Patna High Court
Md. Wakil Alam Ansari @ Mohd. Owkil Alam AnsariversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SOURENDRA PANDEY
Holding
The order of the Judicial Magistrate taking cognizance is quashed as the proceeding amounts to malicious prosecution.
Summary
The petitioner, Md. Wakil Alam Ansari, a junior engineer in the Electricity Department, was charged under IPC sections 323, 379, 504 and 506 for allegedly demanding a bribe, assaulting the complainant and stealing copper wires. He contended that the complaint was filed in retaliation for an FIR he had lodged against the complainant for electricity theft, amounting to Rs. 3,17,936. The petitioner argued that, being a public servant acting in the course of official duty, prosecution required prior sanction under Section 197 of the CrPC, which the magistrate failed to obtain. The court examined the Supreme Court’s guidelines in State of Haryana v. Bhajan Lal on malicious prosecution and identified the present case as fitting the category of proceedings instituted with a private grudge. Consequently, the magistrate’s cognizance was held to be erroneous and the complaint was quashed. The application for quashing the order was allowed.
Issues considered
- Whether the complaint constitutes malicious prosecution.
- Whether Section 197 of the CrPC mandates prior sanction for prosecution of a public servant acting in official capacity.
- Whether the magistrate erred in taking cognizance without such sanction.
- Whether the allegations prima facie disclose any cognizable offence.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 155(2), 156(1), 197
- Indian Penal Code — s. 323, 379, 504, 506
Subjects
- malicious prosecution
- Section 197 CrPC
- public servant
- abuse of process
- quash order
- IPC offences
- retaliation
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.16018 of 2025
Arising Out of PS. Case No.-240 Year-2023 Thana- SARAN COMPLAINT CASE District-
Saran
======================================================
Md. Wakil Alam Ansari @ Mohd. Owkil Alam Ansari Son of Md. Halim
Ansdari @ Md. Halim Resident of Moghalpura Kath Ka Pul, P.O.- Jhauganj,
Patna City, P.S.- Khajekala, Distt.- Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. Manorama Kumari Wife of Ranjit Kumar Rajak Resident of House No. 102-
C Mohalla Salempur, P.S.- Chapra Nagar, Distt.- Saran at Chapra
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Bhola Prasad, Advocate
Mr.Amarnath Singh, Advocate
Mr. Satya Prakash, Advocate
For the Opposite Party/s : Ms.Pushpa Sinha, APP
For the O.P. No. 2 : Mr. Satish Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL ORDER
4 10-02-2026 Heard the learned counsel for the parties.
2. The present application has been filed for quashing
the order dated 12.10.2023 passed by learned Judicial
Magistrate 1st Class Saran at Chapra in Complaint Case No.
240 of 2023, Enquiry No. 71 of 2023, CIS No. 240 of 2023,
whereby cognizance has been taken against him under
Section(s) 323, 379, 504 and 506 of the I.P.C.
3. The facts giving rise to the present application is to
the effect that the accused persons are the officials of the
Electricity department. The complainant has the electricity
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connection in the name of her husband. The allegation is that
the complainant wrote to the department for the increase in the
electricity bill and wrote several applications relating to the
correctness of the bill. It is further alleged that the officials
asked for a bribe of Rs.50,000/- for correction of Bills. On
27.02.2022 at about 3:00 P.M, the accused persons entered the
house and removed the meter and when the complainant
protested against the accused person, she was abused and
beaten, and the accused took two bundles of copper wire and
also broke things of the house.
4. Having heard the learned counsel for the
petitioner, learned APP for the State as well as the learned
counsel for the O.P. No.2, it is evident that the petitioner was
the official of the Electricity Department posted as Junior
Engineer at the relevant time. It is also evident from the records
that on account of electricity theft, an F.I.R was lodged against
the informant of the present case. It has been submitted that the
petitioner happens to be the informant of the said case in which
the theft of electricity was registered and an amount of Rs.
3,17,936/- was found to be due with the accused/informant of
the present case.
5. The contention of the learned counsel for the
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petitioner that the present case is an apt example of malicious
prosecution as it is evident that in retaliation to the said F.I.R.
lodged against the informant of the present case for electricity
theft, the present false and concocted case has been filed
against the petitioner and others, however, the police has
submitted final form against rest of the accused persons and
without appreciating the facts, has gone on to take cognizance
against the petitioner.
6. The further contention raised by the learned
counsel for the petitioner that the learned Magistrate has failed
to appreciate that the petitioner happens to be a government
servant and the allegations levelled are during the course of
performance of his official duty and therefore the provisions of
Section 197 of the CrPC would have attracted in the present
case and sanction was a must and despite such requirement, the
learned Magistrate has gone on to take cognizance.
7. In view of the aforesaid submissions, the present
case is squarely covered by the observations made by the
Hon'ble Supreme Court in the case of State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335.
8. The Hon’ble Supreme Court has observed in
paragraph no. 102 of the aforesaid judgment which reads as
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under:
“In the backdrop of the interpretation of
the various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted
and reproduced above, we have given the
following categories of cases by way of
illustration wherein such power could be exercised
either to prevent abuse of the process of any court
or otherwise to secure the ends of justice, though
it may not be possible to lay down any precise,
clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the
first information report or the complaint, even if
they are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code
except under an order of a Magistrate within the
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purview of Section 155(2) of the Code.
(3) Where the uncontroverted
allegations made in the FIR or complaint and the
evidence collected in support of the same do not
disclose the commission of any offence and make
out a case against the accused.
(4) Where, the allegations in the FIR do
not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the
FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where there
is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an
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ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.”
9. In view of the aforesaid, the present case falls
under the category of malicious prosecution initiated to wreak
vengeance against the petitioner.
10. Accordingly, the order dated 12.10.2023 passed
by learned Judicial Magistrate 1st Class Saran at Chapra in
Complaint Case No. 240 of 2023, Enquiry No. 71 of 2023, CIS
No. 240 of 2023 is quashed.
11. The present application stands allowed.
(Sourendra Pandey, J)
aditya/-
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