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2014 DIGILAW 1292 (MP)

Sandeep Kushwaha v. State of M. P.

2014-10-09

S.K.PALO

body2014
JUDGMENT : S.K. Palo, J. 1. Heard. 2. By this application under Section 482 of Cr.P.C., 1973, the petitioner wants to seek the relief for setting aside the order dated 16.5.2013 passed by the learned 1st A.S.J., Guna in Cr. Revision No. 74/2013, by which the learned A.S.J., has allowed the revision and directed the Trial Court that if the complainant (present petitioner) files an application under Section 197 Cr.P.C., direct the complainant (present petitioner) that he can prosecute the complainant only after obtaining a valid sanction for prosecution against the proposed accused person (Non-petitioner No. 3 Sukhlal). 3. Briefly stated the factual matrix of this case is that the complainant (present petitioner) filed an application before the JMFC, Guna under Section 200Cr.P.C. claiming that the Station House Officer Kotwali Guna for allegedly committed offence under Section 323, 294 of IPC. The complainant Sundeep Kushwaha alleged that a criminal case No. 441/2008 was registered against him under Section 457, 427 of IPC, on the report of Bhanu Pratap Tomar on 20.9.2008. That crime was being investigated by Head Constable Satish Singh Raghuvanshi. The petitioner Sandeep Kushwaha went to Police Station, who was manhandled by the non-petitioner No. 3, Sukhlal, SHO of Police Station, Kotwali Guna. It is alleged that he abused him and on the basis of this complaint, the learned JMFC registered a case under Section 294, 323 of IPC against non-petitioner No. 3 Sukhlal. 4. Aggrieved by this the non-petitioner No. 3 filed Cr. Revision No. 74/2013, which was decided by the impugned order dated 16.5.2013 by the learned 1st ASJ, Guna. On perusal of order dated 16.5.2013, it is evident that criminal case was registered against the present petitioner (Sandeep Kushwaha), that was being investigated by Head Constable Satish Singh Raghuvanshi. According to non-petitioner the complainant insisted to be released on bail from the police station in the non-bailable offence registered against him. He also tried to flee from the police station. At that time DSP was also present in the police station. 5. The learned Revisional Court held that the Station House Officer was on official duty and the complaint was filed without any valid sanction. 6. He also tried to flee from the police station. At that time DSP was also present in the police station. 5. The learned Revisional Court held that the Station House Officer was on official duty and the complaint was filed without any valid sanction. 6. For understanding the provision of Section 197 of Cr.P.C., it is felt necessary to reproduce the same: S. 197(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. (Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted;) 2. No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3). The State Government may, by notification, direct that the provisions of sub-sanction (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the express "Central Government" occurring therein, the expression "State Government" were substituted. (3-A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon. (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the matter in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 7. It is argued by the learned counsel for the petitioner that proposed accused/non-applicant No. 3 was not on official duty at the time of incident. But this contention is not supported by any document. The incident took place in the police station as per allegation. Non-applicant No. 3 is the Station House Officer. The complainant contended that he was not on duty. But the petitioner had come up with the document to show that the non-applicant No. 3 was not on duty at that time. Nor any such document is available on record. 8. In the case of Anil Kumar and others Vs. Non-applicant No. 3 is the Station House Officer. The complainant contended that he was not on duty. But the petitioner had come up with the document to show that the non-applicant No. 3 was not on duty at that time. Nor any such document is available on record. 8. In the case of Anil Kumar and others Vs. M.K. Aiyappa and another : (2014) 1 SCC (Cri.) 35, the Hon'ble Supreme Court has made it clear that, in a private complaint against the public servant under Section 200 of Cr.P.C. reference of complaint while making under Section156(3) of Cr.P.C., the Magistrate has to apply his mind, which should be reflected in his order that a detail expression of his view neither required nor warranted. At the same time, if sanction is required under the provisions investigation under Section 156(3) of Cr.P.C. cannot be ordered without previous sanction. 9. The purpose of obtaining sanction is to see that the public servant be not unnecessarily harassed on a complaint, failing which it would not be possible for public servant to discharge his duty without fear and favour. This Court is of the opinion that, the requirement of sanction is prerequisite even for resulting private complaint under Section 200 Cr.P.C. as has been held Anil Kumar and others (supra). In Baijnath VS. State of Madhya Pradesh (: AIR 1966 S.C. 220 ), Hari Ram Singh Vs. Emperor : AIR 1939 FC 43) R.R. Chari Vs. The State of U.P. : AIR 1951 SC 207 ) held that "sanction under Section 197 of Cr.P.C. has to be obtained before cognizance is taken by a Magistrate and not after cognizance is taken". 10. Accordingly, this revision petition has no merit and is hereby dismissed.