R.R.PRASAD, J. - (1.) THIS application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 9.3.2006 passed by Chief Judicial Magistrate, Koderma whereby and where under cognizance of the offence under Sections 420 and 408 of the Indian Penal Code has been taken against the petitioner and others.
(2.) BEFORE adverting to the submissions made on behalf of the parties the fact giving rise this application needs to be notice of. It appears that opposite party No. 2 lodged a complaint alleging therein that when he came to know that a scheme for construction of Morang/soil road from village Jamkati to Pogdanda has been sanctioned, he met petitioner posted as Block Development Officer, Chandwara Block who asked him to meet with the Head Clerk Girja Prasad and the Assistant, Jitendra Kumar and thereupon when he met with those two persons, they asked for money in lieu of appointing him as an agent for execution of the said scheme and thereupon the complainant managed Rs. 30,000/ - which was given to be said Girja Prasad and Jitendra Kumar in presence of two witnesses and then two persons advised the complaint to get an agent nominated for executing the said scheme in the Gram Sabha but due to some unavoidable reason, none could be nominated in the meeting of the Gram Sabha and then they asked for money from the accused persons but the accused persons not only refused to return the money but also abused them. On filing the complaint, statement was taken of the complainant on solemn affirmation and then statement of witnesses were also recorded in course of enquiry. Thereupon cognizance of the offences was taken by the impugned order. Being aggrieved with that, the petitioner has preferred this application. Learned Counsel appearing for the petitioner submits that this petitioner, who was posted at the relevant (Sic) time as Block Development Officer, Chandwara has never been alleged to have demanded money in lieu of appointing the complainant as an agent for executing the scheme, rather the petitioner has been said to have asked the complainant to go before the Head Clerk and the Clerk when the complainant asked about the scheme and if the other accused allegedly made any demand or accepted anything in lieu of giving any benefit to the complainant, the petitioner cannot be held responsible for that end that under the procedure of appointing an agent for executing a scheme, allegation levelled against the accused persons seems to be baseless as according to the procedure a general meeting of the Gram Sabha is convened for selecting the beneficiary committee for executing the scheme and the beneficiary committee does decide the person, who is to execute the work and under this situation, putting demand of money by the Head Clerk or the Clerk of the Block seems to be quite unnatural as they are not supposed under the scheme to appoint any agent. Learned Counsel by putting more emphasis on the averment made in the complaint as well as statement made by the witnesses during enquiry submits that there has been absolutely no allegation against this petitioner so as to constitute any offence either under Section 420 or under Section 408 of the Indian Penal Code. Learned Counsel also submits that petitioner being a Government official has got statutory protection under Section 197 of the Indian Penal Code and hence sanction was required to be accorded by the competent authority before cognizance of the offence alleged is taken against the petitioner.
(3.) AS against this, learned Counsel appearing for the opposite party No. 2 submits that offence alleged is never part of the duty and hence petitioner cannot be said to have done the alleged act in discharging his official duty and therefore, no sanction in terms of Section 197 is required to be accorded before launching the prosecution against the petitioner and that allegation made in the complaint as well as statement made by the complainant in his solemn affirmation and also the statement made by the witnesses in course of enquiry do constitute the offence under which cognizance has been taken.;