IMPORTANT POINT
Sanction under Section 197 of Cr.P.C. is necessary for prosecuting public servants only when the alleged offences are committed in discharge of official duties.

ORDER :

This Crl. Rev. Petition has been filed under Section 397 r/w 401 of the Code of Criminal Procedure (for short, “Cr.P.C.”) to quash Annexure - VII charge dated 11.08.2017 framed by the Special Court (Principal Sessions Court, Kottayam) under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC/ST PO Act’) in S.C.No. 321 of 2016, pending therein.

2. Heard the learned counsel for the 2nd petitioner/2nd accused, since the 1st petitioner/1st accused is no more. Also heard the learned Public Prosecutor. Perused the records produced along with the petition and also the Case Diary as such placed by the learned Public Prosecutor in detail.

3. In this matter, the prosecution alleges the commission of offences punishable under Sections 294(b), 465, 466, 474 r/w 34 of IPC as well as under Section 3(1)(x) of the SC/ST PO Act by the accused. The specific allegation is that, the accused herein who are aware of the caste identity of the de facto complainant as a member of the Scheduled Caste community, at about 05.00 p.m on 07.10.2013, used abusive words by calling her caste name with intention to humiliate her within public view. Further allegation is that they forged documents to hold that the de facto complainant misappropriated some amount under 9 CB Bills, and the same resulted in suspension of the de facto complainant.

4. The first point argued by the learned counsel for the 2nd petitioner is that, in this matter, in order to prosecute the 2nd petitioner/2nd accused sanction under Section 197 of Cr.P.C. is necessary, since he is a public servant at the alleged time of occurrence. Even though the prosecution applied for sanction, no sanction so far obtained and therefore, the entire proceedings is vitiated. In this connection, the learned counsel for the 2nd petitioner placed decision of the Apex Court reported in 2023 KHC 6628 Amod Kumar Kanth v. Association of Victim of Uphaar Tragedy, where in the facts are as under:-

“An unfortunate and tragic incident led to a criminal prosecution accused against 16 accused; in which 59 persons lost their lives and over 100 persons received serious injuries, while viewing a film sitting in the balcony of Uphaar Theater. High Court has dismissed the petition filed by the appellant under S.482 of the Code of Criminal Procedure, 1973. Said petition was filed against the order passed by the Additional Sessions Judge; wherein Sessions Judge confirmed the decision of Metropolitan Magistrate rejecting the closure report filed by the Central Bureau of Investigation. Closure report filed by the CBI was not accepted by the Magistrate, who instead took cognizance on the protest petition filed by the first respondent and cognizance has been taken for offences under S.304A, S.337, S.338 of the Indian Penal Code, 1860 and the provisions under S.14 of the Cinematograph Act, 1952 read with the Rules. Present appeal is filed against the order of High Court dismissing the petition filed under S.482 of the Code of Criminal Procedure, 1973. Main issue for consideration was; whether said order upholding the order of the Magistrate taking cognizance and issuing summons was illegal.”

5. In the said case, the apex Court held as under:-

“ The most important question which must be posed and answered by the Court when dealing with the argument that sanction is not forthcoming is whether the officer was acting in the exercise of his official duties. It goes further. Even an officer who acts in the purported exercise of his official power is given the protection under. S.197 of the Cr.P.C. This is for good reason that the officer when he exercises the power can go about exercising the same fearlessly no doubt with bona fides as public functionaries can act only bona fide. In fact, the requirement of the action being bona fide is not expressly stated in S.197 of the Cr.P.C., though it is found in many other statutes protecting public servants from action, civil and cri