- (1.) THIS application has been filed for quashing of the entire criminal proceeding of P.C.R. Case No. 409 of 2001 including the order dated 30.8.2002 passed by the then Judicial Magistrate, 1st Class, Jamtara whereby and whereunder, cognizance of the offences punishable under Sections 342, 384 and 406 of Indian Penal Code has been taken against the petitioners.
(2.) BEFORE adverting to the submissions advanced on behalf of the parties, fact giving rise to filing of the complaint needs to be taken notice of. A complaint was filed by the complainant-opposite party no. 2 in the court of Chief Judicial Magistrate, Jamtara stating therein that he as well as his brother run a small fertilizer shop at Mihijam in a tenanted portion of building, belonging to Baidhnath Sarkar. One Tapan Mazumdar also runs a grocery shop in another shop situated in the same building. It has been alleged that on 10.11.2001 while the complainant and Tapan Mazumdar were present in their shops, the petitioners came with some electricians and police force and asked them as to why they are consuming electricity illegally after taking connection from one Uma Institute. Upon it, the complainant and Tapan Mazumdar told them that they along with the proprietor of Uma Institute have taken electric connection jointly in the name of Uma Institute for which expenses have been borne by all of them. They further told them that if the said act is illegal, they may take a separate connection but the petitioners ignored all these things and got the electric connection disconnected and then they forcibly took both, the complainant and Tapan Mazumdar, to Mihijam Police Station where the petitioners asked both of them to pay Rs. 16,000/- each for letting them off otherwise they will be booked in a case of electricity theft. Both, the complainant and Tapan Mazumdar, expressed their inability to meet illegal demand rather they told the petitioners that they are ready to pay the charges provided new connection is given in their names but the petitioners went on insisting to make payment of the aforesaid amount. After some time, the petitioners again asked both of them to pay Rs. 8,000/- each for their release. Ultimately, a sum of Rs. 16,000/- was paid and only then the complainant and Tapan Mazumdar were released by the petitioners at 7 p.m.
(3.) ON such complaint, case was registered as P.C.R. Case No. 409 of 2001 under Sections 342, 384 and 406 of Indian Penal Code against the petitioners. After the complainant's statement was recorded on solemn affirmation, the matter was fixed for inquiry. After holding inquiry, cognizance of the offences punishable under Sections 342, 384 and 406 of Indian Penal Code has been taken against the petitioners vide its order dated 30.8.2002 which is under challenge. Mr. Ughal, learned counsel appearing for the petitioners, submits that under the direction of the Sub Divisional Officer, Jamtara the petitioners along with the Magistrate as well as the police party proceeded to lay a raid for stoppage of electricity theft. During that course, they did find that the opposite party no. 2 and other persons, whose electric connection had already been disconnected on account of non-deposit of bills, were consuming electric energy illegally and, therefore, illegal connection was disconnected. Under these circumstances, whatever was done by the petitioners, it can be said to have been done in discharge of his public duty and thereby the petitioners by virtue of the provision as enshrined under Section 197 Cr.P.C. are protected from being prosecuted in absence of any sanction by the Competent Authority but the court below without having any sanction for prosecution by the Competent Authority took cognizance of the offence as alleged and hence it is quite illegal. As against this, Mr. Manoj Tandon, learned counsel for the opposite party no. 2, submits that by virtue of the provision as contained in Section 197 Cr.P.C., the public officer is protected from being prosecuted in absence of any sanction for prosecution by the Competent Authority provided the act of the accused, complained of, is in connection with discharge of official duty and that protection is provided to the public officer whose services are removable by the sanction of the Government but no such pleading is here in the instant case that the petitioners cannot be removed from their offences save and except with the sanction of the Government and hence in absence of such pleading the petitioners cannot take any advantage of the provision, as contained in Section 197 Cr.P.C.;