Public servants are protected under Section 197 of the Cr.P.C. from prosecution for acts done in discharge of official duties, requiring prior sanction for prosecution even if the acts involve excess of power.

Order :

MANOJ KUMAR GARG, J.

1.Instant criminal revision petition has been filed under Section 397 /401 Cr.P.C against the order dated 23.11.2016 passed by the learned Additional Sessions Judge No.4, Jodhpur Metropolitan in Sessions Case No. 182/2012 whereby, the learned Judge ordered to frame charges against the petitioners for offences under Sections 323, 325, 330, 331 IPC.

2. Brief facts of the case are that a written report was filed by the complainant Rameshwar Lal Soni stating therein that on 18.05.1988 when he was on leave, his residential house was raided by customs officers, however, they could not find any objectionable material. Thereafter, on 03.06.1988, he was apprehended by Inspector Dhakar and Mr. Mandola of Customs Department and taken to customs office where they inflicted injuries and threatened him.

3. On this report, the police registered a case and started investigation. After due investigation, the police filed negative Final report in the case. The complainant filed a protest petition in which the statement of complainant and witnesses were recorded under Section 200 and 202 Cr.P.C. and the trial court took cognizance against the accused petitioners. The petitioners filed an application under Section 197 Cr.P.C. stating therein that since the alleged offence has been committed by the petitioners who are public servants in discharge of his official duty, therefore, cognizance could not be taken against them unless a sanction has been accorded by the appropriate government. The said application came to be dismissed by the trial court vide order dated 09.11.1994.

4. The petitioners thereafter filed a revision petition before this Court being S.B. Criminal Revision Petition No. 382/1994. However, the said revision petition came to be dismissed as withdrawn with the liberty to raise all the objections before the trial court at the time of framing of charges. Subsequently, the learned trial court after hearing the arguments on charge, proceeded to frame charges against the petitioners vide impugned order dated 23.11.2016. Hence, this present revision petition.

5. Learned counsel for the petitioners argued 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 petitioners allegedly committed the "offence" during the course of discharging their official duty and therefore, the issue of sanction has to be considered at the time of framing of charges. However, the learned trial court while misinterpreting the provisions of Section 197 Cr.P.C. held that the act done by the petitioners does not fall within the mandate of Section 197 Cr.P.C. The allegation against the petitioners is that they took complainant to the customs office where he was interrogated by use of force. Therefore, the alleged acts were done in discharge of their duties as public servant, therefore, they are entitled to get protection of Section 197 Cr.P.C. Therefore, the impugned order dated 23.11.2016 is illegal and same is liable to be set aside. Learned counsel for the petitioner placed reliance on the decision of Hon’ble Apex Court in the case of D.T. Virupakshappa Vs. C. Subash reported in AIR 2015 SC 2022, judgment of this Court in the case of Mohan lal Lathar Vs. State & Anr. (S.B. Criminal Revision petition No. 32/2015) dated 27.04.2016 and Naresh Kumar Vs. State & Anr (S.B. Criminal Misc. petition No. 150/2013) decided on 22.08.2017.

6. Per contra, learned Public Prosecutor and learned counsel for the complainant argued that offence under Sections 323, 325, 330, 331 IPC is prima facie made out against the accused petitioners and acts done by the petitioners 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.