vadh Pratishedh Adhiniyam. They and Kamdhenu Gaushala, Satwas have filed the applications for interim custody of the calves. The learned Magistrate rejected the application of Non-applicant No.1; whereas allowed the application filed by Kamdhenu Gaushala. Hence, Non-applicant No.2 - Vice President of Gaushala executed the bond and obtained 118 calves on interim custody. Thereafter Non-applicant No.1 has challenged the order before ASJ, Kannod in Criminal Revision No.118/2011 which was allowed vide order dated 3.10.2011. Before the revisional Court, it was reported that out of 118 calves, 18 calves have already been died. Non-applicant No.1 has furnished the Supurdiginama and the surety bond but only 58 calves were handed over to him and it was reported that rest of the calves have already been died. In support false post-mortem reports were filed. Thereafter, Non-applicant No.1 has filed a private complaint against the applicants, who are Veterinary Surgeon; Station House Officer and Assistant Sub Inspector, Police Station Satwas respectively. Learned Magistrate after inquiry has taken the cognizance against the applicants and Non-applicant No.2 for the offence under section 406 of IPC. Being aggrieved, the applicants have filed this petition.

3. Learned counsel for the applicants submits that from the facts it reveal that the offence of breach of trust has been committed with the Court, therefore, only the Court can file the complaint after following the procedure provided under section 340 of the Code. Hence, the complaint filed by Non-applicant No.1 is not maintainable. Besides this, the applicants are public servants and the alleged offence has been committed in discharging of their official duty. Hence, the Magistrate cannot taken cognizance without sanction under section 197 of the Code. For this purpose, placed reliance on the judgment of Hon'ble apex Court in the case of Anil Kumar and others v. M.K.Aiyappa and another [(2013)10 SCC 705]. Therefore, it is submitted that the impugned order of taking cognizance be set aside.

4. Nobody gave appearance on behalf of Non-applicant No.1. Learned counsel for the Non-applicant No.2 supports the arguments of learned counsel for the applicants; whereas learned Government Advocate for the Non-applicant No.3/State supports the impugned order and submits that the applicants are not entitled for protection under section 197 of the Code. Thus, no interference is called for by this Court.

5. After hearing learned counsel for the parties, perused the record.

6. Firstly, I have considered the objection in regard to non-compliance of the procedure provided under section 340 of the Code.

7. Section 340 of the Code provides that when the Court is of opinion that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195 of the Code, which, appears to have been committed in or in relation to the Court proceedings, then after preliminary inquiry Court may make a complaint in writing. In clause (b) of sub-section (1) of section 195 of the Code the offences are specified. However, offence under section 406 of IPC is not included in the aforesaid offences. Therefore, non-compliance of the procedure provided under section 340 of the Code is no bar in filing private compla