Suresh Ruprao Khandar And Anr. vs State Of Maharashtra
2002 Latest Caselaw 1323 Bom

JUDGMENT

S.T. Kharche, J.

1. Heard Shri Mardikar, Advocate for the applicants and Shri Thakare, A.P.P. for the respondent.

2. This application has been filed under Section 482 of Code of Criminal Procedure by the applicants accused persons for quashing the criminal prosecution and for setting aside the order dated 23rd June, 1998 passed below Exh. 110 by the learned Chief Judicial Magistrate, Amravati in Regular Criminal Case No. 44 of 1994.

3. Mr. Mardikar, the learned counsel for the applicants contended that Crime No. 295 of 1991 for the offences punishable under Sections 468, 420, 161, 165, 471, 474, 120B read with Section 34 of Indian Penal Code has been registered on the basis of which chargesheet has been filed against the applicants-accused. Both the applicants-accused are in the service of Police Department as Junior Clerks. The incident is said to have taken place on 22nd of August 1991 and the report was lodged on 23rd August 1991 by one complainant Anand Mundkur. He contended that the sum and substance of the allegations was that 125 persons were to be selected on 19th August 1991, the list of the candidates from various offices such as Samaj Kalyan, Prakalpa Adhikari, Employment Exchange etc., were called. The applicants being the clerks in police department had sent interview calls letters between 19th August 1991 to 21st August 1991; physical fitness test or written test was held. The candidates, who had cleared physical fitness test were asked to undertake the written examination and when the totalling of the marks was being done it was claimed that insofar as two question papers were concerned, there was some interpolation of marks. He further contended that the allegations of the prosecution is that the applicants being clerks serving under Superintendent of Police in discharge of their official duties, had favoured certain persons and interview calls were got issued in their favour and also there was interpolation of marks and attempt was made to favour certain candidates. He further contended that on the basis of said report the investigation commenced and after due completion of investigation, chargesheet was filed in the Court of learned Magistrate, who took cognizance of the offence.

4. Mr. Mardikar, the learned counsel for the applicants contended that the applicants-accused had submitted application for quashing the prosecution, which came to be rejected on the ground that sanction to prosecute the applicants-accused was not obtained. Mr. Mardikar, the learned counsel for the applicants further contended that Magistrate had no jurisdiction to take the cognizance of the offence unless the sanction to prosecute the applicants is obtained from the State Government as is required as per Rule 63 of the Bombay Police Manual. He further contended that as per notification issued by the State Government, sanction to prosecute was absolutely essential. In support of these submissions, he relied on the decision of this Court in Anil Shet Gaonkar v. Abdulla Khan Karol and Anr. reported in 1996(1) Mh.LJ. Page 978. He also relied on the decision of Apex Court in Rizwan Ahmed Javed Shaikh and Ors. v. Jammed Patel and Ors., , another decision of the Apex Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors. and decision of this Court in the case of Dilip Patki v. State of Maharashtra and Anr., reported in 2000 ALL MR (Cri.) Page 1041.

5. The learned Additional Public Prosecutor contended that no sanction under Section 197 of Code of Criminal Procedure is necessary for prosecuting the Applicants Clerks, who were working as a public servant in the office of Superintendent of Police for offences committed by them not in discharge of their official duties. In support of this submission, he relied on the decision of Single Bench of this Court in case of State of Maharashtra v. Shankar Narayan Wagh reported in 2001(4) Mh.LJ. Page 786.

6. I have given thoughtful consideration to the submissions canvassed by both the counsel for parties. I think it proper to reproduce Section 197 of Code of Criminal Procedure (for short Code), which reads as under:--

Section 197 :-- "Prosecution of Judges and public servants. Sub-section (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 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 the person referred to in Clause (b) during the period while 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 any offence ...... 
 

 (3) The State Government may, by notification .....  
 

7. A bare reading of Sub-clause (b) of Section 197 would reveal that if the offence is committed by any public servant while acting or purporting to act in the discharge of his official duty, who is employed in connection with the affairs of the State Government, then the Court shall not take cognizance of such offence unless the previous sanction of State Government is obtained. 
 

8. This Court in case of Anil Shet Gaonkar v. Abdulla Khan Karol and Anr. (cited supra) the Single Bench of this Court took the view that Section 197 of the Criminal Procedure Code is mandatory. The conditions prescribed under that section are a prerequisite for taking cognizance of a criminal complaint against a Government servant. The legislative object of this section is not only to safeguard the interest of the Government servant from vexatious litigation or other harassments, but also to safeguard the interest of the State itself. Obtaining sanction from the Government to prosecute its servant amounts to notice to the Government about the alleged" offence committed by its servant and gives the Government an opportunity to take corrective steps or appropriate action deemed fit in the circumstances in public interest. Sanction under Section 197 is mandatory without which the complaint against a Government servant becomes ab initio liable to be dismissed.

9. The Apex Court in the case of Rizwan Ahmed Javed Shaikh and Ors. v. Jammal Patel and Ors. cited supra observed in para 15 as under :

"Para 15" -- "The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected."

10. The learned counsel for the applicant also relied on the decision of the Apex Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors., wherein it has been observed in para 23, as under :--

"Para 23" -- The legislative mandate engrafted in Sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings."

11. The learned counsel for the applicants also relied on the Single Bench decision of this Court in case Dilip Patki v. State of Maharashtra and Anr. (cited supra) wherein this Court has observed in para 5, as under :--

"Para 5" -- "It is background of the aforesaid facts that one has to consider the allegations in the complaint. The petitioner was bound to go to the premises and give protection to the mother of respondent No. 2. In such circumstances, if the incident as alleged in the complaint has taken place, then it is a clear case in which sanction to prosecute the petitioner is required. Section 197 clearly says that no Court shall take cognizance of the offence in the absence of valid sanction. The prohibition is from taking cognizance of the offence on the basis of the allegation contained in the complaint. The learned counsel for the petitioner has relied on judgment of the Supreme Court in support of his contention that in the absence of sanction, prosecution of the petitioner is bad and ought to be quashed. The learned counsel for petitioner relied on the judgments , On behalf of respondent No. 2 reliance was placed on a judgment of the Supreme Court report in etc. The law laid down by the Apex Court is well clear. Petitioner in the present case was admittedly acting to discharge of official duty, in any case in purported discharge of his duty, as a Police Officer and if while acting in such discharge or purported discharge of duty, it is alleged that he has committed any offence then it is a case for sanction and in the absence of sanction, the present case cannot be sustainable."

12. The learned Additional Public Prosecutor for the State relied on the decision of Single Bench of this Court in case State of Maharashtra v. Shankar Narayan Wagh (cited supra) wherein it has been observed that no sanction under Section 197 of Criminal Procedure Code necessary for prosecuting the Head Constable, a public servant, incharge of Malkhana for an offence under Section 409 of Penal Code in the matter of misappropriation of amount and making false entries. This Court relied on the decision of Apex Court and took the aforesaid view.

13. Admittedly, both the applicants were working as Junior Clerks in the police department under Superintendent of Police at Amravati. They are sought to be prosecuted on the allegations in the F.I.R. that the candidates, who were called for the purpose of recruitment in the police department were put to the written test and so far as two question papers were concerned, there was some interpolation of marks. It is also the allegation of the prosecution that the applicants had favoured certain persons by issuing interview calls to them for extraneous consideration. On the basis of allegations, the investigation was carried out and the police report under Section 173 of Code was filed in the Court of the learned Judicial Magistrate. It is also admitted position that both the applicants-accused are public servants but then the question is whether both the applicants were acting in their official capacity, in exercise of their duty or there was any dereliction of duty in the course of same transaction in which the official duty was performed or purported to be performed.

14. In the present case, it is not possible to accept the contention of the applicants that they were acting in discharge of their official duties. Making interpolation in the marks and issuing interview calls to the candidates for extraneous consideration cannot be said to be an act which was being performed in the discharge of the official duties and therefore, Section 197 of the Code would not be attracted. The case law on which reliance is placed by the learned counsel for applicants has no bearing on the facts and circumstances of this case, and I am of the considered view that there was no necessity to obtain sanction from State Government to prosecute the accused and the learned Judicial Magistrate First Class was perfectly justified in rejecting the application of the accused-applicants for quashment of criminal prosecution against them on the ground that sanction to prosecute was not obtained. His findings are sustainable in law and deserves to be confirmed. In this state of affairs inherent powers of this Court cannot be exercised to quash the criminal prosecution against the applicants.

15. In the result, application stands dismissed.