IMPORTANT POINT
Prior sanction under Section 197 Cr.P.C. is mandatory before prosecuting public servants for actions taken in discharge of official duties.

ORDER :

Heard the parties.

2. The present application has been filed for quashing the order dated 04.12.2018 passed by the learned Sub-Divisional Judicial Magistrate, Pupri, Sitamarhi in Complaint Case No. 126 of 2018 by which cognizance of offence punishable under Sections 427 and 504 of the Indian Penal Code has been taken against the petitioner without considering the relevant facts and circumstances of the case.

3. The brief facts of the case is that the complainant had preferred a complaint case against the present petitioner alleging that the petitioner in his official capacity of a Circle Officer had passed an order for removal of encroachment stating therein that only the ancestral house of the complainant was singled out and demolished.

4. Learned counsel for the petitioner submits that the petitioner being the Circle Officer had received several representations regarding encroachment of the public road which was causing obstruction in the movement of the vehicles. Acting upon the aforesaid representation, the petitioner had issued the necessary directions to the Anchal Amin for measurement of the concerned land. The petitioner had duly followed the procedure and issued the relevant notices to the concerned parties. However, none of the parties had removed their encroachments.

5. It is categorically submitted by learned counsel for the petitioner that no sanction for prosecution was obtained before taking cognizance of offence and as such the cognizance order is untenable and cannot be sustained.

6. The learned APP and the learned counsel for the opposite party no. 2 have opposed the present petition and have submitted that the impugned order suffers from no illegality and infirmity.

7. I have considered the submissions of the parties and perused the materials on record.

8. At the outset, it would be apposite to refer to the precedents on relevance of obtaining sanction for prosecution against a public servant. Recently the Hon’ble Supreme Court in the case of Gurmeet Kaur vs. Devender Gupta & Anr. reported as 2024 SCC OnLine SC 3761 has reiterated the object and purpose of Section 197 of the Cr. P.C. which protects the public servants from unjustified criminal prosecution for acts done while discharging their official duties and held as under:—

“25. As already noted, the object and purpose of the said provision is to protect officers and officials of the State from unjustified criminal prosecution while they discharge their duties within the scope and ambit of their powers entrusted to them. A reading of Section 197 of the CrPC would indicate that there is a bar for a Court to take cognizance of such offences which are mentioned in the said provision except with the previous sanction of the appropriate Government when the allegations are made against, inter alia, a public servant.

26. There is no doubt that in the instant case the appellant herein was a public servant but the question is, whether, while discharging her duty as a public servant on the relevant date, there was any excess in the discharge of the said duty which did not require the first respondent herein to take a prior sanction for prosecuting the appellant herein. In this regard, the salient words which are relevant under sub-section (1) of Section 197 are “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction”. Therefore, for the purpose of application of , a sine qua non is that the public servant is accused of any offence which had been committed by him in “discharge of his official duty”. The said expression would clearly indicate that of the Cr