The main legal point established in the judgment is that the protection under Section 197 Cr.P.C. is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing objectionable acts.

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard Sri Upendra Vikram Singh, learned counsel for the applicant and Sri Uday Bhan, learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the summoning order dated 31.05.2014, under Section-465 IPC, Police Station-Chamanganj, District-Kanpur Nagar and the entire proceeding of Complaint Case No.356 of 2014 (Om Prakash Agrawal Vs. V.P. Govil and others), pending in the court of MM-IV, Kanpur Nagar.

3. Learned counsel for the applicant submits that the applicant had retired as an Executive Engineer in 2010, and after his retirement, the impugned complaint was filed In 2014, the summoning order was passed on 15.04.2014. Thereafter, the applicant, after obtaining bail, filed an application dated 19.06.2015 that complaint itself is barred for want of proper sanction u/s 197 Cr.P.C., which was heard on 01.09.2015, but disposal of same was postponed till the evidence stage. Now, after almost four years, the applicant has challenged the impugned criminal proceeding on the ground that prior sanction u/s 197 IPC was not taken before lodging the complaint above or before taking cognizance of the aforesaid complaint.

4. Learned counsel for the applicant submits that the allegation in the complaint against the applicant is that while discharging his duty as an Executive Engineer, he had produced a forged disconnection slip dated 03.11.2008. Therefore, without prior sanction u/s 197 Cr.P.C., the proceeding of the complaint case cannot be initiated. In support of his contention, learned counsel for the applicant has also relied upon the judgement of a coordinate Bench of this Court passed in APPLICATION U/S 482 No. - 17421 of 2011 (Ayush Kumar And Others Vs. State of U.P. And Another) vide order dated 10.04.2019, as well as the judgement of the Apex Court in Criminal Appeal No.238 of 2019 (Professor R.K. Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr.) decided on 15.02.2019 as well as the judgement of Punjab State Warehousing Corporation Vs. Bhushan Chander And Another reported in 2016 (13) SCC 44.

5. Per contra, learned counsel for opposite party no.2 has submitted that once the applicant's application for dropping the proceeding on the ground want of prior sanction u/s 197 Cr.P.C. was rejected, that order has become final. The applicant cannot challenge the impugned proceeding on the same ground.

6. Learned AGA also adopted the argument of opposite party no.2 and furthermore submitted that the impugned proceeding itself is at the evidence stage, and the applicant also obtained bail in the impugned proceeding, he can raise this objection at the appropriate stage.

7. After considering the submission of the parties and on perusal of the record, it is clear that the applicant moved an application for dropping the proceeding on the ground that prior sanction u/s 197 Cr.P.C. was not obtained before filing the complaint. Though that application was heard by the court on 01.09.2015, but disposal of same was adjourned on the grounds of whether applicant's act of producing the allegedly forged disconnection slip dated 03.11.2008 is in the discharge of his official duty, which can be decided on the basis of evidence. The order sheet shows that this application is still pending.

8. Hon'ble Supreme Court in the case of State of Orissa Vs. Ganesh Chandra Jew reported in 2004 (8) SCC 40 observed that protection u/s 197 Cr.P.C. had certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing objectionable acts. The question is not as to the nature of the offence such as whether the alleged offence contained an element that necessarily depends upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Paragraph no.7 of the above judgement is being quoted as