The central legal point established is the requirement of obtaining proper sanction for prosecuting a government servant for acts committed in discharge of official duties, as per Section 197 Cr.P.C.

JUDGMENT

Pushpendra Singh Bhati, J. - This Criminal Misc. Petition under Section 482 Cr.P.C. has been preferred claiming the following reliefs:-

"It is, therefore, most humbly and respectfully prayed that the Misc. Petition may kindly be allowed and the Order dated 31.10.2018 passed by Shri Devendra Kacchawaha, District & Sessions Judge, Balotra in Criminal Revision No. 34/2018 against the Order dated 16.02.2012 passed by Shri Naveen Meena, Judicial Magistrate, Sivana in Cr. Original Case No. 34/2012 State of Raj. v. Bhanwarlal Patel by which cognizance u/s. 452, 323, 341 was taken against the petitioner, may kindly be quashed and set aside."

2. Mr. Dhirendra Singh, learned Senior Counsel assisted by Mr. Jagdish Singh appearing on behalf of the petitioner submits that the facts in brief of the case are that one Ghevar Ram filed a complaint before the learned Trial Court, stating therein that he is a resident of Rohicha Kalan, Tehsil Luni, District Jodhpur, with agricultural land at Village Ratdi, Tehsil Siwana, District Barmer where he farms the land along with the rest of his family. And that on 17.11.2004 at midnight, while he was sleeping in his Dhani along with other family members, police personnel came to his house to question his about one Papparam's whereabouts. And that, when he did not respond, they gave beatings him with lathis and inflicted injuries upon his person, namely his eyes, back and thighs. And that, when the niece of the complainant, Dhapu Bai, attempted to intervene, they misbehaved with her, assaulted her and threatened to implicate her in a false case. And that, the learned Court below on the basis of statements recorded, of the complainant under Section 200 Cr.P.C. and the witnesses under Section 202 Cr.P.C., proceeded to take cognizance against the petitioner for the offences under Sections 452, 323, and 341 I.P.C. vide order dated 16.02.2012. And that, aggrieved by the same the petitioner preferred a revision petition against the same, which came to be dismissed by the learned revisional Court vide order dated 31.10.2018.

3. Learned Senior Counsel for the petitioner further submits that the petitioner is a government servant who was discharging his official duty, and on the basis of apprehension, reached the residence of the complainant, to arrest history-sheeter Papparam. And that, when the petitioner and his team arrived at the residence, the complainant and his family did not cooperate and in fact, hampered the investigation process.

3.1. It is further submitted that the testimonies of the witnesses on the basis of which cognizance against the petitioner has been taken, is wholly unreliable as they are relatives of the complainant and are not independent witnesses.

3.2. It is also submitted that the petitioner acted in accordance with the law, and is protected under Section 197 Cr.P.C. wherein it is stated that as the Govt. Servant, during the discharge of his official duty, he is protected and permitted to use force against civilians or other persons, when acting in a bona fide manner.

3.3. It is further submitted, that while the case of the prosecution loses its entire foundation due to the same, the order of cognizance also suffers from the legal infirmity of lack of prosecution sanction, which was not obtained, even though the petitioner is a government servant.

4. Learned Senior Counsel appearing on behalf of the appellant placed reliance on the judgment of Sankaran Moitra v. Sadhna Das and Ors. (2006) 4 SCC 584 and Indra Devi v. State of Rajasthan and Anr. (2021) 8 SCC 768. Relevant portion of the said judgments are reproduced as under:-

Sankaran Moitra (supra):-

"The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197