VERY IMPORTANT POINT
An accused against whom the cognisance of offence has been taken by the Magistrate, is not debarred from producing the relevant documentary materials which can be looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority u/s 197 of the Code of Criminal Procedure.

Headnote:(i) Criminal Procedure Code, 1973-Section 197-Requirement of sanction under-Stage at which an accused against whom cognisance of offence has been taken by Magistrate can lead evidence in support of his defence-Magistrate on basis of a complaint issued process for appearance of accused on being satisfied that there is sufficient ground for proceeding-Sanction u/s 197(1) Cr.P.C. pleaded as a bar for taking cognisance-Accused taking plea that offence alleged to have been committed by him was in discharge of his official duty and that Court has no power to take cognisance except with previous sanction of Government as required u/s 197(1) of the Code-Whether Magistrate would be required to decide the plea on materials on record then existed or accused can produce relevant material to establish necessary ingredients for invoking Section 197(1) of the Code?-Held, there should not be any bar for the accused producing relevant documents and materials which will be ipso facto admissible, for adjudication of question of requirement of sanction-Matter being one dealing with jurisdiction of court to take cognisance-Accused would be entitled to produce relevant material without formal proof-Held, on facts, alleged acts on part of respondents were purported to be in exercise of official duties.
       Held : 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 concerned Government in a case where the acts complained of are alleged to have been committed by 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. (Para 7)
       It would be logical to hold that the matter being one dealing with the jurisdiction of the court to take cognisance, the accused would be entitled to produce the relevant and material documents which can be admitted into evidence without formal proof, for the limited consideration of the court whether the necessary ingredients to attract Section 197 of the Code have been established or not. The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the court to take cognisance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognisance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not bebarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority. (Para 8)
       (ii) Criminal Procedure Code, 1973-Section 197-Sanction-Question of applicability of Section 197 and consequential order of ouster of jurisdiction is genetically different from plea of accused that averments in complaint do not make out an offence. (Para 8)

JUDGMENT

G.N. Ray, J.-Leave granted. Heard learned counsel for the parties.

2. The order of the Bombay High Court (Aurangabad Bench) dated September 10, 1996 passed in Criminal Writ Petition No. 414 of 1993 and Criminal Revision Application No. 16 of 1994, is impugned in these appeals. It will be appropriate at this stage to indicate in brief the background facts :-

(a) The appellant, at material point of time, was the President of the Jalgaon Municipality. The said Jalgaon Municipality took a decision to demolish the unauthorised encroachment (tapri). On the basis of such decision of the Municipality, the unit of anti Encroachment Department of Municipality had gone to demolish the unauthorised encroached construction on July 3, 1993. One Shri Sita Ram @ Baban Baheti was also one of the Councillors of Jalgaon Municipality. The said Councillor however, remained present at the site and tried to stop the attempt of the Municipality to demolish the unauthorised tapri. The respondent No. 1 Shri Pandey Ajay Bhushan, was Collector and District Magistrate of Jalgaon and respondent No. 2 Shri Dilip G. Shrirao, was Additional Superintendent of Police, Jalgaon, respondent No. 3, Shri Prakash Mahajan, was Sub-Divisional Magistrate, Jalgaon, and respondent No. 4, Shri D.S. Jog was Superintendent of Police, Jalgaon, at the relevant time. The said respondent Nos. 1 to 4 were personally present at the site and prevented the staff of the Municipality to demolish the tapri.

(b) The appellant was away from Jalgaon and having returned to Jalgaon in the evening, came to know that the respondents were not allowing the demolition of the unauthorised tapri. The appellant went to the spot and protested against the said action of the respondents in preventing the Municipality staff from discharging their statutory obligation to demolish unauthorised construction. The respondents, however, did not accede to the protest and persuasion of the appellant. On the contrary, the respondents physically assaulted the appellant, his driver and some other including the councillors present at the spot. It has been alleged by the appellant that the respondent No. 4 put a stick on the chest of the appellant and gave a violent push. The respondent No. 2 caught hold of the neck of the appellant and threatened him with his revolver. The respondent No. 3 had given a stick blow on the person of the appellant. The respondent No. 1 also kicked and abused him. The appellant and his supporters including the driver and some of the councillors sustained injuries on account of the said high handed action of the respondents.

(c) On the next day i.e. on July 4, 1993, the respondent No. 3 issued prohibitory orders under Section 144 of Criminal Procedure Code by declaring that no demolition work could be done till July 20, 1993. On July 6, 1993 respondents issued an order suspending the action of the Municipality in removing the encroachment. On the same day, another order was issued by the respondents to the effect that no force would be used by the Municipality.

(d) The Jalgaon Municipality challenged the prohibitory orders issued under Section 144 of Cr.P.C. by filing a Writ Petition before Aurangabad Bench of Bombay High Court being Writ Petition No. 261 of 1993 on July 7, 1993. Such Writ Petition was, however, withdrawn on July 8, 1993. On July 18, 1993, the appellant filed three writ petitions being Writ Petition Nos. 2149, 2150 and 2151 of 1993 seeking various reliefs against certain actions of the State Government. Writ Petition No. 2149 of 1993 was filed by the appellant challenging the order restraining the Municipality from using any force in removing the unauthorised construction. Writ Petition No. 2151 of 1993 was filed for prohibiting the State Government from issuing any order of supercession of the Jalgaon Municipality. Such Writ Petition was filed because the appellant and other councillors had apprehended that on account of political vendatta, the persons in power would

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1997 Supreme(SC) 1540

Cases Referred (8)