Girija Shankar Goyal vs Moinuddin - 2000 Supreme(MP) 1247

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : Darshan Singh.
For the Respondent: Manoj Soni, Panel Lawyer.

Headnote:(1) Criminal Procedure Code, 1973 – S. 197 – previous sanction for prosecution of public servant – offence must be committed while acting or purporting to act in discharge of official duty – should also be a coherent nexus between act and duty – abusing public – can never be the duty of officer.
       (2) Criminal Procedure Code, 1973 – S. 482 – second revision – not maintainable – inherent powers under – cannot be utilised when expressly barred by Code. AIR 1993 SC 1361 followed.
        Short Note
       1. This is a revision petition under section 401 read with section 482 of the Code of Criminal Procedure (for short 'the Code') against the order passed by learned Additional District & Sessions Judge, Mandsaur in Criminal Revision No. 115/99 dated 26.11.1999.
       2. The submission of Shri Darshansingh, learned counsel for the petitioner is that on the facts of this case the cognizance against the petitioner cannot be taken without obtaining previous sanction from the State Government under section 197 of the Code because the petitioner is a Senior Auditor under M.P. Local Funds Audit and posted in Nagar Palika, Mandsaur. His submission is that on 15.3.1999 he lodged a FIR with the city police station. Mandsaur against respondent No. 1 on the ground that he entered the office of the petitioner without permission and misbehaved with the petitioner and also threatened to kill him and members of audit parties because the petitioner had deducted some amounts from his bills. His further submission is that just to make a defence, respondent No. 1 lodged a written report against the petitioner on 18.3.1999 for the incident of 15.3.1999 making counter allegations against the petitioner that he was demanding money for clearing his bills and the respondent had also lodged report against the petitioner. The police has not taken any cognizance on that report and thereafter the respondent filed a private complaint against the petitioner under sections 506, 504 and 294 IPC. In this private complaint the petitioner took an objection that he is public servant and without the sanction under section 197 of the Code, cognizance cannot be taken and the petitioner cannot be prosecuted.
       This objection was rejected by the trial Court vide order dated 1.5.1999.
       3. Against the order dated 1.5.1999 the petitioner filed a revision before the Com1 of learned Additional Sessions Judge, Mandsaur. The further submission of Shri Darshansingh is that by order dated 26.11.1999. the learned first revisional Court also dismissed the revision saying that on the facts of the complaint sanction under secti9n 197 of the Code is not necessary because it is not the official duty of the public servant to abuse or threaten the complainant.
       4. The further submission of Shri Darshansingh is that he has filed this second revision and praying for setting – aside the impugned order as the incident took place in the office during the working hours and, therefore, sanction under section 197 of the Code is necessary. Therefore, he prayed that under section 482 of the Code this petition be allowed and order passed by the Chief Judicial Magistrate, Mandsaur on 1.5.1999 on private complaint No. 732/99 be set – aside or quashed in the interest of justice.
       5. I have heard the learned counsel for the petitioner and also perused the record of the trial Court. I have also considered the submissions made by the counsel for the petitioner.
       6. The sole question in this case is that whether prior .sanction of the State government under section 197 of the Code of Criminal Procedure is necessary for prosecuting the petitioner in a private complaint. From the facts it is clear that on 15.3.1999 at about 12 O'clock some incident took place in the office but the petitioner lodged the report of this incident at 17.30 p.m. (i.e. 5.30 p.m.) in the police station and on the basis of this complaint lodged the FIR and on the basis of this FIR the police registered a case against Respondent No.1 on 1.4.1999, but the respondent No. 1 also lodged the report in the police station and on 17.3.1999 filed a private complaint.
       7. Before considering the merit on this case whether on the given facts previous sanction under section 197 of the Code is necessary or not. So far as this case is concerned under section 197 of the Code, this has to be seen that the offence must be committed by the accused while acting or purporting to act in the discharge of his official duty and there should also be a coherent nexus between the act complained of as an offence and the duty of the public servant. In this case on the given facts it cannot be said that the act complained of is intimately and integrally connected with the official duty of the petitioner. This can never be the duty of any officer to abuse the public man who has come with some complaint or grievance before him. Considering this fact even on merit, I do not find any case for interference in this second revision.
       8. It is true that this is a second revision which has been filed by the petitioner under sections 401 read with 482 of the Code in a private complaint and as per the settled law the Apex Court in case of Dharampal and others v. Smt. Ramshri and others (AIR 1993 SC 1361) has held that the second revision is not maintainable even under the provisions of section 482 of the Code and the inherent powers under section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code.
       In the result, this second revision petition is not maintainable and is accordingly, dismissed.