Rajasthan High Court - Jodhpur
Yogesh vs State on 12 January, 2023
Bench: Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3413/2020
Yogesh S/o Shri Purshottam Acharya, Aged About 43 Years, By
Caste Brahmin, R/o Behind Police Station Kotwali, Barmer.
----Petitioner
Versus
State, Through P.p.
----Respondent
For Petitioner(s) : Mr. CS Kotwani.
For Respondent(s) : Mr. Mahipal Bishnoi, PP.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
12/01/2023
Learned Public Prosecutor fairly submits that the controversy
involved in this petition is no more res-integra, as it is decided by
this Court in Yogesh Acharya Vs. State of Rajasthan (S.B.
Criminal Misc. Petition No.325/2021) decided on 28.07.2022.
The order dated 28.07.2022 reads as under:-
"1. Petitioner has preferred this misc. petition under
Section 482 of Cr.P.C. for quashing of order dated
06.03.2020, passed by learned Chief Judicial Magistrate,
Barmer as well as proceedings pursuant thereto.
2. Learned counsel for the petitioner as well as
learned Public Prosecutor submit that the matter is
squarely covered by the judgment rendered by a
coordinate Bench of this Court in Devi Dan Vs. State of
Rajasthan, in criminal misc. petition No.2177/2013,
decided on 10.10.2014
3. The coordinate Bench of this Court on
10.10.2014 has passed the following order in Devi Dan
Vs. State (Supra):-
"The next argument advanced by the
learned counsel for the petitioner was that the
petitioner's prosecution in absence of a valid
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prosecution sanction for acts or omissions done
by him during bona fide discharge of official duty
as S.H.O. of the Police Station Swaroopganj is not
permissible. At the outset, it may be noted that
the protective umbrella of Section 197 Cr.P.C. is
available only to such public servants who are not
removeable save by or with the sanction of the
State Government. As per the Rajasthan Police
Subordinate Service Rules, 1989 the appointing
authority of the officers upto the rank of
Inspectors/Company Commanders is Director
General cum Inspector General of Police. For the
post of Sub Inspectors/Platoon Commanders, the
appointing authority is Dy. I.G. of Police (Hqrs.)
or an officer of the equivalent rank. It is admitted
in para no. 1 of the misc. petition that the
petitioner was working as a sub inspector at the
relevant time and was posted as S.H.O.
Swaroopganj. Thus, as the petitioner was an
officer in the rank of sub inspector, ipso facto, the
protective umbrella of Section 197 would not be
applicable to him straight off. The State
Government by a notification dated July 31, 1974
has extended the benefit of the Section 197(3)
Cr.P.C. to the police officials of all ranks charged
with the maintenance of public order, where-ever
they may be serving. Undoubtedly, an officer
posted as Station House Officer of a Police Station
would be a police official charged with
maintenance of public order within the area of the
police station concerned. The Hon'ble Apex Court
in the case of Rizwan Ahmed Javed Shaikh & Ors.
Vs. Jammal Patel & Ors. reported in 2001 Cr.L.R.
(SC)- 542 while dealing with a similar notification
issued by the State of Maharashtra held that the
police officers do discharge duties relating to
maintenance of public order in the wider sense
and thus extended the benefit of Section 197
Cr.P.C. to the police officers concerned. In the
case of Ram Swaroop Sharma Vs. State of
Rajasthan reported in 2007(5) W.L.C. (Raj.)-796
the concerned police officer while working in the
capacity of S.H.O. of the concerned Police Station
sent a report to the Court under Section 202
Cr.P.C. purportedly using derogatory language.
The trial court took cognizance against the
concerned officer for the offence under Section
500 IPC. The order taking cognizance was
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challenged on the ground of lack of sanction. This
Court held that the report was sent by the police
officer in discharge of his official functions. It was
also held that the S.H.O. of the Police Station is
definitely an officer charged with the maintenance
of public order and accordingly, the benefit of
notification dated 31.7.1974 was extended to the
police officer and his prosecution was quashed in
absence of the requisite sanction under Section
197 Cr.P.C. The case at hand also involves similar
facts and circumstances. The S.H.O. of a police
station discharges his official duties while
registering or failing to register a first information
report. Non registration of the F.I.Rs. after
receiving the complaint under Section 156(3)
Cr.P.C. from the Court was definitely an
act/omission done by the S.H.O. concerned while
discharging his official duties. Thus, the petitioner
having been posted as the S.H.O. of P.S.
Swaroopganj at the relevant time would be
entitled to the protective umbrella of Section 197
Cr.P.C. Cognizance could not have been taken
against him for offences under Sections 166, 176,
186 & 188 IPC committed by him during the
discharge of official duties, without obtaining
prosecution sanction. Admittedly, in the case at
hand, no prior prosecution sanction was taken
before taking cognizance against the petitioner
for the above offences vide order dated
25.10.2012. Resultantly, the misc. petition
deserves to be and is hereby allowed. The
impugned order dated 25.10.2012 whereby the
learned C.J.M., Sirohi took cognizance against the
petitioner for the offences under Sections 166,
176, 186 and 187 I.P.C. is quashed."
4. It is admitted by learned Public Prosecutor in
this case also that no prior prosecution sanction was taken
before taking cognizance against the petitioner.
5. Consequently, this misc. petition deserve to be
allowed. The impugned order dated 06.03.2020 passed by
learned Chief Judicial Magistrate, Barmer, in criminal Case
No.327/2016 as well as entire criminal proceedings
pending before the learned Court below qua the petitioner
is quashed and set aside.
6. All pending applications also stand disposed of
accordingly."
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In light of such categorical statement made by learned Public
Prosecutor, the present petition is allowed in terms of the order
passed by this Court in Yogesh Acharya (Supra).
Accordingly, the impugned order dated 13.02.2020 passed
by learned Additional Sessions Judge, No.1, Barmer in Criminal
Revision No.35/2017 and order dated 28.03.2016 passed by
learned Chief Judicial Magistrate, Barmer, in criminal Case
No.197/2016 as well as entire criminal proceedings pending before
the learned Courts below, qua the petitioner, is quashed and set
aside.
All pending applications also stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI), J.
114-/Jitender//-
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