Research › Browse › Judgment

Madras High Court · body

1992 DIGILAW 653 (MAD)

SAKTHIVEL v. MURUGESA SUNDARA PANDIYAN

1992-12-24

S.M.ALI MOHAMED

body1992
Judgment :- S.M. ALI MOHAMED, J. ( 1 ) CRI. O. P. No. 8117 of 1992, under Section 482 Cr. P. C. is to call for the records and quash the private complaint in C. C. No. 56 of 1991, on the file of Chief Judicial Magistrate, Kanyakumari District at Nagercoil. ( 2 ) THE petitioner was charged under Sections 426, 451 and 506 of Indian Penal Code, in the private complaint filed by the respondent. It is alleged that the petitioner who was at the material time, the Sub Inspector of Police, Rajakkamangalam Police Station, Kanyakumari District, trespassed into the residence of the respondent and smashed some bottles containing an ayurvedic medicine called, Kanyakavasam drug and in respect of this incident, a private complaint was, filed by the respondent on 31/5/1991. ( 3 ) CR1. O. P. No. 8118 of 1992, under Section 482 Cr. P. C. , is to call for the records and quash the private complaint in C. C. No. 97 of 1991 on the file of Chief Judicial Magistrate, Kanyakumari District at Nagercoil. ( 4 ) THE Petitioner was charged under Sections 323, 166 and 342 of Indian Penal Code, in the private complaint filed by the respondent. It is alleged that on 25/6/1991, at 8.00 a.m. , the petitioner herein dragged the respondent from his house with his hands tied in the back and put him in the van, threatening that he would beat the respondent unless he withdrew the private complaint against the petitioner. It was further alleged that the petitioner on the way, beat the respondent on his body several times and threatened him that unless he withdrew the private complaint, he would not leave him. It is alleged that the petitioner herein registered a case in Crime No. 165 of 1991 against the respondent for offences under Rule-10 of Tamil Nadu Spirituous Preparations (control) Rules 1984, read with Section 11 of the Tamil Nadu Prohibition Act. It was further alleged that the, respondent was beaten in the police station by the petitioner on 26. 1991. It is stated further that the learned Magistrate after recording the sworn statement of the respondent had issued process against the petitioner without taking into account the legal issues that stood in the way of taking cognizance of the case. It was further alleged that the, respondent was beaten in the police station by the petitioner on 26. 1991. It is stated further that the learned Magistrate after recording the sworn statement of the respondent had issued process against the petitioner without taking into account the legal issues that stood in the way of taking cognizance of the case. ( 5 ) LEARNED counsel for the petitioner contended that the learned Magistrate, ought not to have taken cognizance of the private complaint without any sanction as contemplated under Section 197 Cr. P. C. which should be obtained before institution of the complaint as the offence was alleged to have been committed during the course of duty of the petitioner. Learned counsel for the petitioner further submitted that the petitioner was authorised to exercise the power under Tamil Nadu Prohibition Act 1937 as per Section 25-B of the Act and as such, he was a public servant entitled to protection under Section 197 Cr. P. C. ( 6 ) ON the other hand, Mr. Suthanthiram, learned counsel appearing for the respondent contends that Section 197 of Criminal Procedure Code will not be attracted to the case of the petitioner, as the petitioner is not removable from his office by the State Government. ( 7 ) IN support of the above submission, the learned counsel for the petitioner cited the following two cases, which are as follows:i) In R. R. Chari v. State of Uttar Pradesh, it was held as follows:it is clear that the first part of Section 197 (1) provides a special protection, inter alia, to public servants who are not removable from their offices save by or with the sanction of the State Government or the Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties; and the form which this protection has taken is that before a criminal court can take cognizance of any offence alleged to have been committed by such public servants, a sanction should have been accorded to the said prosecution by the appropriate authorities. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this primafacie satisfaction has been interposed as a safeguard before the actual prosecution commences. In other words, the appropriate authorities must be satisfied that there is a prima facie case for starting the prosecution and this primafacie satisfaction has been interposed as a safeguard before the actual prosecution commences. The object of Section 197 (1) clearly is to save public servants from frivolous prosecution, Vide Afzelur Rahman v. The King Emperor (1943 F. O. R 7 at page 12 ). The being the object of the section, it is clear that if persons happened to be employed in connection with the affairs of the Federation, it was the Governor General who gave sanction and if persons happened to be employed in connection with the affairs of the State, it was the Governor. What is relevant for the purpose of deciding as to who should give the sanction is to ask the question; where is the public servant employed at the relevant time? If he is employed in the affairs of the Federation, it must be the Governor-General in spite of the fact that such employment may be temporary and may be the result of the fact that the services of the public servant have been loaned by the State Government to the Government of Indiaii) In Dr. Lakshmanasingh Himasingh Vaghela v. Naresh Kumar Chandrashankar Jha and others, it was held as follows:under Section 197 (1) Cr. P. C. when 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 of the Government The section extends immunity from irresponsible, frivolous and vexatious prosecution. The privileges of immunity from prosecution without sanction extends only when the accused is a public servant of the kind mentioned therein. He must be a public servant as defined in Section 21 of the Indian Penal Code and not removable from his office save by or with the sanction of the State Government or the Central Government as the case may be. The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty. Section 197 Cr. The offence must also be one committed by the accused while acting or purporting to act in the discharge of his official duty. Section 197 Cr. P. C. clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the Government to their prosecution be necessary. While a public servant holding an office of the kind mentioned in the Section is as such public servant appointed to another office, his official acts in connection with the latter office will also relate to the former office. The words, removable from office occurring in Section 197 signify removal from the office, he is holding. The authority mentioned in the section is the authority under which the officer is serving and competent to terminate his services. If the accused is under the service and pay of the local authority, the appointment to an office for exercising functions under a particular statute will not alter his status as an employee of the local authority. ( 8 ) THE above rulings of the apex court cited by the learned counsel for the petitioner in no way support his contention and on the other hand, support the contention of the learned counsel for the respondent. Admittedly, in the instant case, the appointing authority of the petitioner is the Director General of Police and not the State Government. As such, the petitioner is not entitled to protection under Section 197 of Criminal Procedure Code with regard to obtaining prior sanction before institution of Criminal Proceedings against the petitioner. ( 9 ) ON the other hand, the learned counsel, for the respondent, cited the following rulings. i) In M. J. George v. S. I. of Police, Anthikad, it was held as follows: It is thus clear that a Sub Inspector of Police, though a public servant, is not one who is not removable from his office save by or with the sanction of the Government. Therefore, the provision in sub-section (1) of Section 197 of the Code, does not apply in the case of prosecution launched against a Sub-Inspector of Police, under the State Government. Therefore, the provision in sub-section (1) of Section 197 of the Code, does not apply in the case of prosecution launched against a Sub-Inspector of Police, under the State Government. ii) In Ravanaiya Reddy v. Balaiya Sub-inspector of Police Jolarpettai, it was held as follows: it is doubtful whether sanction to prosecute is at all necessary under Section 197 of the Criminal Procedure Code is respect of a rank-promoted Sub-Inspector of Police who is liable to be removed from service by the Head of the Department and not by the Government. It is again debatable whether the alleged offence against the respondent/accused was committed by him while acting in the discharge of his official duties or otherwise. iii) In Muthusamy Gounder v. C. P. Singharam, it was held as follows: The Inspector of Police is a Subordinate Police Officer. The expression, Subordinate Police Officer shall include all police officers of and below the rank of an Inspector (See Section 1, Interpretation of Tamil Nadu District Police Act. 1859 ). Therefore, the Inspector-General, Deputy Inspector-General of District Superintendent of Police may dismiss or reduce to a lower post, or time scale, or to a lower stage is time scale, any officer of the Subordinate Police whom they shall think remise or negligent in the discharge of his duty. It is, therefore, clear that no sanction of the State Government for the prosecution of the 12th accused/respondent is necessary. ( 10 ) IT is clear from the above rulings and rulings of the apex court, that a public servant is entitled to protection under Section 197 of the Criminal Procedure Code, for obtaining sanction before prosecution only if he is removable from his office by the Central or State Government, as the case may be. In the instant case, I am of the view that the petitioner is not entitled to protection, under Section 197 of the Criminal Procedure Code for obtaining prior sanction before institution of criminal proceedings as the appointing authority of the petitioner, is Director General of Police and not the State Government As such, the petitioner is not entitled to protection, under Section 197 of Criminal Procedure Code. In view of the above, the petitions fail and are dismissed. Petition dismissed.