Bombay High Court
Manisha Shivkumar Ghalapure And ... vs Parvati Shankar Somwanshi And Anr on 23 December, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 489 OF 2007
Nitin s/o Sheshrao Datal,
Age. 42 years, Occ. Service as
Child Development Officer,
Integrity Child Development Scheme,
Chakur, R/o. Chakur, Tq. Chakur,
Dist. Latur. ...Petitioner
versus
1. Parvati w/o Shankar Somwanshi,
Age. 35 years, Occ. Household,
R/o. Jai Bhavani Galli, Chakur,
Tq. Chakur, Dist. Latur
2 State of Maharashtra,
Through Police Station, Chakur,
Tq. Chakur, Dist. Latur. ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 495 OF 2007
1. Mrs. Manisha w/o Shivkumar Ghalapure,
Age. 20 years, Occ. Service,
R/o. Azad Chowk, Chakur,
Taluka Chakur, District Latur
2. Mrs. Mahananda w/o Sambling Ghalapure,
Age. 45 years, Occ. Household,
R/o. As above. ...Petitioner
versus
1. Parvati w/o Shankar Somwanshi,
Age. 35 years, Occ. Household,
R/o. Jai Bhavani Galli, Chakur,
Tq. Chakur, Dist. Latur
::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:23:28 :::
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2 State of Maharashtra,
Through Police Station, Chakur,
Tq. Chakur, Dist. Latur. ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 535 OF 2007
Sopan s/o Gangaramji Dal,
Age. 40 years, Occ. Service,
R/o. Sarda nagar, Parbhani,
Tq. and Dist. Parbhani. ...Petitioner
versus
1. Parvati w/o Shankar Somwanshi,
Age. 35 years, Occ. Household,
R/o. Jai Bhavani Galli, Chakur,
Tq. Chakur, Dist. Latur
2 State of Maharashtra,
Through Police Station, Chakur,
Tq. Chakur, Dist. Latur. ...Respondents
...
Advocate for Petitioner: Shri S C Swami h/f Shri V D Gunale
Advocate for Respondent No. 1: Mr V P Golegaonkar
APP for Respondent No.2-State : Mr S P Tiwari
.....
CORAM : V. K. JADHAV, J.
Date of Reserving
the Order : 19.12.2016
Date of pronouncing
the Order: 23.12.2016
JUDGMENT:-
1. Being aggrieved by the order dated 26.7.2007, passed by the
learned Judicial Magistrate, First Class, Chakur, in Criminal Case No.
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124 of 2007, passed under section 156(3) of Cr.P.C. thereby
directing investigation to the police station, at Chakur and submit a
report within two months from the date of receipt of order, original
accused No.5 has preferred criminal writ petition No. 489 of 2007,
original accused Nos. 1 and 2 preferred criminal writ petition No. 495
of 2007 and original accused No.3 has preferred criminal writ petition
No. 535 of 2007.
2.
Brief facts giving rise to the present criminal writ petitions, are
as follows:-
a) Respondent No.1 original complainant has filed a private
complaint before the J.M.F.C. Chakur, bearing R.C.C. No. 124 of
2007, against the petitioners accused for having committed offences
punishable under Sections 471, 420, 418, 465, 466, 467 r.w. 34 of
I.P.C. It has alleged in the complaint that accused Nos. 1 and 2 in
the complaint are daughter-in-law and mother-in-law, interse, and
accused No.2 is ex-member of the Zilla Parishad. Accused No.2 was
working as Zilla Parishad member at the relevant time. It has further
alleged in the complaint that accused No.1 obtained such documents
and certificates and thereby succeeded in obtaining appointment
order as an Anganwadi Karyakarti, by managing the selection
committee.
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b) On 14.11.2005, an advertisement came to be issued by Child
Development Project Officer, Ahmedpur, Tq. Ahmedpur, District
Latur, thereby inviting applications for the post of Anganwadi
Karyakarti/Anganwadi Madatnis. In the said advertisement, certain
eligibility criteria was fixed for the desirous candidates, such as (i)
applicant must be permanent resident of Anganwadi area, (ii) the
applicant must be between the age of 18 to 44 years as on
30.11.2005 and (iii) the applicant must have passed 8 th standard
examination etc. The complainant was fulfilling the aforesaid
eligibility criteria and accordingly applied for the post of Anganwadi
Karyakarti. It has further alleged in the complaint that the accused
No.1 managed to obtain the appointment order in her favour as
Anganwadi Karyakarti in connivance with the Gram Sevak, Gram
Panchayat office, Sadegaon, Tq. and Dist. Parbhani, Gram Sevak
Gram Panchayat Office, Chakur and the Child Development Officer,
Chakur. It has also alleged in the complaint that for obtaining the
said appointment order, accused No.1 has submitted false
documents so as to fulfill the eligibility criteria in respect of her age,
marital status and place of residence etc. It has also alleged in the
complaint that accused No.2 by misusing her position, succeeded to
obtain the appointment order in favour of accused No.1 on the post
of Anganwadi Karyakarti. It has also alleged in the complaint that the
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accused No.1 has not completed her 18 years of age at the time of
filing application. Respondent No.1 complainant had made complaint
before the higher authorities as well as with the police at Chakur.
However, the police at Chakur did not accept the complaint. The
respondent complainant therefore filed complaint before the learned
Magistrate, Chakur.
c) The learned J.M.F.C. Chakur, heard the counsel for the
respondent complainant, perused the complaint and the documents
filed on record and observed that the offences alleged are cognizable
and the investigation through the police is necessary. Thus, the
learned J.M.F.C. Chakur, by impugned order dated 26.7.2007,
directed to send the copy of complaint to the police station, Chakur
for registration of the case and further directed the police at Chakur
to make investigation in the case, under Section 156(3) of Cr.P.C.
and to submit a report within two months from the date of receipt of
the said order. The learned Magistrate, has further directed to send
the copies of documents to the police station.
3. Learned counsel for the petitioners in all these writ petitions,
submits that the petitioner in writ petition No. 489 of 2007 and
petitioner in writ petition No. 535 of 2007 are the public servants and
were acting in discharge of their duties in respect of which the
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offence is alleged. Learned counsel further submits that the selection
committee constituted for the selection of Anganwadi
Karyakarti/Anganwadi Madatnis is consisting of 8 members, those
are (i) Member of Legislative Assembly of concerned constituency,
(ii) Member of Panchayat Samiti (Women), (iii) Sabhapati, Mahila Bal
Kalyan, Zilla Parishad, (iv) Taluka Health Officer, (v) Block
Development Officer, (vi) Child Development Project Officer (Member
Secretary), (vii) Zilla Mahila Child Development Officer and (viii)
Special District Social Welfare Officer. Learned counsel submits that
the said committee, after considering the eligibility criteria and on
verifying the record, selected accused No.1 for the said post. The
petitioner in criminal writ petition No. 489 of 2007 being Member
Secretary of the selection committee has taken care while verifying
the documents of the candidates applied for the said post. The
petitioner himself is not supposed to select the candidates for the
said post. Learned counsel submits that in pursuance to the
advertisement dated 14.11.2005, the procedure, as contemplated in
the relevant Government Resolution is duly followed and the minutes
of the meeting held on 15.4.2006 was also prepared. Learned
counsel submits that as per the proclamation issued by the Child
Development Officer, Ahmedpur, the age of the candidate on the
date of appointment should be between 18 to 44 years. The learned
Magistrate ought to have seen that the age of the selected candidate
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is more than 18 years on the date of appointment. At the time of
appointment of accused No.1, all original documents were verified
and considering the date of birth, as recorded in the original
certificate, accused No.1 was selected.
4. Learned counsel for the petitioners submits that as far as the
petitioners in criminal writ petition No. 489 of 2007 and writ petition
No. 535 of 2007 are concerned, prior sanction, as contemplated
under section 197 of Cr.P.C., ought to have been obtained before
directing investigation as provided under section 156(3) of Cr.P.C.
The question of sanction is paramount importance for protecting the
public servant, who has acted in good faith while performing his
official duty. This requirement of sanction is precondition for ordering
investigation under Section 156(3) of Cr.P.C., even at pre-
cognizance stage. Learned counsel submits that the learned
Magistrate has not applied his mind and mechanically directed the
police to carry out investigation by registration of crime on the basis
of the complaint filed before the Court.
5. Learned counsel submits that the petitioner original accused
No.1 has not submitted any false or fabricated documents before the
selection committee. The learned counsel has pointed out the
documents, such as copies of proclamation issued by the Child
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Development Officer, Integrated Child Development Scheme, Chakur
regrading inviting applications for the post of Anganwadi
Karyakarti/Anganwadi Madatnis, a chart indicating the marks given to
the respective candidates by the selection committee, the chart
obtaining information of the candidates appearing in the interview
and the copy of the order issued in favour of the petitioner original
accused No.1, dated 15.5.2006 and submits that the aforesaid
documents demonstrate that the allegations made in the complaint
are absurd, preposterous or concocted. The petitioner accused No.1
came to be selected on the post of Anganwadi Karyakarti as per her
merit.
6. The learned counsel for the petitioners submits that the
respondent original complainant has already taken recourse to the
provisions of Government Resolution dated 13.8.2014 and preferred
appeal with the same allegations about the faulty recruitment process
against the Chief Development Officer, Integrated Child development
Scheme, Panchayat Samiti, Chakur, Tq. Chakur, District Latur and
the petitioner original accused No.1, before the Divisional
Commissioner, Aurangabad Division, Aurangabad and the said
appeal is pending for consideration.
7. Learned counsel for the petitioners in order to substantiate his
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contentions, placed reliance on the judgments in the following
cases:-
I) Anil Kumar and others vs. M.K. Aiyappa and others,
reported in 2013 (10) SCC 705,
ii) Dr. Subramanian Swamy vs. Dr. Manmohan Singh and
another, reported in 2012 (3) SCC 64,
iii) General Officer Commanding
ig vs. C.B.I. and another,
reported in 2012 (2) BCR (Cri.) 623,
iv) State of Uttar Pradesh vs. Paras Nath Singh, reported in
2009 (6) SCC 372.
v) Shaikh Shakil Ibrahim and others vs. State of Maharashtra
and another, decided by this Court dated 23.11.2016 in
criminal application No. 1366 of 2005.
8. Learned counsel for respondent No.1 original complainant
submits that in the advertisement dated 14.11.2005, certain eligibility
criteria was fixed for the desirous candidates, however, though
petitioner No.1 in criminal writ petition No. 495 of 2007 had not
fulfilled the eligibility criteria, in respect of her age, marital status and
place of residence, her application was accepted and further she was
appointed as an Anganwadi Karyakarti for Chakur. The petitioner in
writ petition No. 489 of 2007, who was then Child Development
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officer had played important role and in collusion with other accused
persons, facilitated the said illegal appointment. In the advertisement
dated 14.11.2005, clause 2 of the advertisement was framed in such
a manner so as to accommodate petitioner No.1 in criminal writ
petition No. 495 of 2007. Even though the petitioner Manisha was
less than 18 years of age, the said clause No.2 indicates that the
applicant must be in between 18 to 44 years of age on the date of
appointment. The said clause was inserted only in respect of
advertisement for Chakur, Tq. Chakur, District Latur and this clause
does not find place in the similar advertisements, pertaining to other
districts. The petitioner Manisha has prepared false and bogus
certificates about her age, martial status and her residence to
become eligible and for being considered to be appointed as
Anganwadi Karyakarti for village Chakur. Learned counsel submits
that the petitioners in writ petition No. 495 of 2007 are closely related
to each other, as they are daughter-in-law and mother-in-law, interse.
The petitioner No.2 Smt. Mahananda Ghalapure, who is original
accused No.2, was Ex-Member of the Zilla Parishad and thus, the
petitioner Manisha-original accused No.1 obtained the said
documents and certificates and accordingly succeeded in obtaining
the appointment order.
9. Learned counsel for respondent No.1 submits that the act
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complained is not a part of official duty to be performed by the
petitioner in writ petition No. 489 of 2007 and 535 of 2007. The
learned Magistrate has directed investigation as provided under
Section 156(3) of Cr.P.C. and it is pre-cognizance stage and thus,
the point of sanction, as provided under Section 197 of Cr.P.C. is not
required to be considered at this stage. The probable defence of the
accused is not required to be considered at this stage and the
documents, relied upon by the petitioners accused in their defence,
may not be relied upon at this stage. There is no reasonable nexus
between the commission of offence and the discharge of official duty
and therefore, question of invoking Section 197 of Cr.P.C. does not
arise. Learned counsel submits that the respondent original
complainant has preferred an appeal before the Divisional
Commissioner, Aurangabad Division, Aurangabad and submitted
before the authorities the genuine documents as against the false
documents produced by the petitioner Manisha, during the aforesaid
recruitment process and secured the appointment in collusion with
other petitioners-accused.
10. Learned counsel for the respondent-original complainant, in
order to substantiate his submissions, placed reliance on the
following cases:-
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I) Mahesh Chaudhary vs. State of Rajasthan and another,
reported in (2009) 4 SCC 439,
ii) Punjab State Warehousing Corporation vs. Bhushan
Chander and Anr. reported in 2015 SCC (On line) SC 632,
iii) Raghunath Anant Govilkar vs. State of Maharashtra and
others, reported in (2008) 11 SCC 289 and
iv) State of Uttar Pradesh vs. Paras Nath Singh, reported in
(2009) 6 SCC 372
11. I have also heard the learned A.P.P. for the respondent-State.
12. On careful perusal of advertisement dated 14.11.2005, it
appears that certain eligibility criteria is mentioned in the
advertisement for desirous candidates and the prominent amongst
them are that (i) applicant must be permanent resident of Anganwadi
area, (ii) the applicant must be between the age of 18 to 44 years as
on 30.11.2005 and (iii) the applicant must have passed 8 th standard
examination etc. A reference of letter dated 28.10.2005, issued by
the Chief Executive Officer, Zilla Parishad, Latur is given in the said
advertisement and it appears that the advertisement has been
published inviting applications from the eligible candidates in terms of
the said letter.
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13. The respondent original complainant has alleged that the
petitioner-accused Manisha has submitted false documents in
respect of her age, marital status and place of residence so as to
fulfill the eligibility criteria. It has also alleged that even though the
petitioner Manisha was below the age of 18 years, her application
was considered with the aid of clause 2 of the said advertisement.
Learned counsel for the respondent complainant has vehemently
submitted that the said clause 2 was inserted in the advertisement to
accommodate the petitioner Manisha and no such clause was
appearing in the similar advertisements published in other districts.
Learned counsel for the respondent complainant however, failed to
place on record any document thereby indicating that such clause
was not appearing in the advertisements inviting applications for
similar post in other districts.
14. Learned counsel for the petitioner in writ petition No. 489 of
2007 submits that there was selection committee constituted for
selection of Anganwadi Karyakarti consisting of eight members,
those are (i) Member of Legislative Assembly of concerned
constituency, (ii) member of Panchayat Samiti (Women), (iii)
Sabhapati, Mahila Bal Kalyan, Zilla Parishad, (iv) Taluka Health
Officer, (v) Block Development Officer, (vi) Child Development
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Project Officer (Member Secretary), (vii) Zilla Mahila Child
Development Officer and (viii) Special District Social Welfare Officer.
The petitioner in writ petition No. 489 of 2007 has also produced on
record the list of members of the selection committee present for
conducting interview of the eligible candidates and also produced on
record the minutes of meeting of said selection committee recorded
after interview process was over. The petitioner accused in writ
petition No. 489 of 2007 has also produced on record a chart of
eligible candidates appeared for the post of Anganwadi Karyakarti for
village Chakur and the marks allotted to them by the respective
members of selection committee. The petitioner accused has also
produced on record the appointment order issued in favour of the
petitioner Manisha on 15.5.2006. Learned counsel for the
respondent complainant has vehemently submits that the Court can
not look into the material produced by the defence at this stage and
same can be considered during the course of trial.
15. In the case of Rukmini Narvekar v. Vijaya Satardekar and
others, reported in AIR 2009 SC 1013, in para 9 and 29 of the
judgment, the Supreme court has made following observations:-
Per Altamas Kabir, J.:-
"9. In my view, therefore, there is no scope for the accused to
produce any evidence in support of the submissions made on his
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behalf at the stage of framing of charge and only such material as
are indicated in Section 227 Cr.P.C. can be taken into
consideration by the learned Magistrate at that stage. However, in
a proceeding taken therefrom under Section 482 Cr.P.C. the
Court is free to consider material that may be produced on behalf
of the accused to arrive at a decision whether the charge as
framed could be maintained. This, in my view, appears to be the
intention of the legislature in wording Sections 227 and 228 the
way in which they have been worded and as explained in
Debendra Nath Padhi's case (supra) by the larger Bench to which
the very same question had been referred."
Per Markandey Katju, J. :-
"29. In our opinion, therefore, it cannot be said as an absolute
proposition that under no circumstances can the Court look into
the material produced by the defence at the time of framing of the
charges, though this should be done in very rare cases, i.e. where
the defence produces some material which convincingly
demonstrates that the whole prosecution case is totally absurd or
totally concocted. We agree with Shri Lalit that in some very rare
cases the Court is justified in looking into the material produced by
the defence at the time of framing of the charges, if such material
convincingly establishes that the whole prosecution version is
totally absurd, preposterous or concocted."
16. In the case of Mahesh Chaudhary vs. State of Rajasthan
and another (supra), it is observed that the documents relied on by
the accused in their defence may not be relied on except in very
exceptional circumstances.
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17. In the case of Harshendra Kumar D. Vs. Rebatilata Koley
and others, reported in (2011) 3 SCC 351, the Supreme Court in
para 25 of the judgment has made following observations:-
"25. In our judgment, the above observations cannot be read to
mean that in a criminal case where trial is yet to take place and the
matter is at the stage of issuance of summons or taking cognizance,
materials relied upon by the accused which are in the nature of
public documents or the materials which are beyond suspicion or
doubt, in no circumstance, can be looked into by the High Court in
exercise of its jurisdiction under Section 482 or for that matter in
exercise of revisional jurisdiction under Section 397 of the code. It is
fairly settled now that while exercising inherent jurisdiction under
Section 482 or revisional jurisdiction under Section 397 of the Code
in a case where complaint is sought to be quashed, it is not proper
for the High Court to consider the defence of the accused or embark
upon an enquiry in respect of merits of the accusations. However, in
an appropriate case, if on the face of the documents - which are
beyond suspicion or doubt - placed by the accused, the
accusations against him cannot stand, it would be travesty of justice
if the accused is relegated to trial and he is asked to prove his
defence before the trial court. In such a matter, for promotion of
justice or to prevent injustice or abuse of process, the High Court
may look into the materials which have significant bearing on the
matter at prima facie stage."
It is thus clear that in appropriate case, if on the face of the
documents - which are beyond suspicion or doubt - placed by the
accused, the accusations against him cannot stand, it would be
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travesty of justice if the accused is relegated to trial and he is asked
to prove his defence before the trial court.
18. In the case of D.T. Virupakshappa Vs. C. Subhash, reported
in (2015) 12 SCC 231, the Supreme Court in para 6 of the said
judgment has referred the case of Omprakash and others vs. State
of Jharkhand, through the Secretary, Department of Home,
Ranchi 1 and another and quoted paragraphs 32 and 41 of the said
judgment, which read as under:-
"32. The true test as to whether a public servant was acting or
purporting to act in discharge of his duties would be whether the
act complained of was directly connected with his official duties or
it was done in the discharge of his official duties or it was so
integrally connected with or attached to his office as to be
inseparable from it (K. Satwant Singh). The protection given under
Section 197 of the Code has certain limits and is available only
when the alleged act done by the public servant is reasonably
connected with the discharge of his official duty and is not merely
a cloak for doing the objectionable act. If in doing his official duty,
he acted in excess of his duty, but there is a reasonable
connection between the act and the performance of the official
duty, the excess will not be a sufficient ground to deprive the
public servant of the protection (Ganesh Chandra Jew). If he
above tests are applied to the facts of the present case, the police
must get protection given under Section 197 of the Code because
the acts complained of are so integrally connected with or
attached to their office as to be inseparable from it. It is not
possible for us to come to a conclusion that the protection granted
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under Section 197 of the Code is used by the police personnel in
this case as a cloak for killing the deceased in cold blood.
(Emphasis supplied)
41. The upshot of this discussion is that whether sanction is
necessary or not has to be decided from stage to stage. This
question may arise at any stage of the proceeding. In a given
case, it may arise at the inception. There may be unassailable
and unimpeachable circumstances on record which may establish
at the outset that the police officer or public servant was acting in
performance of his official duty and is entitled to protection given
under Section 197 of the Code. It is not possible for us to hold
that in such a case, the court cannot look into any documents
produced by the accused or the public servant concerned at the
inception. The nature of the complaint may have to be kept in
mind. It must be remembered that previous sanction is a
precondition for taking cognizance of the offence and therefore,
there is no requirement that the accused must wait till the
charges are framed to raise this plea. ..."
19. In the above cited case, the question of sanction whether is
necessary or not arise at the inception and there were unimpeachable
circumstances on record, which may establish at the outset that the
public servant was acting in performance of his official duty and is thus
entitled to protection given under Section 197 of Cr.P.C. It has also
observed in the said case by the Supreme Court that it is not possible
for the Court to hold that in such a case, the Court cannot look into any
documents produced by the accused or the public servant concerned at
the inception.
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20. In the instant case, on perusal of the documents, as referred to
in the foregoing paragraphs, produced by the petitioners-accused, it
appears that there is reasonable nexus between the act complained
against the petitioners in writ petition Nos. 489 of 2007 and the writ
petition No. 535 of 2007 and the official duties performed by them as
the public servants. On perusal of the consolidated mark sheet of
the eligible candidates, being interviewed by the selection committee
and the marks allotted to them by each and every member of the
selection committee, it appears that the candidates, who secured
highest marks seems to have been given the appointments.
Furthermore, it also appears that besides the petitioner Manisha, the
other candidates, less than 18 years of age, are also considered and
accordingly interviewed.
21. Needless to say that the Magistrate, who is otherwise
competent to take cognizance, without taking cognizance under
Section 190 of Cr.P.C. may direct investigation under Section 156(3)
of Cr.P.C. The Magistrate, who is empowered under Section 190 to
take cognizance alone, has power to refer the private complaint to
police station under Section 156(3) of Cr.P.C. In the above
mentioned legal situation, whether requirement of sanction, as
contemplated under Section 197 of Cr.P.C. is precondition or not, for
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ordering investigation under Section 156(3) of Cr.P.C., even at pre
cognizance stage, is a question raised by learned counsel for the
respondent original complainant. In the case of Anil Kumar and
others vs. M.K. Aiyappa and another (supra), in para 13 of the
judgment, the Supreme Court has made the following observations:-
"13. Learned senior counsel appearing for the appellants raised
the contention that the requirement of sanction is only procedural
in nature and hence, directory or else Section 19(3) would be
rendered otiose. We find it difficult to accept that contention. Sub-
section (3) of Section 19 has an object to achieve, which applies in
circumstances where a Special Judge has already rendered a
finding, sentence or order. In such an event, it shall not be
reversed or altered by a court in appeal, confirmation or revision on
the ground of absence of sanction. That does not mean that the
requirement to obtain sanction is not a mandatory requirement.
Once it is noticed that there was no previous sanction, as already
indicated in various judgments referred to herein above, the
Magistrate cannot order investigation against a public servant
while invoking powers under Section 156(3) Cr.P.C. The above
legal position, as already indicated, has been clearly spelt out in
Paras Nath Singh and Subramanium Swamy cases (supra)."
In this case, the Supreme Court has given reference to its
earlier judgments rendered in the following cases (i) Dr.
Subramanian Swamy vs. Dr. Manmohan Singh and another (supra),
(ii) General Officer Commanding vs. C.B.I. and another (supra) and
(iii) State of Uttar Pradesh vs. Paras Nath Singh (supra).
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22. In the case of State of Uttar Pradesh vs. Paras Nath Singh
(supra) the Supreme Court in para 6 of the judgment has made the
following observations:-
"6. .............And the jurisdiction of a Magistrate to take cognizance
of any offence is provided by Section 190 of the Code, either on
receipt of a complaint, or upon a police report or upon information
received from any person other than a police officer, or upon his
knowledge that such offence has been committed. So far as public
servants are concerned, the cognizance of any offence, by any
court, is barred by Section 197 of the Code unless sanction is
obtained from the appropriate authority, if the offence, alleged to
have been committed, was in discharge of the official duty. The
section not only specifies the persons to whom the protection is
afforded but it also specifies the conditions and circumstances in
which it shall be available and the effect in law if the conditions are
satisfied. The mandatory character of the protection afforded to a
public servant is brought out by the expression, 'no court shall take
cognizance of such offence except with the previous sanction'. Use
of the words 'no' and 'shall' makes it abundantly clear that the bar
on the exercise of power of the court to take cognizance of any
offence is absolute and complete. The very cognizance is barred.
That is, the complaint cannot be taken notice of. According to
Black's Law Dictionary the word 'cognizance' means 'jurisdiction'
or 'the exercise of jurisdiction' or 'power to try and determine
causes'. In common parlance, it means taking notice of. A court,
therefore, is precluded from entertaining a complaint or taking
notice of it or exercising jurisdiction if it is in respect of a public
servant who is accused of an offence alleged to have been
committed during discharge of his official duty."
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23. In the case of General Officer Commanding vs. C.B.I. and
another (supra), the issue of sanction is summarized to the effect
that the question of sanction is of paramount importance for
protecting the public servant, who has acted in good faith while
performing his duty, in order that the public servant may not be
unnecessarily harassed on a complaint of unscrupulous person. It is
obligatory on the part of the executive authority to protect him. If the
law required sanction, and the court proceeds against the public
servant without sanction, the public servant has a right to raise the
issue of jurisdiction as entire action may be rendered void ab-initio.
24. On careful perusal of the complaint, I find that the allegations
have been made against petitioner Manisha and her mother-in-law
i.e. the petitioner No.2 in writ petition No. 495 of 2007. It has also
alleged in the complaint that the petitioner Manisha has prepared
false documents in respect of her age, marital status and the place of
residence, to fulfill the eligibility criteria. The learned counsel for the
respondent original complainant has preferred an appeal before the
Divisional Commissioner, Aurangabad and same is pending. It has
been pointed out in the said appeal that the genuine documents
pertaining to the age, marital status and residence of the petitioner-
accused Manisha, un-mistakenly point out that she has secured the
crwp489.07-
said appointment by submitting false documents during the
recruitment process. Thus, the allegations made as against the
petitioners in criminal writ petition No. 495 of 2007 certainly require
investigation as directed by the Magistrate under the provisions of
section 156 (3) of Cr.P.C. However, I find reasonable nexus
between the act complained against the petitioners in writ petition
No. 489 of 2007 and 535 of 2007 and discharging of their official
duties. Both the petitioners are therefore entitled for the protection,
as provided under Section 197 of Cr.P.C.
25. On careful consideration of the cases relied upon by the
learned counsel for the respondent-original complainant, it appears
that with regard to the facts and circumstances of those cases, it is
observed that there is no reasonable connection between
commission of offence and discharge of official duty.
26. In the case of Punjab State Warehousing Corporation vs.
Bhushan Chander and another (supra), relied upon by learned
counsel by the respondent-original complainant, the Supreme Court
observed that no official can put forth a claim that breach of trust is
connected with his official duty. Therefore, no sanction is needed to
launch the prosecution for the offence punishable under Section 409
of I.P.C. In the facts of the said case, the Supreme Court has made
crwp489.07-
the observations by considering the charges levelled against the
accused in that case.
27. In view of the above discussion and the ratio laid down by the
Supreme Court in the various cases, as referred above, I proceed to
pass the following order:-
ig ORDER
I. Criminal writ petition No. 489 of 2007 and criminal writ
petition No. 535 of 2007 are hereby allowed in terms of
prayer clauses "C" therein. Rule made absolute in the said
writ petitions.
II. Criminal writ petition No. 495 of 2007 is hereby dismissed.
Rule discharged in the said writ petition.
III. Criminal writ petitions are accordingly disposed of.
( V. K. JADHAV, J.)
rlj/
