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1970 DIGILAW 144 (BOM)

PRABHAKAR SINARI v. SHANKAR VERLEKAR

1970-10-08

C.M.RAO

body1970
ORDER This is a reference made by the learned Additional Sessions Judge at Margao. 2. The facts necessary to be mentioned for the disposal of this matter are these :- The respondent herein filed complaint against the revision petitioner and four others for offences under Sections. 342, 352 and 504 etc., I.P.C.; in the First Class Magistrate's court at Margao. The learned Magistrate after recording the statement of the complainant under Section 200 Criminal P.C. summoned the accused to answer the charges. Aggrieved by the order of the learned Magistrate summoning the accused to answer the charges, the revision petitioner filed revision petition in the Sessions Court at Panaji contending that he was Deputy Superintendent of Police, that the Magistrate overlooked the provisions of Section 197, Criminal P.C. and issued summons and that the order passed by the Magistrate was fit to be set aside. The learned Sessions Judge reported to this Court that the Magistrate acted against law and that it was essential to give necessary directions to the Magistrate. On receiving the reference from Sessions Court my learned predecessor and the Additional Judicial Commissioner heard the parties and passed the order dated 19th November 1966. ( AIR 1967 Goa 121 ). My learned predecessor found that there was no material to attract Section 197, Criminal P.C. and that it would be open to the petitioner to satisfy the Magistrate after evidence is recorded, that Section 197(1) was attracted and that he could not be prosecuted for want of sanction. The learned Additional Judicial Commissioner agreed with the opinion of the learned Sessions Judge. In view of the provisions of Section 7(2) of the Goa, Daman and Diu Judicial Commissioner's Court Regulation 1963, the order passed by my learned predecessor prevailed. Aggrieved by the order of my learned predecessor the revision petitioner went in appeal to the Supreme Court. The Honourable Supreme Court dismissed his appeal agreeing with the opinion expressed by my learned predecessor. The decision of the Supreme Court is that the material on record was not sufficient to hold that the revision petitioner herein had acted in discharge of his official duties and that it would be open to him to establish during the course of further proceedings that the requisite sanction under Section 197, Criminal P.C. must be obtained. The decision of the Supreme Court is that the material on record was not sufficient to hold that the revision petitioner herein had acted in discharge of his official duties and that it would be open to him to establish during the course of further proceedings that the requisite sanction under Section 197, Criminal P.C. must be obtained. After this Court pronounced its judgment and before the matter was decided by the Supreme Court, the Magistrate issued summons to the accused in the case to appear in his court to answer the charges. The revision petitioner then contended, by filing petition dated 2-8-1967 before the Magistrate, that he was ready to establish that the acts alleged to have been committed were committed in the course of the discharge of his official duties and that that matter was fit to be decided at first. The petition dated 2-8-1967 was filed by the revision petitioner through his advocate. Before that petition, petition dated 14-3-1967 was filed by the revision petitioner in person in Magistrate's court contending that Section 197, Criminal P.C. was attracted and that no action could be taken on the complaint filed by the complainant till the required sanction was obtained. The learned Magistrate passed order dated 9-8-1967 dismissing the petition dated 2-8-1967 filed on behalf of the revision petitioner. Aggrieved by the order dated 9-8-1967 passed by the Magistrate the revision petitioner filed revision petition is Sessions Court. That petition has been decided by the Additional Sessions Judge at Margao by his order dated 27-7-1970 and he has made this reference by that order recommending that the order of the First Class Magistrate may be set aside and the Magistrate may be directed to take evidence and decide the question of the need of sanction under Section 197, Criminal P.C. before the commencement of the trial. 3. I have heard the arguments of the learned advocates appearing for the parties. 4. The point for determination is whether in view of the facts of this case, the revision petitioner can be permitted to establish that Section 197, Criminal P.C. is attracted even before the complaint leads his evidence. 5. The learned Additional Sessions Judge has written a very lengthy order of 28 pages. He discussed almost the entire case-law relating to Section. The point for determination is whether in view of the facts of this case, the revision petitioner can be permitted to establish that Section 197, Criminal P.C. is attracted even before the complaint leads his evidence. 5. The learned Additional Sessions Judge has written a very lengthy order of 28 pages. He discussed almost the entire case-law relating to Section. 197, Criminal P.C. It appears that the learned Additional Sessions Judge while making reference did not keep in view fully the fact that the matter relating to Section 197, Criminal P.C. in this case was clarified by the Honourable Supreme Court and that the Honourable Supreme Court had observed as to how the question relating to Section 197, Criminal P.C. can be had decided in this case. I have stated above the observations of the Supreme Court. The Supreme Court has held that from the material which is already on record it cannot be said that the revision petitioner committed the alleged acts in discharge of his official duties and that it would be open to him (the revision petitioner) to establish, during the course of further proceedings, that the requisite sanction under Section. 197, Criminal P.C. must be obtained. In view of this decision of the Honourable Supreme Court, about the question relating to Section 197, Criminal P.C., all that has to be done in this case is that in further proceedings (i.e. the proceedings commencing from Section 252, Criminal P.C. onwards) if it comes to light that the revision petitioner acted in discharge of his official duties the Magistrate should pass appropriate orders. If the Magistrate is of the opinion that till the complainant adduces all his evidence he (Magistrate) cannot decide the question relating to Section. 197, Criminal P.C. he is not correct. The question relating to Section 197, Criminal P.C. can be decided at any stage of the case if there is sufficient material to decide that point. If the revision petitioner after cross-examining the complainant or any of his witnesses is able to prove that Section 197, Criminal P.C. is attracted, the Magistrate can dispose of the case as per law. He need not wait till the entire prosecution evidence is recorded. If the revision petitioner after cross-examining the complainant or any of his witnesses is able to prove that Section 197, Criminal P.C. is attracted, the Magistrate can dispose of the case as per law. He need not wait till the entire prosecution evidence is recorded. If till the stage of framing of the charge it is not established that Section 197, Criminal P.C. is attracted and charge is framed, then in defence the revision petitioner will have opportunity to establish that that section is attracted. The contention of the revision petitioner that he may be first allowed to adduce evidence to establish that Section 197, Criminal P.C. is attracted is neither in accordance with the provisions of Criminal P.C. nor with the decision of the Supreme Court. He can bring on record the material relating to Section 197, Criminal P.C. by cross-examining the complainant and his witnesses and if necessary adducing evidence in defence. In my opinion, the learned Magistrate was right in holding that the prayer of the revision petitioner, that he be permitted to adduce evidence and prove that Section. 197, Criminal P.C. was attracted even before the complainant adduced his evidence, was against law and could not be allowed. I am unable to accept the reference made by the learned Additional Sessions Judge. With the clarifications made above, the order of the Magistrate is upheld and the reference is rejected. Reference rejected.