Patna High Court
Sandeep Kumar vs The State Of Bihar on 5 August, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.32582 of 2024
Arising Out of PS. Case No.-77 Year-2011 Thana- SALAKHUA District- Saharsa
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Sandeep Kumar son of Mahesh Prasad Resident of Village/Mohalla- G-110
PC Colony Kankarbagh, Patna, P.S.- Kankarbagh, District- Patna, Bihar-
820020
... ... Petitioner/s
Versus
1. The State of Bihar Patna
2. Hadisha Khatoon W/o Md. Mohdeem R/o Vill.- Laxminiya, P.S.- Salkhua,
District- Saharsa
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.Ravinder Kumar, Advocate
Mr.Munish Kumar, Advocate
For the Opposite Party/s : Ms.Anita Kumari, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
Date : 05-08-2025
Heard learned counsel for the petitioner, learned counsel
for the informant and learned APP for the State.
2. The present application has been filed for quashing of
the order dated 25.10.2016 passed by learned A.C.J.M. II, Saharsa
in connection with Salkhua P.S. Case No. 77/2011 corresponding
to G.R. No. 862/2011, whereby and whereunder the learned
ACJM-II, Saharsa has taken cognizance for the offences
punishable under Sections 420, 467, 468, 120B, 323, 354, 504/34
of I.P.C.
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Brief facts of the case
3. Initially, a complaint was filed which was forwarded
by the Ld. Court under U/S 156(3) Cr.PC, subsequently F.I.R was
registered. The informant purchased lands through deeds dated
15/12/2005
(Khata No-498, Khasra No-4303, area 2 Kattha; and
Khata No-298, Khasra No-4303, area 2-1/2 Kattha). Accused
persons forcefully took possession for constructing Kasturba
Madhya Vidhyalaya building. When the informant objected,
accused no.1 abused her, and the land was forcibly taken for the
construction of the school.
Submissions made on behalf of the petitioner
4. Learned counsel for the petitioner submits that the
incident allegedly occurred between 24/2/2008 to 13/7/2009, but
the F.I.R. was registered only on 4/6/2011 after an inordinate delay
of 3 years. During this period, the petitioner/accused person was
not even posted in the district and was transferred on 13/3/2009
when the school was under construction. Such unexplained delay
in lodging the F.I.R. raises serious questions about the genuineness
and credibility of the allegations, suggesting that the case has been
instituted with malafide intentions.
5. Learned counsel further submits that the petitioner is
completely innocent and has committed no offence whatsoever. He
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has been falsely implicated in this case purely due to dirty politics
and personal vendetta. The timing of the F.I.R. registration, long
after the alleged incident and after the petitioner’s transfer, clearly
indicates that this is a motivated case filed to settle personal scores
and harass the petitioner through abuse of the legal process.
6. Learned counsel further submits that upon perusal of
the F.I.R. and materials collected during investigation, it is evident
that no prima facie case is made out against the petitioner under
sections 402, 467, 468, 120(B), 323, 354, 504/34 of the Indian
Penal Code. The allegations are general, vague, and omnibus in
nature without any specific role attributed to the petitioner. The
charge-sheet dated 30.11.2015 bearing final report no.184/2015
fails to establish any concrete evidence against the petitioner,
making the continuation of proceedings a sheer abuse of the
process of law.
7. Learned counsel for the petitioner next submits that
the complaint case was initially filed in the Learned court below
and later sent by the Court of Magistrate to investigate under
Section 156(3) Cr.P.C. However, this was done illegally without
proper support of an affidavit of the complainant, which
constitutes a clear violation of law as established by the Hon’ble
Supreme Court in Priyanka Srivastava and Others vs State of
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Uttar Pradesh reported in (2015) 6 SCC 287. The Hon’ble
Supreme Court has categorically held that Section 156(3)
applications must be supported by a duly sworn affidavit to
prevent misuse of the provision and ensure responsible filing of
cases. The relevant part is quoted hereunder:-
“27. In our considered opinion, a stage has
come in this country where Section 156(3) Cr.P.C.
applications are to be supported by an affidavit
duly sworn by the applicant who seeks the
invocation of the jurisdiction of the Magistrate.
That apart, in an appropriate case, the learned
Magistrate would be well advised to verify the
truth and also can verify the veracity of the
allegations. This affidavit can make the applicant
more responsible. We are compelled to say so as
such kind of applications are being filed in a
routine manner without taking any responsibility
whatsoever only to harass certain persons. That
apart, it becomes more disturbing and alarming
when one tries to pick up people who are passing
orders under a statutory provision which can be
challenged under the framework of said Act or
under Article 226 of the Constitution of India……”
8. In light of the Hon’ble Supreme Court’s observations
in Priyanka Srivastava (supra) case and Anil Kumar v. M.K.
Aiyappa reported in (2013) 10 SCC 705, where the Court
emphasized the need for proper procedures and noted that cases in
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fiscal sphere, matrimonial disputes, commercial offences, medical
negligence cases and corruption cases with abnormal delays in
initiating prosecution are being filed routinely to harass
individuals. It has been submitted that this Hon’ble Court may be
pleased to quash the entire proceedings being devoid of merit and
constituting an abuse of the process of law. The continuation of
such proceedings would only result in harassment of an innocent
person and wastage of judicial time and resources.
9. Learned counsel next submits that as per the
principles laid down by the Hon’ble Supreme Court in Devinder
Singh vs. State of Punjab through CBI reported in (2016) 12
SCC 87 and subsequent judgments in N.K. Ganguly vs. C.B.I.
reported in 2016 (2) SCC 143 and A. Srinivasa Reddy vs. State
of Karnataka & Anr. reported in (2002) 3 SCC 397, protection of
sanction is an assurance to an honest and sincere officer to perform
his duty honestly and to the best of his ability to further public
duty.
10. Learned counsel further submits that the Hon’ble
High Court of Delhi vide order dated 29.07.2013 passed in Crl.
M.C. 1077/2012 (Rakesh Bhatnagar vs C.B.I.) has observed that
judgments of the Supreme Court have categorically laid down the
law in respect of sanction under Section 197 Cr.P.C. It is submitted
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that it is a settled law that before taking cognizance of any offence,
a Magistrate must not only be said to have applied his mind to the
contents of the petition, but he must have done so for the purpose
of proceeding in a particular way as indicated in the subsequent
provisions. When the Magistrate applies his mind not for the
purpose of proceeding under the subsequent sections but for taking
action like ordering investigation under Section 156(3), he cannot
be said to have taken cognizance of the offence. In the present
case, since the allegations against the petitioner is of offences
committed during discharge of his official duty and hence, it was
imperative for the learned court below to seek sanction prior to
taking cognizance of the offences against the petitioner. In the
present case, the learned court failed to consider these mandatory
legal requirements, thereby violating established judicial
precedents and rendering the entire proceedings legally infirm and
liable to be quashed.
Submissions made on behalf of the State
11. Learned A.P.P. for the State has submitted that the
complainant had made a categorical allegation against the
petitioner that he in connivance with the accused no. 1, i.e. Md.
Zafar had submitted a false inquiry report on the basis of the
forged documents and granted permission for the construction of
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the schools. It has been further submitted that the petitioner despite
being asked for information under the R.T.I. never supplied the
same and thereby he had been helping the main accused and got
the construction of the school done forcefully after illegally
dispossessing the informant.
12. Learned A.P.P. for the State has further submitted
that even during the course of investigation the police had found
that the petitioner who was the then Block Development Officer
had not taken due steps pursuant to the complaint made by the
informant and hence, was found to be in connivance with the main
accused and therefore, charge-sheet was submitted by the police in
the year 2015 and after perusing the same along with the materials
on record the learned court below has rightly taken cognizance
against the petitioner and others and therefore, no interference is
required in the present matter.
13. Learned A.P.P. for the State on the point of sanction
has stated that the conduct of the petitioner and the allegations
against him does not fall within the parameters of “discharge of his
duty” and hence, there was no occasion to take sanction as
prescribed under Section 197 Cr.P.C. Learned A.P.P. for the State
has stated that various case laws referred to by the learned counsel
for the petitioner would not be applicable in the present facts and
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circumstances of the case as there is a private complaint against
the petitioner of conniving with the main accused and helping him
by illegal means and therefore, there was no requirement of
sanction in the present case.
14. Learned A.P.P. for the State has, thus submitted that
in view of the aforesaid the present application is completely
misconceived and fit to be dismissed and there is no illegality in
the order taking cognizance.
Consideration
15. Having heard the parties and upon perusal of the
materials available, this Court would like to go on the point of
sanction to ascertain as to whether the sanction was required to be
taken under Section 197 Cr.P.C.. From perusal of the FIR, it would
be evident that the complainant has alleged that a report has been
prepared by the petitioner based on forged documents which prima
facie comes out to the fact that the petitioner being the Block
Development Officer was submitting a report while discharging
his duty as the B.D.O. and not otherwise. Even if the allegations
are taken on its face value, even then the submission of an inquiry
report , may be on a forged document, the same would fall under
the acts committed while discharge of official duty thus, even if
the allegations are taken to be true the provisions with regard to
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previous sanction as mentioned under Section 197 Cr.P.C. needed
to be followed and since the petitioner was a serving B.D.O.,
therefore, it was mandatory to get sanction from the government
before taking cognizance. At this juncture, this Court would like to
refer to Paragraph ’39’ of the judgment passed in the case of
Devinder Singh (supra) wherein the Hon’ble Supreme Court has
summarized the opportunities emerging from all the decisions on
the point of sanction and is summarized as under :-
“39. The principles emerging from the aforesaid
decisions are summarised hereunder:
39.1. Protection of sanction is an assurance to an
honest and sincere officer to perform his duty honestly
and to the best of his ability to further public duty.
However, authority cannot be camouflaged to commit
crime.
39.2. Once act or omission has been found to have
been committed by public servant in discharging his duty
it must be given liberal and wide construction so far its
official nature is concerned. Public servant is not entitled
to indulge in criminal activities. To that extent Section
197 CrPC has to be construed narrowly and in a
restricted manner.
39.3. Even in facts of a case when public servant
has exceeded in his duty, if there is reasonable
connection it will not deprive him of protection under
Section 197 CrPC. There cannot be a universal rule to
determine whether there is reasonable nexus between
the act done and official duty nor is it possible to lay
down such rule
39.4. In case the assault made is intrinsically
connected with or related to performance of official
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duties, sanction would be necessary under Section 197
CrPC, but such relation to duty should not be pretended
or fanciful claim. The offence must be directly and
reasonably connected with official duty to require
sanction. It is no part of official duty to commit offence.
In case offence was incomplete without proving, the
official act, ordinarily the provisions of Section 197 CrPC
would apply.”
16. The Hon’ble Supreme Court in Criminal Appeal No.
257/2011 in the case of General Officer, Commanding versus
C.B.I. has opined as follows:-
” Thus, in view of the above, the law
on the issue of sanction can be summarized
to the effect that the question of sanction is
of paramount importance for protecting a
public servant who has acted in good faith
while performing his duty. In order that the
public servant may not be unnecessarily
harassed on a complaint of an
unscrupulous person, it is obligatory on
the part of the executive authority to
protect him….. If the law requires sanction,
and the court proceeds against a public
servant without sanction, the public
servant has a right to raise the issue of
jurisdiction as the entire action may be
rendered void ab-initio.””
17. Thus, from the aforesaid discussions and the
opportunities emerging, it is clear that the learned court below
prior to taking cognizance had to obtain previous sanction from the
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appropriate government under Section 197 Cr.P.C. especially when
it is found that the alleged offence has been committed in
discharge of official duty by the accused like in the present case
the petitioner was posted as the B.D.O. and he had submitted a
report by virtue of him being the B.D.O.
18. The other pertinent question which has been raised
was with regard to the provisions as contained under Section
156(3) Cr.P.C. wherein it was mandatory for the complainant to
support the complaint with an affidavit. It is an admitted fact that
the present case arises from a complaint case which was
specifically sent to the police to investigate under the provisions of
Section 156(3) of the Cr.P.C. but the said complaint was filed
without support of any affidavit of the complainant which was
ultimately sent to the police for investigation and for registration
of FIR and the same is in the teeth of the judgment passed by the
Hon’ble Supreme Court in the case of Priyanka Srivastava
(supra).
19. This Court would like to refer to the judgment
passed in the case of Anil Kumar (supra) wherein in Paragraph
‘8’ of the judgment the Hon’ble Supreme Court has observed as
under:-
” We may first examine whether the
Magistrate, while exercising his powers under
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mechanical or casual manner and go on with
the complaint after getting the report. The scope
of the above mentioned provision came up for
consideration before this Court in several cases.
This Court in Maksud Saiyed case (supra)
examined the requirement of the application of
mind by the Magistrate before exercising
jurisdiction under Section 156(3) and held that
where a jurisdiction is exercised on a complaint
filed in terms of Section 156(3) or Section 200
Cr.P.C., the Magistrate is required to apply his
mind, in such a case, the Special
Judge/Magistrate cannot refer the matter under
Section 156(3) against a public servant without
a valid sanction order. The application of mind
by the Magistrate should be reflected in the
order. The mere statement that he has gone
through the complaint, documents and heard the
complainant, as such, as reflected in the order,
will not be sufficient. After going through the
complaint, documents and hearing the
complainant, what weighed with the Magistrate
to order investigation under Section 156(3)
Cr.P.C., should be reflected in the order, though
a detailed expression of his views is neither
required nor warranted. We have already
extracted the order passed by the learned
Special Judge which, in our view, has stated no
reasons for ordering investigation.”
20. From the judgments referred to above and the
principles laid down by the Hon’ble Supreme Court the same
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squarely applies to the facts of the present case as have already
been discussed hereinabove and therefore, in the opinion of this
Court the order dated 25.10.2016 passed by the learned A.C.J.M.-
II, Saharsa whereby cognizance has been taken against the
petitioner is not tenable in law and fit to be set aside.
21. In view of the aforesaid, this application is allowed
and order taking cognizance dated 25.10.2016 passed by learned
A.C.J.M.-II, Saharsa in the connection with Salkhua P.S. Case No.
77/2011 corresponding to G.R. No. 862/2011 is set aside.
(Sourendra Pandey, J)
tusharika/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 25.08.2025 Transmission Date 25.08.2025
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