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2023 DIGILAW 249 (RAJ)

Momadh Riyaaj S/o Late Mohammad Hanif v. State

2023-01-23

MANOJ KUMAR GARG

body2023
JUDGMENT : 1. Instant criminal misc petition has been filed by the petitioner challenging the order dated 18.11.2016 passed by learned Additional District and Sessions Judge No.2, Chittorgarh whereby, while allowing the revision petition No. 78/2015 filed by the respondents, the order passed by learned Additional Chief Judicial magistrate, Rawatbhata dated 24.08.2015 taking cognizance against the accused respondents for offence under Section 342, 330, 385 read with Section 149 IPC has been set aside. 2. Learned counsel for the petitioner submits that offence under Section 342, 330, 385 read with Section 149 IPC is prima facie made out against the accused respondents and acts done by the respondents cannot be said to be in discharge of official duty and same would not be protected by the armor of Section 197 of the Code. It is further argued that the point about sanction need not have been considered at the initial stage of taking cognizance. At this stage the Court should only see if a "prima facie" case is made out or not. Therefore, the petitioner cannot be prevented from seeking justice due to the omission committed by the State in not granting the requisite sanction. Thus, it is prayed that the Additional District and Sessions Judge No.2, Chittorgarh is liable to be quashed and set aside and the order dated 24.08.2015 passed by learned Additional Chief Judicial Magistrate, Rawatbhata taking cognizance against the respondents is liable to be restored. 3. Per contra, learned Public Prosecutor and counsel for the respondents submits that Section 197 of the Code creates an absolute bar in case of prosecution of a public servant. The said provision prohibits the Court from taking a cognizance of such offence that has been committed by a public servant in discharge of his official duty unless a sanction has been accorded by the appropriate government. The respondents allegedly committed the "offence" during the course of discharging their official duty and therefore, the issue of sanction has to be considered at the threshold of taking cognizance. Therefore, no interference is called for in the impugned order dated 18.11.216 and the misc petition is liable to be dismissed. 4. I have heard learned counsel for the parties and perused the impugned order. 5. Therefore, no interference is called for in the impugned order dated 18.11.216 and the misc petition is liable to be dismissed. 4. I have heard learned counsel for the parties and perused the impugned order. 5. Section 197 of Cr.P.C reads as under: "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, 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 the State, of the State Government: Provided.... " 6. Thus, the protection of this provision is available only if three conditions are fulfilled; the accused is (a) a public servant, (b) has allegedly committed an offence, (c) while acting or purporting to act in the discharge of his official duty. In case these three conditions are fulfilled, then the Court is prevented from taking cognizance of the offence unless the appropriate government grants a sanction against the alleged accused. 7. The revisional Court in its order dated 18.11.2016 has specifically observed that at the time of the incident, the respondents were working on different posts of Forest Department and were acting in discharge of their official duty. Thus, under Section 197 of the Code, the court is prevented from taking cognizance until and unless sanction was granted by the State. 8. In the case of State of H.P. v. M.P. Gupta reported in (2004) 2 SCC 349 , the Hon'ble Supreme Court had an occasion to discuss the scope and ambit of Section 197 of the Code. Thus, under Section 197 of the Code, the court is prevented from taking cognizance until and unless sanction was granted by the State. 8. In the case of State of H.P. v. M.P. Gupta reported in (2004) 2 SCC 349 , the Hon'ble Supreme Court had an occasion to discuss the scope and ambit of Section 197 of the Code. The Apex Court held as under: "The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution." 9. Hon'ble Apex Court in the case of Sankaran Moitra Vs. Sadhna Das and Ors. reported in (2006) 4 SCC 584 has observed as under :- "The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned Counsel for the complainant that this is an eminently fit case for grant of such sanction. 18. We thus allow this appeal and setting aside the order of the High Court quash the complaint only on the ground of want of sanction under Section 197(1) of the Code of Criminal Procedure. The observations herein, however, shall not prejudice the rights of the complainant in any prosecution after the requirements of Section 197(1) of the Code of Criminal Procedure are complied with." 10. This Court, looking into the statutory requirement as laid down in Section 197 Cr.P.C. and the precedent laws of the Hon'ble Apex Court, therefore is of the opinion that Section 197 Cr.P.C. applies in the present case, and the case of the prosecution suffers from lack of acquiring the sanction to prosecute the respondents. 12. Accordingly, the present misc petition having no merit, is hereby dismissed. Record of the trial court be sent back forthwith.