M. Wahajuddin, J.
1. The petitioner has come forward with a prayer that the proceeding in Criminal Complaint Case No. 541 of 1979 under Section 120B/342 I.P.C. pending in the Court of the Chief Judicial Magistrate, Ballia be quashed.
2. It is maintained that apart from the fact that the matter of release from Jail, etc., of any prisoner is handled by the Jailor and not by Superintendent of Jail who is the petitioner, cognizance of the complaint and the offence would not be taken in view of the bars provided by Sections 196 and 197, Cr. P.C. For a proper decision it would be necessary to see the complaint itself to ascertain whether the allegations are such as would attract the provisions contained in Sec-lions 196 and 197, Cr. P.C. A copy of the complaint has been annexed as Annexure I. It recites that opposite party 1 who happened to be complainant was arrested by Kotwali Police on 16-6-1979, under Section 309, I.P.C., and was produced before the Chief Judicial Magistrate, Ballia, along with the other co-accused and was remanded to jail custody. The remand was operative up to 29-G-1979. It is further stated that opposite party 1 and others fell ill during the period of remand and they were then admitted in District Hospital on 18-6-1979. They were kept in the hospital up to 3-7-1979 i. e., beyond the period of remand, in pursuance of a conspiracy in between petitioner, Dr. Burman, who then happened to be the Superintendent of Jail by virtue of his office as officiating C. M. O. and the then Jailor District Jail, Ballia, namely, Sri R.A. Ansari. The complaint has been filed against these two persons under Section 342/120 I.P.C. The allegation made in the body of the complaint itself would also disclose only offence under Sections 342, I.P.C. and 120-B, I.P.C.
3. Offence under Section 342. I.P.C. is punishable only with one year's R.I. and fine. Section 190(2), Cr. P.C., provides a bar to the taking of cognizance under Section 120B, I.P.C., without the consent in writing of the State Government or the District Magistrate. Only cognizance of conspiracy relating to offences punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards can be taken without consent otherwise there is a mandatory provision that such consent in writing must be obtained before initiation of the proceedings. The complaint does not disclose that any such consent has been taken.
4. As regards prosecution under Section 342, I.P.C., provisions under Section 197, Cr. P.C., again stands as a complete bar for taking of cognizance of that offence. Section 197(1)(a) and (b) run as follows:
197. Prosecution of Judges and public servants - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
It is not disputed that Dr. Burman, the petitioner as well as R.A. Ansari the then Jailor who have been arrayed as accused persons in the complaint were employed at the time of the alleged commission of the offence with the affairs of the State. The prosecution is based on the alleged failure to discharge their duty, A jailor receives an under trial in jail in pursuance of the order of remand by the Court. The period for which the remand is granted is laid down therein. It will be a part of the duty of the jail officials to release the detenu in the course of and in the discharge of the jail duties. Any failure to do so would, by necessary implication, mean any omission in the discharge of such duties. Such omission also is in course of employment and would be a lapse while acting or purporting to act in the discharge of official duty,
5. Apart from that I fail to appreciate how the officiating C.M.O. who also functioned as an Ex.-Officio Superintendent Jail is concerned with release or detention of any detenu. These are the routine duties performed by Jailor and not by the C.M.O. who is simply Ex.-Officio Superintendent Jail as well. The opposite party 1 wag admitted in hospital for treatment. There is nothing in the complaint to suggest that he sought his discharge from the hospital and release and that was disallowed as-such. When that is the position, it is doubtful that mens rea of causing obstruction in petitioner's release exists.
6. After considering all aspects of the case I hold that the complaint cannot proceed in the absence of the sanction as aforesaid and the proceedings in complaint case 541 of 1979 under Section 120B and Section 342, I.P.C., Indramani pathak v. Dr. Burman pending in the Court of Chief Judicial Magistrate, Ballia, is hereby quashed and the application is allowed.