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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
T.K. Chandrashekhara Das, J.
Anil Shet Gaonkar.... Petitioner.
Versus
Abdulla Khan Karol and another.... Respondents.
Criminal Revision Application No. 3 of 1995, decided on 17-2-1995.
Advocates appeared :
S.D. Lotlikar, for the petitioner.
N. Sardessai, for respondent No. 1.
G.U. Bhobe, P.P., for respondent No. 2.
Needless to say that Section 197 of Criminal Procedure Code is mandatory. The conditions prescribed under that section is a prerequisite for taking cognizance of a criminal complaint against a Government servant. If at all, while discharging his official duty a Government commits an offence, in all probability the Government servant in such circumstances would have committed the offence or do some excesses, even then prosecution will lie only if prior sanction from appropriate authority is obtained. 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 under Section 197 amounts to a 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 the public interest. Therefore, the sanction under Section 197, Criminal Procedure Code is mandatory, without which the complaint against a Government servant becomes ab initio liable to be dismissed.
Relying on the Supreme Court decision, the learned Judge in that case even went to the extent of holding that even if in the discharge of his duties or official function an officer of the Government has done any assesses, does not itself dispense with the legal requirements to obtain sanction of the Government before prosecuting that officer. There it is clear in this case the order under Revision is liable to be set aside for no offence could have been taken cognizance of by the learned Magistrate without the sanction of the Government. Admittedly no such sanction has been obtained before filing the complaint before the Magistrate.
Section 397(2) and 482-Order of the Metropolitan Magistrate summoning the accused for offence under Section 338 r/w Section 34, I.P.C.-Is not an interlocutory order.
The impugned order is not an interlocutory order. It is an order which affects the rights of the accused (petitioner). Assuming that this order is quashed, the proceedings against the petitioner would terminate.
In Courts view the impugned order being not interlocutory in nature is revisable and the proper course for the petitioner would be to approach the concerned Sessions Judge by preferring a Criminal Revision Application against the impugned order.
Section 482-Government servant-Complaint against without obtaining sanction-Magistrate taking cognizance of and issuing process-Rejection of discharge application of accused-High Court entitled to interfere with sent order under Section 482, Cr. P.C: assuming that order in nature interlocutory.
However, assuming for argument sake that, it is an interlocutory order, even then this Court has jurisdiction to entertain this case using the inherent power of this Court under Section 482 of Criminal Procedure Code. As discussed earlier by Court, it feels that it is a clear case of abuse of process while the complaint of the respondent No. 1 discloses that the Government servant alleged to have committed the offence and he is styled as an accused in the complaint, the Magistrate without applying his mind has taken cognizance of the complaint which will definitely rope in the term of the abuses of the process of Court. This in such circumstances has got every power to interfere with such an order even if it is termed as an interlocutory order.
2. The petitioner who is the accused in Criminal Case No. 63/P/1991 on the file of the Judicial Magistrate, F.C., Sattari has filed this petition under section 397 of Cr.P.C.
3. The petitioner on receipt of summons from the Magistrate filed a petition requesting the Magistrate to discharge him from the case mentioned above. The Magistrate refused his prayer by his Order dated 7-12-1994. Against that order the petitioner approached this Court by filing this revision petition.
4. The facts of the case in short is as follows :---
The petitioner is a Range Forest Officer at Sattari at the relevant time. He had to book a case against the first respondent along with eight other persons suspecting them to have committed some offences under the Indian Forest Act. In the process of the investigation of that forest case the petitioner had to call the respondent to his office on 14-9-1991 at 10.30 a.m. and arrested him and released him after necessary interrogation on bail at 10.00 a.m. on the next day. The first respondent thereupon filed a complaint under section 200 Cr.P.C. against the petitioner alleging that the petitioner had called him to his office and made him to remain in his office unnecessarily for 24 hours without permitting him to go anywhere and thus alleged to have committed offences under sections 341, 342, 348 and 349 of I.P.C. The Magistrate after taking cognizance of the offences, issued process to the petitioner. On his appearance, the petitioner filed a petition before the Magistrate on 8-7-1994, which is at page 11 of the paper book, praying that he may be discharged as no offence has been disclosed to have been committed by him. He also pleaded that no sanction has been obtained under section 197 of Cr.P.C. before launching prosecution against him and therefore he is entitled to be discharged. The Magistrate by the impugned order declined to discharge the petitioner, holding that there is enough evidence on record against the accused/petitioner to issue process. The Magistrate seems to have disposed of the plea of the petitioner under section 197 Cr.P.C. on the premises that the offences alleged against him were purportedly not committed by him in his official capacity.
5. The learned Counsel for the petitioner mainly based his argument on two grounds, namely (i) no offence has been disclosed against him in the complaint; and (ii) no sanction has been obtained under section 197 Cr.P.C. Elaborating his argument, learned Counsel for the petitioner submits that being a Range Forest Officer, he is vested with the powers of seizure, arrest and release in respect of persons and property involved in the offence. He took me through the provisions of the Indian Forest Act, 1927 particularly sections 50, 52, 62, 64 and also 65. These provisions make it amply clear that those powers of a Range Forest Officer like the petitioner are to be exercised under the Act in discharging his official duty. Section 54 of the Indian Forest Act gives power to a forest officer to arrest a person without a warrant. So also section 65 gives power to the forest officer to release on bond a person arrested and section 68 gives a forest officer power to compound an offence. Before the Magistrate the petitioner categorically stated that he was doing his official duty in calling the first respondent to his office as he was suspected to have committed a forest offence and a case has been registered as Criminal Case No. 22/N/91 against the respondent and eight others. In fact the complaint filed by the respondent before the Magistrate clearly states that on 14-9-1991 at 10.30 a.m. the petitioner called the respondent No. 1 in his office and he further alleged that after attending his office the respondent warned him not to leave the office without allowing him to inform his family members and ultimately he alleges that he was released on 15-9-1991 at 10.00 a.m. and the compl
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