Section 197 of the CrPC creates an absolute bar in case of prosecution of a public servant unless a sanction has been accorded by the appropriate government.

JUDGMENT :

1. Instant criminal misc petition has been filed by the petitioner challenging the order dated 18.11.2016 passed by learned Additional District and Sessions Judge No.2, Chittorgarh whereby, while allowing the revision petition No. 78/2015 filed by the respondents, the order passed by learned Additional Chief Judicial magistrate, Rawatbhata dated 24.08.2015 taking cognizance against the accused respondents for offence under Section 342, 330, 385 read with Section 149 IPC has been set aside.

2. Learned counsel for the petitioner submits that offence under Section 342, 330, 385 read with Section 149 IPC is prima facie made out against the accused respondents and acts done by the respondents cannot be said to be in discharge of official duty and same would not be protected by the armor of Section 197 of the Code. It is further argued that the point about sanction need not have been considered at the initial stage of taking cognizance. At this stage the Court should only see if a "prima facie" case is made out or not. Therefore, the petitioner cannot be prevented from seeking justice due to the omission committed by the State in not granting the requisite sanction. Thus, it is prayed that the Additional District and Sessions Judge No.2, Chittorgarh is liable to be quashed and set aside and the order dated 24.08.2015 passed by learned Additional Chief Judicial Magistrate, Rawatbhata taking cognizance against the respondents is liable to be restored.

3. Per contra, learned Public Prosecutor and counsel for the respondents submits that Section 197 of the Code creates an absolute bar in case of prosecution of a public servant. The said provision prohibits the Court from taking a cognizance of such offence that has been committed by a public servant in discharge of his official duty unless a sanction has been accorded by the appropriate government. The respondents allegedly committed the "offence" during the course of discharging their official duty and therefore, the issue of sanction has to be considered at the threshold of taking cognizance. Therefore, no interference is called for in the impugned order dated 18.11.216 and the misc petition is liable to be dismissed.

4. I have heard learned counsel for the parties and perused the impugned order.

5. Section 197 of Cr.P.C reads as under:

"Prosecution of Judges and public servants:

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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:

a. In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, the Central Government.;

b. In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the State, of the State Government:

Provided.... "

6. Thus, the protection of this provision is available only if three conditions are fulfilled; the accused is (a) a public servant, (b) has allegedly committed an offence, (c) while acting or purporting to act in the discharge of his official duty. In case these three conditions are fulfilled, then the Court is prevented from taking cognizance of the offence unless the appropriate government grants a sanction against the alleged accused.

7. The revisional Court in its order dated 18.11.2016 has specifically observed that at the time of the incident, the respondents were working on different posts of Forest Department and were acting in discharge of their official duty. Thus, under Section 197 of the Code, the court is prevented from taking cognizance until and unless sanction was granted by the State.

8. In the case of State of H.P. v. M.