- (1.) THE petitioner, by way of filing the present petition under Section 482 of the Code of Criminal Procedure has prayed for quashing the entire criminal proceeding as initiated against him including order dated 5.12.2008, passed by learned Judicial Magistrate, 1st Class, Madhupur at Deoghar in PCR No. 387/2007 (Tr. No. 1211/2008) whereby, the learned court -below has taken cognizance for the offence punishable under Section 504 of the Indian Penal Code read with Sections 3(i) and 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
(2.) THE short facts giving rise to the present petition are as under: The petitioner was posted as District Superintendent of Education -cum -District Program Officer, Deoghar and the complainant was posted as Cook in Kasturba Gandhi Residential School Madhupur in the district of Deoghar, which is under the administrative control of the petitioner, who happens to be the head of primary education in a district. Because of the complaint against the complainant by the girl students and their guardian, which was very serious in nature, the petitioner being the administrative head, took action against the complainant and finally, the complainant was terminated from service. The impugned complaint was lodged by the complainant against the petitioner to wreck up his vengeance. Learned court -below was pleased to take cognizance against the petitioner for the offence under Section 504 of the Indian Penal Code and also under Sections 3(i) and 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Petitioner has, therefore, challenged the entire criminal proceeding including the order taking cognizance dated 5.12.2008 by way of filing the present petition.
(3.) LEARNED counsel for the petitioner submitted that the petitioner is an innocent person and has not committed any offence as alleged against him. However, he has been falsely implicated in this case only with a view to cause harassment. It is further submitted that petitioner is a Government Official. In fact, there was a complaint received against the opposite party No.2 (original complainant) and departmental actions were also initiated on the ground of his behaviour and therefore, as a counter attack, the impugned complaint has been filed against this petitioner. Learned counsel for the petitioner, while referring the documents annexed to this petition, pointed out that the date of alleged incident is 12.8.2007 whereas, the date of complaint is 26.9.2007. Therefore, the impugned complaint has been filed after the delay of 44 days from the date of the alleged occurrence only with a view to harass the present petitioner, who is a Government Official and has acted in good faith in the interest of administration. Learned counsel for the petitioner further submitted that the present petitioner, being a Government Official, cannot be prosecuted without prior sanction as required under Section 197(1) of the Code of Criminal Procedure. The petitioner being Government officer is having protection under Section 197(1) of the Code of Criminal Procedure. It is submitted that in the instant case no prior sanction as required under Section 197(1) of the Code of Criminal Procedure has been obtained and therefore, on this ground, order passed by the learned Judicial Magistrate deserves to be quashed and set aside. Learned counsel for the petitioner, while referring various annexures, pointed out that present petitioner received complaint against the informant/complainant by the girls of Kasturba Gandhi Residential School Madhupur. In this context, the learned counsel for the petitioner has also referred the show -cause notice and the explanation given by the complainant and a departmental proceeding initiated against the opposite party No.2 (original complainant). It is further submitted that opposite party No.2 was terminated from services vide order dated 21.2.2008 after holding regular departmental inquiry. Learned counsel for the petitioner in support of his submission has cited the decision of the Apex Court in the case of State of Haryana and others versus Bhajan Lal and others, 1992 Supp1 SCC 335. According to the learned counsel for the petitioner, petitioner's case is covered within the criteria/ parameter indicated in clause -(7) of paragraph 102 of the said judgment, wherein, it is observed that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him to private and personal grudge. Learned counsel for the petitioner also cited another case law in support of his submission in the case of Sankaran Moitra versus Sadhna Das and another, 2006 4 SCC 584. While referring paragraph Nos. 11, 22, 23 and 25 of the said judgment, it is submitted that previous sanction as required under Section 197(1) of the Code of Criminal Procedure has not been obtained in the instant case. Therefore, the petitioner's case is squarely covered by the said decision. Learned counsel for the petitioner has also referred to and relied upon the judgments Vijay Pratap Singh V. State of Jharkhand, 2011 2 JLJR 455 and Manoranjan Prasad Sinha V. State of Jharkhand, 2011 2 JLJR 469. It is further submitted that the present petitioner has acted in good faith while discharging his official duty and therefore, ratio laid down in the above referred two decisions is also applicable in the facts and circumstances of the the present case. Learned counsel for the petitioner in support of his submission has also referred to and relied upon order dated 3.8.2011 passed by this Court in Cr.M.P. No. 1418 of 2007 and submitted that this Court has taken a view that as per provisions contained in Section 197(1) of the Code of Criminal Procedure, no Court can take cognizance against the petitioner without previous sanction of the State Government. It is submitted that petitioner's case is also squarely covered by the said decision.;