The judgment establishes the importance of sanction under Section 197 of the Code of Criminal Procedure for prosecuting government servants and emphasizes the need to establish the intention to harm reputation in defamation cases.

1. Heard learned counsel appearing for the applicant and learned Additional Public Prosecutor for respondent No.2. The learned counsel for respondent No.1 is absent. He was absent yesterday also. The notice issued to respondent No.1 by order dated 18-10-2016 clearly indicated that it is for final disposal at the admission stage, hence the matter is taken up for final hearing.

2. The present applicant is the original accused. The original complainant i.e. respondent No.1 filed private complaint Summary Criminal Case No.39 of 2014 against the present applicant contending that, the applicant/accused has committed offence punishable under Section 500 of the Indian Penal Code. I would like to address parties hereinafter by their nomenclature in the original complaint.

3. The complainant was working as Sub-Divisional Officer with Bharat Sanchar Nigam Limited (B.S.N.L.) Office at Aurangabad. The accused is also serving with the same institution and he was the Divisional Engineer (Vigilance). It is the contention of the complainant that he has gained reputation because of his work. His family members have also earned reputation in the society. Accused started harassing him on trifle grounds since 2012. He used to defame him by leveling false allegations. He had given threat to suspend the complainant on the allegation that, he has demanded amount of Rs.2,00,000/-. The accused had conspired with the union leader and secretary in order to defame the complainant. In fact a notice defaming the complainant was displayed by the accused on 07-12-2012 on the notice board of the office, and thereby it is the contention of the complainant that he has committed offence punishable under Section 500 of Indian Penal Code.

4. After the presentation of the complaint, the verification was recorded. After perusing the complaint, verification and perusal of the documents, the learned J.M.F.C., Aurangabad issued process against the accused for the offence punishable under Section 500 of Indian Penal Code. After the accused appeared in the matter, he had filed a complaint for discharge at exh.19. The said application came to be rejected on 1st January, 2015. The accused carried the matter forward and challenged the order below exh.19 before learned Additional Sessions Judge, Aurangabad in Criminal Revision No. 57 of 2015. The said revision came to be dismissed on 30-07-2016.

5. The accused by invoking the inherent powers of this Court under Section 482 of the Criminal Procedure Code has filed present application, for quashing the complaint.

6. It has been submitted on behalf of the applicant that, the prima facie perusal of the complaint would show that the ingredients of the offence have not been made out and the learned Magistrate had failed to consider this important aspect. The learned Magistrate as well as learned Additional Sessions Judge failed to consider that the accused being a Government servant and had done the act in discharge of his official duty was protected by virtue of provisions of Section 197 of Code of Criminal Procedure, and therefore, without the sanction been obtained, the process ought not to have been issued. He also submitted that, though the accused had earlier invoked his remedy under Section 397 of Code of Criminal procedure, yet his remedy before this Court under Section 482 of Cr.P.C. has not been taken away, and therefore the petition is maintainable.

7. Per contra, it has been submitted by the learned Additional Public Prosecutor that, since the applicant had already invoked his remedy under Section 397 of Cr.P.C., he ought to have filed writ petition, he cannot now invoke the inherent powers of this Court.

8. In order to appreciate the controversy posed in this matter, it is necessary to see as to whether the complaint discloses the ingredients of the offence and whether the points raised by the applicant can be upheld. It is not in dispute that, the original complainant was serving in BSNL. It is also not in dispute