LexSTATE OF BIHAR versus KAMLA PRASAD SINGH AND ORS.
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STATE OF B!HAR A ,.I_ v. KAMLA PRASAD SINGH AND ORS. MAY6, 1998 • [G.T. NANA VAT! AND S.P. KURDUKAR, JJ.] B ' Code of Criminal Procedure, 1973 : Sections 190, 197 and 202-Prosecution of police officials-Cognizance of offence by Magistrate-Requirement of sanction of Government- c Magistrate, after inquiry uls 202, coming to conclusion that police officials appeared to have acted while discharging or purporting to discharge their duty-Held no cognizance of alleged offences could be taken without a proper sanction by the Government. A complaint was filled by respondent No. 1 in the Court of Chief D b.. Judicial Magistrate, Patna alleging that a police party comprising respondents no. 2 to 4 raided his house without any warrant of search and assaulted his wife, abused her and other persons present in the house and took away certain articles belonging to him. The Magistrate, after holding an inquiry under s. 202 of the Code of Criminal Procedure, 1973 found that the raid E was carried out by the three police officials under the supervision of an Executive Magistrate and since the acts alleged appeared to have been committed by respondents 2 to 4 while discharging their official duty, no cognizance of the offences could be taken in absence of sanction under s. 197 of the Code. On a revision petition filed by respondent no. 1, the High Court held that no sanction under s. 197 of the Code was required, and F ,_ directed the Magistrate to hold further inquiry. Consequently, the Magistrate .. took cognizance of the offences and directed issuance of process against respondents no. 2 to 4. The State challenged the order of the High Court in the present appeal. It was contended for the State that the High Court erred in holding G that the Magistrate was required to consider only the allegations made in the complaint and no other material, and that the evidence collected during the inquiry under s. 102 Cr. P.C. supported that allegations made in the complaint. Allowing the appeal, this Court H 201 202 SUPREME COURT REPORTS [1998] 3 S.C.R. A HELD : I. I. No cognizance of offences alleged to have been committed by respondents 2 to 4 could be taken without a proper sanction of the Government, as the search was made by them after obtaining a proper warrant, and there is no credible material to show that they had either abused or assaulted the wife of the complainant or any other persons or B misappropriated any article belonging to the complainant. What they had done appears to have been done while discharging or purporting to discharge their duty. (205-F-GJ 1.2. The High Court while recording the finding that the version of the occurrence stated in the complaint has been supported by the prosecution C witnesses does not appear to have gone through the evidence of those witnesses. The order of the Magistrate does not contain anything which can support the finding recorded by the High Court. On the contrary the Magistrate has observed that there is no evidence to show that the wife of the complainant was assaulted or abused by anyone of the respondent 2 to D 4. (205-B-C( J .3. The High Court was clearly wrong in holding that the Magistrate should have considered only the allegations made in the complaint to find out whether the alleged acts were committed by respondents 2 to 4 while discharging or purporting to discharge their duties. The High Court failed E to appreciate that the material collected during the inquiry discloses that material facts were suppressed by the complainant and some of the allegations made in the complaint were not correct. (204-G-H; 205-A-D-EJ 1.4. During the inquiry under s. 202 Cr. P.C. it had come on record that an offence was registered against the complainant and respondent no. F 2 had obtained a warrant for the arrest of the complainant and search of his premises. The raid was carried out under the supervision of an Executive Magistrate. Proper lists regarding search and seizure were made and copies there of given to the brother-in-law of the complainant No complaint of any type was made by anyone to the Executive Magistrate supervising the acts G of respondents 2 to 4. All this evidence could not have been ignored by the Magistrate while considering the allegations made in the complaint. (204-F-HJ CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 769 of 1989. H From the Judgment and Order dated 23.4.87 of the Patna
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