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CASE NO.:

Appeal (crl.) 12 of 2006

PETITIONER:

Rakesh Kumar Mishra

RESPONDENT:

State of Bihar and Ors.

DATE OF JUDGMENT: 03/01/2006

BENCH:

Arijit Pasayat & G.P. Mathur

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J.

Leave granted.

Appellant calls in question legality of the judgment rendered by a learned

Single judge of the Patna High Court dismissing the petition filed by the

appellant under Section 482 of the Code of Criminal Procedure, 1973 (in

short the ‘Code’) seeking quashing of the order of cognizance taken by

learned Judicial Magistrate, Patna, on a complaint filed by Ramesh Kumar

Dubey (Respondent No. 2 in this Appeal). By order dated 11.1.2000 learned

Judicial Magistrate took cognizance of offences punishable under Sections

342, 389, 469, 471 and 120(B) of the Indian Penal Code, 1860 (in short the

‘IPC’). Learned Chief Judicial Magistrate, Patna had transferred the case

on 18.1.1997 to the learned Magistrate for enquiry and disposal and that is

how the matter was placed before learned Judicial Magistrate, First Class.

Primary stand taken by the appellant before the High Court was that in the

absence of sanction as contemplated under Section 197 of the Code, the

proceeding cannot be continued. The High Court by the impugned judgment

rejected the prayer holding that since the requirement of Section 100(4) of

the Code were not followed, while search was conducted in the respondent

No.2’s premises the provisions of Section 197 of the Code were not

applicable.

Learned counsel for the appellant submitted that without noticing relevant

factual background the High Court has held that the protection under

Section 197 of the Code were not available. According to him a report about

the commission of dacoity on 8/9-7-1996 was received and Jasidih PS Case

No. 103 of 1997 was registered in respect of commission of offence

punishable under Section 395 of the IPC. The Special Report in respect of

the case was 250 of 1996. Supervision of the case was being done by the

appellant. Source information was received about the involvement of certain

persons, one of whom was Ratnesh Kumar Dubey - alias Chhotu, son of

respondent No.2. On the basis of such information the appellant gave spot

instruction to arrest the suspects and conduct search. Search was to be

conducted in the house of respondent no.2. Three Sub-Inspectors were

deputed for the purpose and the investigating officer of the case was

directed to continue investigation on other lines. On 11.7.1996 the team

constituted for the purpose of search requested the police officials of

Shastri Nagar Police Station in Patna for cooperation. A requisition slip

for the purpose was given. The team of three sub-inspectors and local

police officials visited the house of respondent no.2 on 11.7.19992 for the

purpose of search and to arrest Ratnesh, if necessary. Elder son of

Respondent no. 2 told the police officials that Ratnesh had gone to Delhi

and was not present. Though search was conducted no material of any

substance was seized. Alleging that the search was motivated and was for

the purpose of humiliating and harassing, as the concerned officials did

not have a search warrant, the respondent no.2 and his son Chhotu,

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complaint was filed on 26.11.1996 in the Court of Chief Judicial

Magistrate, Patna. Subsequently, as noted above, the appellant filed the

application under Section 482 of the Code which came to be dismissed by the

impugned judgment. It was submitted by learned counsel for the appellant

that the factual scenario clearly proves the bonafides and in view of the

fact that all possible procedure were taken to follow the mandate of law,

Section 197 of the Code is clearly applicable. It is submitted that the

High Court made reference only to the Section 100 of the Code, overlooking

the powers available to be exercised under Sections 41, 165 and 166 of the

Code and Rule 165 of t