Sanction under Section 197 Cr.P.C. is essential for prosecuting public servants; proceedings lacking it are invalid.

06/23.03.2021.

Heard Mr. P.P.N. Roy, learned Senior counsel for the petitioner, Mr. Shailesh Kumar Sinha, learned A.P.P. appearing for the opposite party- State and Mr. Amarendra Kumar, learned counsel for opposite party no.2.

2. This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

3. The petitioner has filed this quashing application for quashing the order taking cognizance dated 07.09.2010 passed by the learned Chief Judicial Magistrate, Kodarma in Complaint Case No.327 of 2009, whereby, the learned Chief Judicial Magistrate has taken cognizance of the offence under Sections 304-A of the Indian Penal Code against the petitioner.

4. The lodging of the said complaint case was on the facts that the contractor Suresh Prasad Yadav had taken contract work for construction of one drain on the road near Shitla Mata Mandir at Devi Mandap Road and it has been alleged in the complaint case that it was responsibility of all the accused persons to look after the work of the drainage. It has been alleged in the complaint case that accused Suresh Prasad Yadav with the consent of all the accused persons had cut road and after digging on the middle road, the accused persons had not made any arrangement of security nor any barrier was made on the road. It has also been alleged in the complaint case that there was no arrangement of light near that place and entire responsibility of the security was on the accused persons. It has also been alleged in the complaint case that in the night on 03.06.2009, the father of the complainant Arjun Prasad Kapsime was going on a cycle to attend marriage ceremony by that road and he fell down on that pit, which was dug by the accused persons, due to which the father of the complainant sustained injury on his head and he died at that place. At the relevant time, the petitioner was Special Officer of Jhumri Telaiya Municipality. In the complaint case, the learned court below has taken cognizance under Section 304-A I.P.C. against the petitioner and three other accused persons vide order dated 07.09.2010. Aggrieved with this, the petitioner has filed this quashing application.

5. Mr. P.P.N. Roy, learned Senior counsel appearing for the petitioner assailed the cognizance order dated 07.09.2010 on the ground that in the entire order, there is no discussion about the petitioner as to how the petitioner has been implicated by the complainant. He further submits that none of the witnesses, who have stated nothing about the petitioner, were examined by the learned court below before taking cognizance. He also submits that the petitioner is a Government servant and he is protected under Section 197 Cr.P.C. To buttress his argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case ofState ofOrissa and Others v. Ganesh Chandra Jew, reported inAIR 2004 SC 2179

6. Paragraphs 10, 11 and 12 of the said judgment are quoted herein below:

“10.In Padala Veera Reddy v. State of A. P. and others (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendenc