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2015 DIGILAW 494 (RAJ)

Pooran Chandra Gupta v. State of Rajasthan

2015-02-24

M.N.BHANDARI

body2015
JUDGMENT 1. - By this criminal misc. petition, a challenge is made to the order dated 28th August, 2000 passed by the Judicial Magistrate (First Class), Weir, district Bharatpur so as the order date 08th February, 2007 passed by the Additional Sessions Judge, No.2, Bayana, district Bharatpur. By the impugned orders, cognizance of offence was taken under Sections 147, 447 & 427 IPC. 2. The challenge to the impugned orders is made in reference to Section 197 of Cr.P.C. 3. It is submitted that sanction for prosecution was not taken before passing an order for cognizance of offence, though the petitioner's act was in discharge of duties. He is entitled to the protection of Section 197 of Cr.P.C. A reference of judgment of this case in the case of Mahendra Singh Rao v. State of Rajasthan & Anr. reported in 2007(2) Cr.L.R. (Raj.) 1664 has been given. Therein also, the order of cognizance of offence was passed without sanction for prosecution. This Court held that Tehsildar cannot be allowed to prosecute in absence of sanction for prosecution. The petition to challenge the order of protection of Section 197 of Cr.P.C. was dismissed by the Court. 4. A reference of judgment of Hon'ble Apex Court in the case of N.K.Ogle v. Sanwaldas Alias Sanwalmal Ahuja reported in (1999) 3 SCC 284 has also been given wherein also, a Tehsildar was involved and in absence of sanction for prosecution, as required under Section 197 of Cr.P.C., the prosecution was not allowed. 5. Learned Public Prosecutor as well as learned counsel for the non-petitioner No.2 have opposed the petition. 6. I have considered the submissions made by learned counsel for the parties and perused the impugned orders. 7. The only argument raised by learned counsel for the petitioner to challenge the impugned order of cognizance of offence and the order passed on revision petition is in reference to Section 197 of Cr.P.C. For ready reference, the aforesaid provision is quoted thus : "197. Prosecution of Judges and public servants. 7. The only argument raised by learned counsel for the petitioner to challenge the impugned order of cognizance of offence and the order passed on revision petition is in reference to Section 197 of Cr.P.C. For ready reference, the aforesaid provision is quoted thus : "197. Prosecution of Judges and public servants. (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: 1 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- section (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 expression" Central Government" occurring therein, the expression" State Government" were substituted. (3A) 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. (3B) 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 manner 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." 8. The perusal of Section 197 of Cr.P.C. reveals as to when it would apply. Sub-section (1) of Section 197 of Cr.P.C. can be applied if two requirements are fulfilled. Firstly, it should be a case of public servant not removable from his service save by or with the sanction of the government. Every public servant is not covered by the aforesaid provision but only those public servants, whose services are not removable save by or with the sanction of the government. The other requirement is that offence alleged to have been committed by him was while acting or purporting to act in the discharge of official duties. If, either of the requirement of Section 197(1) of Cr.P.C. is found missing, it cannot be applied. The other requirement is that offence alleged to have been committed by him was while acting or purporting to act in the discharge of official duties. If, either of the requirement of Section 197(1) of Cr.P.C. is found missing, it cannot be applied. In the case of Mahendra Singh Rao (supra), officer involved was Tehsildar, however, the judgment aforesaid does not refer to first part of Section 197(1) of Cr.P.C. The issue as to whether service of Tehsildar is not removable by or with the sanction of the Government was not raised and decided. There is nothing on record to show that service of Tehsildar is removable save by or with the sanction of the Government, though time was given to the learned counsel to find out the aforesaid. He has admitted that termination of service of Tehsildar is not by or with the sanction of government. 9. The requirement of first part of Section 197 of Cr.P.C. is, thus not made out. The aforesaid issue was not raised and considered by the Court in the case of Mahendra Singh Rao (supra). It seems that judgment aforesaid was given in the light of the judgment of Hon'ble Apex Court in the case of N.K.Ogle (supra). The issue there was as to whether Tehsildar was acting in discharge of official duties and accordingly, the issue was decided by the Hon'ble Apex Court holding that Tehsildar therein was acting in discharge of official duties. The issue as to whether his services are not removable save by or with the sanction of the Government was neither raised nor decided. Thus, judgment aforesaid cannot help the petitioner. 10. If the entire provision is considered, saving exists to a public servant but on certain conditions and if, those conditions are not fulfilled, benefit cannot be extended. Sub-section 3 of Section 197 of Cr.P.C. provides for issuance of notification, which may specify class or category of the members of the Forces charged with the maintenance of public order. The petitioner does not fall in the said category in absence of notification and is not a member of the Forces charged with the public order. 11. In view of the discussion made above, I not find any illegality in the impugned orders. The petitioner does not fall in the said category in absence of notification and is not a member of the Forces charged with the public order. 11. In view of the discussion made above, I not find any illegality in the impugned orders. Section 197 of Cr.P.C. does not apply to the petitioner merely for the reason that he is holding a public post unless his services are not terminable save by or with the sanction of the government. 12. In view of the aforesaid, I not find any merit in this criminal misc. petition so as to cause interference therein. Hence, it is dismissed *******