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2013 DIGILAW 382 (JK)

Khalid Jahangir v. Surjit Kumar

2013-07-09

ALI MOHAMMAD MAGREY

body2013
1. This petition under Section 561-A Cr. P. C. has been filed by the petitioner seeking quashing of the complaint no.01 of 02.01.2009 titled Surjit Kumar v. Khalid Jehangir pending in the Court of Chief Judicial Magistrate, Kishtwar for offences punishable under Sections 500, 504 RPC. 2. The complainant has filed the aforesaid complaint alleging therein that he was appointed as Sector Magistrate at Chatroo, 52 Inderwal Constituency on 12.12.2008. Accused was the Returning Officer for the said Constituency and a meeting of the concerned officers was called by him on 16.12.2008 in his office located at D.C. Office Complex, Kishtwar. The complainant also came to attend the meeting. It is alleged that seating arrangement adjusted all others excluding the complainant, as a result all other Sector Magistrates, except the complainant were sitting. He invited the attention of the Returning Officer to his inability to stand for such a long period due to knee problem, but the said Returning Officer, instead of listening the genuine problem, hurled filthy language upon the complainant and directed him to get out of the office chamber due to which the complainant was humiliated before the fellow colleagues. It is alleged in the complaint that the said act of the above said accused person was not in his official capacity, but an individual act. 3. The learned Magistrate, vide order dated 12.01.209, has drawn the proceedings under Sections 500, 504 RPC and ordered issuance of process. The petitioner has sought quashing of the aforesaid complaint in the present petition. 4. Section 197 of the Code of Criminal Procedure places a bar on taking of cognizance by any Court of any offence which is alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duties. The aforesaid provision is extracted hereunder: "197. 4. Section 197 of the Code of Criminal Procedure places a bar on taking of cognizance by any Court of any offence which is alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duties. The aforesaid provision is extracted hereunder: "197. Prosecution of Judges and public servants: (1) When any person who is Judge within the meaning of section 19 of the Ranbir Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the State Government or the Government of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction." 5. Admittedly, the petitioner was appointed as a Returning Officer and at the relevant time was acting or purporting to act in the discharge of his official duties. It is also admitted by the complainant-respondent in his complaint that the incident occurred while the meeting of the officers/Magistrates was on. Therefore, in light of the clear provisions of Section 197 Cr. P. C., it was not competent for the learned Magistrate to take cognizance of the offences alleged by the complainant in his complaint, unless there was a prior sanction to prosecute accorded by the competent authority. Reference in this connection may also be made to the decision of a Coordinate Bench of this Court in Kamal Saini v. Chandan Kumar, reported in (1990) KLJ 87 : 1998 SLJ 441 : 1999 Cr. L. J. 652, wherein the Court has held that when there is misuse of the official position, such action cannot be said to be unconnected with the discharge of official duties. 6. In view of the mandate of the aforesaid provision of Section 197 Cr. P. C., before cognizance could be taken of the complaint, it was required on the part of the learned Magistrate to address himself whether the provisions of Section 197 Cr. P.C are attracted or not. The facts of the case are such that the same are fully attracted. The legal requirement of prior sanction to prosecute the petitioner, being lacking in the case, cognizance of the complaint is per se illegal. 7. P.C are attracted or not. The facts of the case are such that the same are fully attracted. The legal requirement of prior sanction to prosecute the petitioner, being lacking in the case, cognizance of the complaint is per se illegal. 7. This petition is, accordingly, allowed. The complaint no. 01 of 02.01.2009 titled Surjit Kumar v. Khalid Jehangir pending in the Court of Chief Judicial Magistrate, Kishtwar under Sections 500, 504 RPC is quashed and, consequently, the order taking cognizance and the issuance of process are quashed too. 8. Trial Court record be sent back.