Protection under Section 197 Cr.P.C. is not available for unlawful acts of public servants; only actions within official duty may require sanction.

JUDGMENT :

1. The petitioner by invoking inherent jurisdiction under Section 482 Cr.P.C. has questioned the correctness, legality and judicial property of the impugned order dated 2^nd December, 2013 passed by the learned J.M.F.C., Narsinghpur in connection with ICC Case No.10 of 2013 for having not taken cognizance of the alleged offences instead demanding sanction in terms of Section 197 Cr.P.C. on the grounds inter alia that the same is not tenable in law and thus, liable to be set aside.

2. Heard counsel for the petitioner and learned AGA for the State. None appeared on behalf of opposite party No.2.

3. Learned counsel for the petitioner submits that the court below fell into serious error while calling for sanction with the conclusion that it is necessary in order to criminally prosecute opposite party No.2 despite the fact that the allegations are to the effect that she was misbehaved and manhandled by him during and in course of the alleged incident. It is further contended that such treatment meted out to the petitioner at the instance of opposite party No.2 was no part of official duty and therefore, sanction is not required but then, the learned court below grossly erred while asking for it. While contending so, Mr. Mishra relied upon the following decisions, such as, Keshaba Jena Vrs. Pradipta Kishore Das and others: (1989) 2 OCR 34; Sri Nabaghana Patalasingh Vrs. Smt. Bhanumati Padhiari: 2006 (I) OLR 330; Choudhury Parveen Sultana Vrs. State of West Bengal and Another: (2009) 42 OCR (SC) 535; and Rabindranath Satpathy Vrs. Hina Sethy: (2009) 44 OCR 728.

4. Despite service of summons, opposite party No.2 is left unrepresented. The learned AGA, however, sought to defend the impugned order under Annexure-3 while contending that since the learned court below arrived at a conclusion that the alleged incident happened at a time when opposite party No.2 was on duty, no error or wrong was committed as a result while demanding sanction which is a statutory mandate as per Section 197 Cr.P.C.

5. In fact, the petitioner as the complainant lodged the complaint registered as 1CC No.10 of 2013, wherein, she described the details of the alleged incident and the nature of overt act and mischief committed by opposite party No.2. According to the petitioner, the alleged occurrence took place on 16th January, 2013 at a time when she had gone to the P.S. along with her husband to report an incident with the police where opposite party No.2 being the OIC abused her in obscene language and two days later, when they again visited the PS, after having obtained a copy of the FIR, when sought for a clarification, opposite party No.2 lost his temper and assaulted her by blows as a result of which she fell on the ground but was save due to the presence of her son and husband, whereafter, while leaving the spot was threatened with dire consequences to get her killed. With the above allegations, when the complaint was filed, the initial statement of the petitioner was recorded and enquiry under Section 202 Cr.P.C was conducted and finally, the learned court below passed the impugned order under Annexure-3 which is under challenge.

6. Admittedly, the incident took place at the PS which is revealed from the complaint itself. The learned court below was of the opinion that since opposite party No.2 was on duty being the OIC of the P.S and the alleged incident having taken place at that point of time, sanction under Section 197 Cr.P.C. to be necessary. Mr. Mishra, learned counsel for the petitioner submits that it was no part of official duty of opposite party No.2 to