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2009 DIGILAW 175 (RAJ)

Balraj Singh v. State of Rajasthan

2009-01-20

KISHAN SWAROOP CHAUDHARI

body2009
ORDER:- Petitioner has filed this petition under Section 482, Cr. P.C. against the order dated 1-5-2006 by which cognizance was taken against petitioner and other accused-persons under Sections 307, 365, 323,324, 341,427, 166, 167, 120-B, IPC and Section 27, Arms Act. 2. Brief facts of the case are that complaint Charanjeet Singh, husband of respondent No.2 filed a complaint and alleged that he along with Kishan Singh was coming on 6-12-2002 in pickup vehicle, they were stopped by petitioner Balraj Singh, S.H.O. along with other police personnels, who were on spot in three vehicles. Petitioner abused him and when he requested the petitioner not to abuse him, petitioner asked other accused-persons to damage complainants vehicle, other accused-persons damaged the complainants vehicle and petitioner and Babu Ram be laboured to the complainant and Kishan Singh, and later on, complainant and Kishan Singh sat in their vehicle and started it then petitioner fired on the jeep by his revolver, which did not hit them and later on petitioner asked Babu Ram to fire and at the petitioners instance Babu Ram fired by his rifle and cartridge hit complainant, he fell down, then he was get admitted in hospital by the petitioner and other accused-persons. Later on, complainant came to know that he ha~ been falsely implicated in excise case. On this complaint, statements under Sections 200 and 202, Cr. P.C. were recorded and cognizance against the petitioner and other accused-persons were taken as mentioned above by impugned order. 3. Heard learned counsel for the petitioner, respondent No.2 and learned public prosecutor and perused the impugned order. 4. Learned counsel for the petitioner argued that impugned order is without jurisdiction as previous sanction was not taken from the State Government under Section 197, Cr. P.C. for taking cognizance and further submitted that this complaint was filed after two months and 18 days of alleged incident, and petitioner and other accused persons have been convicted under Section 279, IPC and 19/54 Excise Act, hence, petition may be accepted and impugned order be quashed. On the other hand, learned counsel for respondent submitted that previous sanction of State Government was not necessary for prosecuting the petitioner, and further submitted that without filing revision against the impugned order before Sessions Court, this petition is not maintainable. 5. On the other hand, learned counsel for respondent submitted that previous sanction of State Government was not necessary for prosecuting the petitioner, and further submitted that without filing revision against the impugned order before Sessions Court, this petition is not maintainable. 5. The short point involved in this petition is whether in view of Section 197, Cr.P.C. previous sanction of the State Government was necessary before taking cognizance against the petitioner S.H.O. who is public servant. 6. Learned counsel for the petitioner placed reliance on following judgments of Honble Supreme Court and of this Court. (i) Harish Chandra v. CBI, 1988 Cri LR (Raj) 136, (ii) State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : (2004 Cri W 201l). (iii) Sankaran Moitra v. Sadhna Das. 2006 Cri LR (SC) 295: ( AIR 2006 SC 1599 ). 7. In Harish Chandras case (supra), it was held that where there is reasonable connection between the act and duties of police officer, order of taking cognizance is not sustainable in absence of sanction for prosecution. I agree with the principle laid down in aforesaid judgment but it is to be seen by the trial Court whether there is reasonable connection between the act and duties of the petitioner or not. Apex Court has held in Criminal Appeal No. B/2009 alias SLP (Cri) No. 2864/2007, Choudhary Parveen Sultana v. State of West Bengal decided on 7-1-2009 that public servant can face prosecution without prior sanction of the appropriate authorities. All acts done by a public servant in the purported discharge of his official duties cannot be brought under the protective umbrella of Section 197, Cr. P.C. There can be cases of misuse and abuse of powers vested in a public servant which can never be a part of his official duties. In this case, Sankra Mohitras case (supra) cited by earned counsel for the petitioner has been Considered and after following Bhagwan prasad Srivastava v. N.P. Misra, reported n (1971) 1 SCR 317 : (1970 Cri W 1401) held that all acts done by a public servant n the purported discharge of his official furies cannot as a matter of course be brought under the protective umbrella of section 197, Cr. P.C. and further held that f the authorities vested in a public servant s misused for doing things which are not the wise permitted under the law, no protection can be demanded by public servant mater Section 197, Cr. P.C. It was further observed that in order to apply bar of Section 197, Cr. P.C. each case has to be considered in its own facts situation in order to live at a finding as to whether the protection of Section 197, Cr. P.C. could be given :0 the public servant. 8. Thus, it becomes clear that arguments of learned counsel for the petitioner that no cognizance can be taken against a public prevent without sanction of the Government Or committing any offence while acting or purporting to act in discharge of his official duties is devoid of force and each case• has to be considered in its own facts situation. 9. In Harish Chandras case (supra), order passed by the learned Magistrate taking cognizance was challenged by filing separate applications under Sections 397 and 399, Cr.P.C. and when revision was dismissed, proceedings under Section 482, Cr.P.C. were filed. In the present case, petitioner neither raised plea of Section 197. Cr.P.C. before the Court taking cognizance nor filed revision against the impugned order assailing it on the ground of Section 197. Cr. P.C. but has filed directly petition under Section 482, Cr. P.C. which is not maintainable as per law laid down by this Court in Natwar Lal v. State. 2008 (1) Cr LR (Raj) 617: (2008 Cri W 3579). In para 2 of State of Orissa v. Ganesh Chandra Jew (2004 Cri W 2011) (supra), it has been mentioned that Orissa High Court at the first instance permitted the appellants to make submissions before the SDJM but the SDJ¥ took the view that there is no necessity for sanction under Section 197, Cr.P.C. petition under Section 482. Cr. P.C. was filed. In the present case, petitioner has neither approached to the Court taking cognizance nor to the revisional Court. In the aforesaid case, it was observed that exercise of jurisdiction under Section 482, Cr. Cr. P.C. was filed. In the present case, petitioner has neither approached to the Court taking cognizance nor to the revisional Court. In the aforesaid case, it was observed that exercise of jurisdiction under Section 482, Cr. P.C. has to be in very rare cases and in the light of the aforesaid observation, this is not a fit case in which proceedings can be quashed at this stage for want of sanction under Section 197, Cr.P.C. and at this stage, it would not be proper on the part of this Court to go on merits of the case whether sanction under Section 197, Cr.P.C. is required or not because if any observation is made, it will prejudice rights of the parties. 10. Thus, the petition filed by the petitioner under Section 482, Cr. P.C. is dismissed. However, the petitioner may approach the Court taking cognizance or may assail the impugned order before the revisional Court as held in Natwar Lars case (supra). Petition dismissed.