1. This is a reference made by the learned 1st Addl. Sessions Judge, Srinagar recommending to set aside the order of the learned Chief Judicial Magistrate, Srinagar dated 23-5-2000, vide which order the learned Chief Judicial Magistrate permitted the prosecution of the employees of the Electric Department.

2. Briefly put the facts are that on13-2-1998 and information was received in the Police Station, Parimpora that electric LT line has fallen due to which the kitchen, cow-shed and shop of the present petitioner caught fire and was damaged. On this information, the fire incident was investigated and it was found that the negligence of the Electric Department in maintaining the supply line in a proper and fit condition. Had the supply line be in proper order, the electric supply line would not have fallen and the kitchen, cowshed & shop of the petitioner would not have burnt. On the completion of investigation charge report under section 287 RPC was filed in the Court of Chief Judicial Magistrate, Srinagar against the employees of the department, Fiaz Ahmed, Asstt. Executive Engineer, Abdul Rashid Ganai, Inspector and Mohd Yousuf Dar, Lineman.

3. A preliminary objection was raised before the Chief Judicial Magistrate regarding the maintainability of the charge-report without sanction under Section 197 Cr.P.C to prosecute the accused/ employees of the Electric Department on the plea that no prosecution can lie against the employees of the department, for the acts done by them in the curse of their duty. The learned Chief Judicial Magistrate after hearing the parties, vide order dated 31-5-2000 came to the conclusion that the defence of sanction under section 197 Cr PC on the facts and circumstances of the charge report is available to the accused because their act of negligence did not constitute any part of their duty.

4. Aggrieved by this order dated 31-5-2000, the accused preferred a revision petition before the learned 1st Addl. Sessions Judge, Srinagar. The learned 1st Addl. Sessions Judge heard the parties and came to the conclusion that the findings of the learned Chief Judicial Magistrate that no sanction was required to present reference recommended that the order of the learned Chief Judicial Magistrate dt.31-5-2000 be set aside.

5. Perused the entire record and both the order of the learned Chief Judicial Magistrate dated 31-5-2000 and of learned 1st Addl. Sessions Judge, Srinagar dated 27-9-2000.

6. It is a settled position of law that Section 197 Cr.P.C has been incorporated to provide a shield and protection to an honest, duty-bound and sincere public servant to perform his duty to the best of his ability, without the threat of un-justified and motivated prosecution, simply to demoralize the honest officer and to prevent him from doing his lawful duty. The essential requirement under section 197 Cr.P.C are that the public servants act must be in furtherance and performance of his lawful duties and the act or even omission must be an integral part covered by his duties as a public servant. A distinction has however, to be drawn between the lawful duties and those acts which are not covered within the scope of the official duties. The public servant cannot take the cover and try to camouflage those illegal acts which do not come within the ambit of his public duty, simply to commit crime. In case Shamboo Nath vs. State of Utter Pradesh, 1997(5) SCC 336, Their Lordships of the Apex Court in Para 5 have observed as under:

" It is not the official duty of the public servant to fabricate false record and mis-appropriate the public funds in furtherance or in the discharge of his official duty."

7. The allegations against the accused persons as made out in the charge report, are that the electric Supply LT Line of the Electric Department had not been maintained, and were not in perfect order and due to the negligence of the employees; of the electric department, the present accused, the electric LT line snapped and fell

Click Here to Read the rest of this document