HIGH COURT OF MADHYA PRADESH AT JABALPUR
M.Cr.C. No. 17981/2016
Ganesh Prasad Dubey
Vs.
State of Madhya Pradesh Ors.
[Single Bench : Hon’ble Smt. Anjuli Palo, Judge]
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Shri Santosh Kumar Pathak, learned counsel for the petitioner.
Shri Akshay Namdeo, Government Advocate for respondent-State.
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ORDER
(16/07/2018)
This petition has been filed by the petitioner/accused under
Section 482 of Cr.P.C. for quashing the order dated 13.07.2016 in Cr.C.No.
321/2013 passed by the Judicial Magistrate First Class, Rewa whereby the
trial Court held that sanction under Section 197 of Cr.P.C. is not required
for the prosecution of petitioner for committing offences under Section
383 and 384 of Cr.P.C.
2. Briefly stated, the facts of the case are that the petitioner was
posted at Police Station Baikunthpur as SHO till 15.05.2013. One
Sangeetha Sahu complained against Ram Niwas Sahu-respondent No. 3
for outraging her modesty. FIR was immediately lodged by Duty Officer
Dayanand Sharma on 08.08.2011 under Sections 294, 354, 506-Part II of
IPC against respondent No. 3. After due investigation, challan was filed in
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the concerned Court. The trial Court framed charges under Sections 354,
and 506-Part II of IPC against respondent No. 3. Thereafter, he
absconded. During the abscondence, he filed a private complaint against
the present petitioner and prosecutrix Sangeeta Sahu to conceal the fact of
pendency of criminal case No. 448/2011 against him.
3. At the time of the incident, the petitioner was a public servant,
hence trial Court did not register any case against him for want of
prosecution under Section 197 of Cr.P.C. But after the transfer of the
earlier presiding officer, a successor Magistrate registered criminal case
No. 321/2013 against the petitioner as co-accused without obtaining
proper sanction under Section 197 from the competent authority. Thus, he
filed an application for deleting his name from the case on the ground of
lack of proper sanction from the competent authority. The application was
rejected by the trial Court by making a complete avoidance of provisions
of Section 197 of Cr.P.C. Hence, the present petition has been filed by the
petitioner for quashing order dated 13.07.2016 and for directing the
learned Trial Court for deleting the name of the petitioner from the array of
accused.
4. Learned Government Advocate appearing for respondent-State
and learned counsel appearing for respondent No. 3 strongly opposed the
contentions of learned counsel for the petitioner. In the written submission,
respondents No. 2 and 3 have submitted that the conduct of petitioner
indicates that he demanded money from complainant Ram Niwas
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Sahu against his official duty. Therefore, the petitioner has failed to make
out any prima facie case warranting any kind of interference of this Court.
Hence, the petition is liable to be dismissed.
5. Arguments of both the learned counsel for the parties heard.
Perused the record.
6. Respondent No. 3 filed a complaint against the petitioner, one
Sangeeta Sahu and others on the ground that the petitioner wrongly
registered crime against respondent No. 3 for committing offence under
Section 354 of IPC with Sangeeta Sahu and detained respondent No. 3 for
a night. He demanded Rs. 2,000/- as bribe, hence after received Rs.
2,000/- from the family of respondent No. 3, he released the respondent
No. 3 from the custody. Respondent No. 3 tried to lodged the report
against him but FIR has not been lodged by the police against the
petitioner. Therefore, a private complaint was filed by respondent No. 3
against the petitioner. There is a possibility that as a counter blast,
respondent No. 3 filed the private complaint against the petitioner because
he was on officially bound to lodge FIR as presented by Sangeeta Sahu.
Therefore, sanction under Section 197 of Cr.P.C. is necessary for the
prosecution of the petitioner. Without due sanction, his prosecution for the
crime under Section 383 and 384 is not maintainable.
7. In case of Shambhoo Nath Misra Vs. State of UP Ors.,
(1997) 5 SCC 326, the Hon’ble Supreme Court has held as under :
“The essential requirement postulated for sanction to
prosecute the public servant is that the Offence
4 M.Cr.C.No. 17981/2016alleged against the public servant must have been
done while acting or purporting to act in the
discharge of his official duties. In such a situation, it
postulates that the public servant’s act is in
furtherance of the performance of his official duties.
If the act/omission is integral to performance of
public duty, the public servant is entitled to the
protection under Section 197 (1) of Cr, P, C, without
previous sanction, the complaint/charge against him
for alleged offence cannot be proceeded with in the
trial, The sanction of the appropriate Government or
competent authority would be necessary to protect a
public servant from needless harassment or
prosecution. The protection of sanction is an
assurance to an honest- and sincere officer to
perform his public duty honestly and to the best of
his ability. The threat of prosecution demoralizes the
honest officer. The requirement of sanction by
competent authority of appropriate Government is an
assurance and protection to the honest officer who
does his official duty to further public interest
However, performance of Official duty Under colour
of public authority cannot be camouflaged to commit
crime. Public duty may provide him an opportunity
to commit crime. The Court to proceed further in the
trial or the enquiry, as the case may be, applies its
mind and records finding that the crime and the
official duty are not integrally connected.
Section 197 (1) postulates that “‘when any person
who is 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 of the appropriate
Government/authority”.”
8. Therefore, as a public servant who perform his official duty,
the petitioner is entitled to protection under Section 197(1) of Cr.P.C.
Without previous sanction, the complaint/charge against him for the
alleged offence cannot be proceeded with in the trial court.
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9. Accordingly, the petition is hereby allowed. Consequently, the
prosecution of petitioner under Section 383 and 384 of Cr.P.C. on the
complaint of respondent No. 3 is hereby quashed for lack of sanction for
prosecution under Section 197(1) of Cr.P.C. He is discharged from the
aforesaid charges levelled against him.
(Smt. Anjuli Palo)
Judge
vidya
Digitally signed by
SREEVIDYA
Date: 2018.07.16
18:09:48 +05’30’
