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1993 Supreme(Cal) 421
High Court Of Calcutta
Nikhil Nath Bhattacharjee
MRITYUNJOY SINHA - Appellant
Versus
TARAPADA DAS - Respondent
Criminal Revision 471 Of 1993
Decided On : 09/15/1993
ASIMESH GOSWAMI, SANGHAMITRA NANDY, TAPATI CHATTERJEE
Prior sanction of the Government is required for the prosecution of a public servant for an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty.
Headnote:
SANCTION FOR PROSECUTION - PUBLIC SERVANT - GOVERNMENT EMPLOYEE - PRIOR SANCTION REQUIRED - OFFENCE ALLEGED TO HAVE BEEN COMMITTED WHILE ACTING OR PURPORTING TO ACT IN DISCHARGE OF OFFICIAL DUTY - SECTION 197 OF THE CODE OF CRIMINAL PROCEDURE - INTERPRETATION AND APPLICATION.
Fact of the Case:
The petitioners, a District Library Officer and a clerk-cum-typist of a public library, were accused of demolishing an unauthorized construction on the library premises. The petitioners claimed that they acted under the orders of their superior authority and that the demolition was carried out by the police and labors provided by the Municipality. The petitioners filed a revisional application challenging the maintainability of the prosecution on the ground that no prior sanction was obtained from the Government.
Finding of the Court:
The court held that the petitioners were public servants removable only by the Government and that the alleged offence was committed while acting or purporting to act in the discharge of their official duties. Therefore, prior sanction of the Government was required before cognizance of the offence could be taken by the Magistrate.
Issues: Whether prior sanction of the Government is required for the prosecution of a public servant for an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty.
Ratio Decidendi: The court interpreted Section 197 of the Code of Criminal Procedure and held that two conditions are necessary for the application of the section: (1) the public servant is removable from office only by the Government, and (2) the public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The court also held that the expression "while acting or purporting to act in the discharge of his official duty" means that the allegation made in the petition of complaint must be considered visa-vis the defense that may be put forward in the matter.
Final Decision: The court allowed the revisional application, set aside the impugned prosecution, and quashed the proceedings.
( 1 ) IN, this application under Article 227 of the constitution the applicants have challenged maintainability of the petition of complaint dated 31. 10. 1992 in the Court of the learned Sub-Divisional Judicial Magistrate, Serampore registerd as C. R. case No. 262 of 1992 on the ground that no prior sanction was obtained from the Government for the said prosecution.
( 2 ) THE petitioners case, in short is that petitioner No. 1 being the District Library Officer and Librarian-in-charge and petitioner No. 2 being the clerk-cum-typist of Uttarpara Joykrishna Public Library, District Hooghly are the gazetted officer and the Government employee respectively under the State Government. The Library is situated at holding No. 228, G. T. Road under Uttarparakotrung Municipality. By virtue of a declaration published by the Government of West Bengal in L. A. Case No. 1 of 1992/93 on 14. 10. 1985 under section 6 of the Land Acquisition Act, 1894, the property in C. C. Plots No. 1374 and 1375 of Mouza and P. S. Uttarpara were taken over and annexed to the area under occupation of the said library. The respondent No. 1 is the occupier of holding 212, G. T. Road which is on the adjacent north of the said library since extended, under the same municipality. On or about 13. 7. 1992 noticing an unauthorised construction work being carried out by the respondent No. 1 on the northern part of the boundary wall of the newly acquired building of the said library the petitioner No. 1 issued a letter to the respondent No. 1 asking him to stop the construction work immediately. But respondent No. 1 not only ignored the said letter, but also paid no heed to verbal requests made to him by local respectable citizens and Government officials for stoppage of construction and continued the unauthorised construction. The petitioner No. 1 thereafter took up the matter with the district administration in order to save the property of the library which is a property of the Government of West Bengal. Pursuant to the same the District Magistrate, Hooghly issued a written instruction to the petitioner No. 1 under his memo. No. 1207/c dated 22. 9. 1992 directing him to contact the Circle Inspector of Uttarpara police to arrange for demolition of the unauthorised boundary wall and vacating the unauthorised occupation of the quarter.
( 3 ) ON 21. 9. 1992 the petitioner No. 1 received a communication from the Sub-divisional Police Officer, Serampore in which the Chairman of the Municipality was requested to provide necessary labour force to carry out the demolition programme. On 14. 10. 1992 the Officer-in-charge Uttarpara police station asked the petitioner No. 1 in writing to fix up and inform a date in consultation with the Chairman of the Municipality for the demolition work to be carried out. On or about 26. 10. 1992 the unauthorised construction on the northern wall of the library premises was demolished by the police at per order of the Government. It is the petitioners case that although there was no valid reason to be aggrieved by the said Act of the Government, the opposite party No. 1 filed the impugned petition of complaint on 31. 10. 1992 in the Court of the Sub-divisional Judicial Magistrate, Serampore against the petitioners and others. The said case was registered as CR 262 of 1992 and is now pending in the Court of the learned 5th Judicial Magistrate, Serampore.
( 4 ) AFTER receiving the summons the petitioners appeared in the said court on 7. 1. 1993 and filed a petition on the self-same date praying for quashing the order of taking cognizance on the ground that the case had been filed without obtaining sanction of the Government and that all acts had been done in discharge of official duties by the public servants but the learned Court having not passed any order in respect of the petition the present revisional application had to be filed.
( 5 ) TO protect Judges, Magistrates and other public servants against irre
