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2018 DIGILAW 1911 (HP)

Biri Singh v. State Of H P

2018-11-01

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. - Petitioner herein is one of the accused persons in FIR No.315/11, registered in Police Station, Palampur, District Kangra, under Sections 336, 337, 338 and 304-A of the Indian Penal Code, with the allegations that when he was Incharge of the site of construction of Palampur-byepass (including high level bridge) Kilometer 113/285 to Kilometer 113/705 on Pathankot-Chakki-Mandi Road, the bridge suddenly collapsed when the execution of the concrete work between Piers P5 and P6 was in progress, resulting in loss of life and property. On completion of the investigation, Challan stands filed against him and his coaccused. He, however, filed an application for his discharge from the case on the ground that for want of prosecution sanction he cannot be prosecuted. 2. Learned trial Judge having taken on record the response of the State-respondent has arrived at a conclusion that since the post of Junior Engineer is a Class-III post, therefore, the prosecution sanction within the meaning of Section 197 Cr. P.C. is not required to be obtained before launching prosecution against him. Reliance has been placed on a judgment of the Apex Court in Fakhruzamma Vs. State of Jharkhand and another , (2013) 15 SCC 552 . 3. The accused-petitioner, however, being not satisfied with the impugned order has questioned the legality and validity thereof in this petition. The complaint is that the Court below has failed to consider the facts of the case and also the law applicable as well as the provisions contained under Section 197 Cr. P.C. in its right perspective. This Court, however, is not in agreement with the submission so made for the reasons that admittedly the accused-petitioner, at the relevant time, was working as a Junior Engineer, a Class-III post. A plain reading of the provisions contained under Section 197 of the Code reveals that 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 in the discharge of his official duty, cognizance of the offence,, if any, committed by him, cannot be taken by any Court, except with the previous sanction of the Government. 4. The Junior Engineer in Public Works Department can be removed from service by the Head of the Department, i.e. Engineer-in-Chief, as stated by learned Deputy Advocate General at bar. 4. The Junior Engineer in Public Works Department can be removed from service by the Head of the Department, i.e. Engineer-in-Chief, as stated by learned Deputy Advocate General at bar. Therefore, when for removal of Junior Engineer the sanction of the Government is not necessary, the prosecution sanction under Section 197 of the Code is also not required to be obtained to prosecute him for the commission of an offence, even if committed during the discharge of official duty. It is even held so by Hon''ble the Apex Court in Fakhruzamma''s case cited supra. This judgment reads as follows: "8. A similar issue came up for consideration before this Court in Nagraj case, wherein this Court was called upon to examine the scope of Section 197 Cr. P.C. read with Sections 4 (c), 8, 26(1) and 3 of the Mysore Police Act,1908. Interpreting the abovementioned provisions, a here-judge Bench of this Court held that an Inspector General of Police can dismiss a SubInspector and, therefore, no sanction of the State Government for prosecution of the appellant was necessary, even if he had committed the offence alleged while acting or purporting to act in discharge of his official duty." 5. It is thus seen that when an Inspector General of Police was competent to remove a Sub-Inspector-accused, it has been held that no sanction of the State Government was necessary, even if he had committed the offence in the discharge of his official duty. The point in issue, therefore, is squarely covered against the accused-petitioner by the judgment cited supra. 6. Learned counsel representing the accusedpetitioner though has placed reliance on the judgments of the Apex Court in Rakesh Kumar Mishra Vs. State of Bihar , (2006) 1 SCC 557 and State of Orissa Vs. Ganesh Chandra Jew , (2004) 8 SCC 40 , however, unsuccessfully for the reason that nothing has come therein, suggesting that the prosecution sanction is required, even in the case of a public servant, removable by an authority, other than the State Government. For the fore-going reasons, there is no merit in this petition and the same is accordingly dismissed.