The necessity of sanction for prosecution under section 197 of the Criminal Procedure Code and the requirement for the complainant to allege the mens rea on the part of the persons concerned to constitute an offence.

ORDER :

Shri Awadhesh Sharma, counsel for the applicant. None for the respondents No. 1 to 3 though served. Shri Prakhar Dhengula, Panel Lawyer for the respondent/State. This petition under section 482 of Criminal Procedure Code has been filed against the order dated 23-7-2011 passed by Second Additional Sessions Judge, Guna in Criminal Revision No. 54/2011 thereby affirming the order dated 28-1-2011 passed by Judicial Magistrate First Class, Radhogarh, District Guna by which the complaint filed by the applicant against the respondents No. 1 to 3 for offences punishable under sections 467, 468, 420 of Indian Penal Code was dismissed under section 203 of Criminal Procedure Code.

2. The necessary facts for the disposal of this case are that a complaint was filed against the respondents by the applicant under section 200 of Criminal Procedure Code alleging that on 31-12-2005 he had filed an application for batankan of his land and the final order was passed on 10-2-2009. The case was registered in the Court of respondent No. 1 and the complainant obtained certified copies of the record on 3-3-2009. On perusal of the said documents the complainant came to know that although he had filed an application on 31-12-2005 and the respondent No. 1 had put his signatures and had mentioned the date 31-12-2005 below his signatures, however, after scoring out 05, 07 was mentioned showing as if the application was filed on 31-12-2007. Along with the application a Vakalatnama was filed on which the date 30-12-2005 was mentioned. It was stated that the order sheets from 31-12-2005 till 2-1-2008 were removed. The report dated 2-1-2006 was submitted by Patwari Halka. However, the case was rejected by the respondent No. 3 against which an appeal is pending before the Court of SDO. Thus, it was alleged that the act of the respondents No. 1 to 3 is punishable under sections 467, 468, 420 of Indian Penal Code.

3. The Trial Magistrate after recording the statements of the witnesses under sections 200 and 202 of Criminal Procedure Code dismissed the complaint under section 203 of Criminal Procedure Code. It appears from the order dated 28-1-2011 passed by the Court of Magistrate, the Court had allowed the respondents No. 1 to 3/accused to participate in the proceedings and to argue on the question that whether summons can be issued or not.

4. Trial Magistrate after considering the facts of the case in detail observed that the complainant has not filed any material, to show that any previous order sheets were ever destroyed or removed. The Trial Magistrate further held that under the facts and circumstances of the case sanction for prosecution under section 197 of Criminal Procedure Code is essential. It was further held that in view of the provisions of section 195 of Criminal Procedure Code, as it is alleged that the order sheets of the Court have been manipulated, therefore, the Court cannot take cognizance at the instance of a private person.

5. Being aggrieved by the order of Trial Magistrate, the applicant filed a criminal revision which has suffered dismissal by order dated 23-7-2011.

6. It is contended by the counsel for the applicant that although the application was filed on 31-12-2005 but the order sheet for the first time was written on 2-1-2008 and in fact the respondents have removed/destroyed the previous order sheets. In the entire complaint, there is no mention that from 31-12-2005 till 2-1-2008 on what dates the case was taken up by the respondents. There is no whisper in the complaint that he had ever appeared before the Court of respondent No. 1 prior to 2-1-2008 and had participated in the proceedings. It is merely mentioned in the complaint that his counsels Shri Rajiv Nayan Sharma and Shri Tej Narayan Parashar might have appeared on several dates but all those records and order sheets have been removed from the government record.

7. It was further alleged that from order sheet dated 2-1-2008, it is clear that the case was fixed for 2-2-20