The main legal point established in the judgment is the requirement of sanction under section 197 of the Criminal Procedure Code for prosecuting a public servant and the circumstances under which protection under section 197 cannot be claimed.

ORDER :

1. This petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioner for quashment of the order dated 31-5-2010 passed by learned Revisional Court in Criminal Revision No. 86/2010 whereby learned Revisional Court dismissed the revision preferred by the petitioner against the order of the trial Court dated 16-4-2010 whereby cognizance has been taken against the petitioner for the offence punishable under sections 294, 456, 323, 166, 427 and 506 of the Indian Penal Code on the complaint filed by the respondent No. 2/complainant. Simultaneously, learned Revisional Court confirmed the rejection order passed by the trial Court whereby the application filed under section 197, Criminal Procedure Code by the petitioner has been rejected.

2. In brief, the facts of the case are that the petitioner is a Police officer posted as S.D.O. (P) Itarsi, District Hoshangabad, against him, respondent No. 2 filed a complaint alleging that on 18-6-2008 the petitioner along with near about 25 police personnel at about 2 a.m. came at her house and asked about her sons. When, her husband replied that sons are not in the house and he will send them in the morning to the police station then the petitioner slapped the complainant’s husband. When, the complainant intervened saying that her husband is suffering from heart ailment, he should not be beaten then the petitioner used filthy language and also slapped her. Thereafter, the petitioner entered into the house and took away with him motorcycle bearing Registration No. 05-MA-6788 and one generator. About this conduct of the petitioner, a complaint was made by the respondent No. 2 to the concerned officer and authority and in the last, on 26-12-2008 the complaint was filed before the J.M.F.C. Itarsi and after taking statement of the complainant and the witnesses, the learned Magistrate took cognizance for the offence under sections 294, 456, 323, 166, 427 and 506 of the Indian Penal Code.

3. Thereafter, the petitioner submitted an application under section 197, Criminal Procedure Code before the learned J.M.F.C. concerned, stating that at the time of alleged incident, he went to the house of the complainant to arrest her sons in connection with crime No. 119/2008 registered at Police station Pathrouta, Itarsi under sections 147, 148, 149, 307, 332 and 353 of the Indian Penal Code and under section 25 of the Arms Act. All the sons of the complainant had criminal antecedents. They are hardened criminals, therefore, with a view to arrest them, the petitioner went to the house of the culprits and nothing alleged act was done with the complainant and her husband. Just to counter blast and harass the police officer, vexatious and frivolous complaint has been made. The act as stated has been done during discharging official duty. Hence, the provisions of section 197, Criminal Procedure Code are attracted and for prosecution of the petitioner, sanction of the State Government is required and without obtaining prior sanction, learned Court of J.M.F.C. has no jurisdiction and power to take cognizance against him. Hence, the complaint be dismissed but learned Court below rejected the application. Thereafter, revision was filed by the petitioner which was also rejected by the learned Additional Sessions Judge. Hence, this petition has been filed on the ground that the order of taking cognizance on the said complaint is improper, bad in law and incorrect as against the petitioner no offence is made out as there is no evidence on record. Thus, the complaint has been filed with an oblique motive. Apart from it, it appears that the alleged act in discharging his official duty by the petitioner is in furtherance of the investigation of Crime No. 119/2008, registered at P.S. Pathrouta, against the sons of the complainant, therefore, sanction under section 197, Criminal Procedure Code is must and without sanction, the concerned J.M.F.C. has no jurisdiction to proceed with the comp