1980 Supreme(MP) 307

Faizan Uddin, J.
Omkar Prasad Dubey v. Charanlal Sahu.
Misc. Cr. No. 444 of 1977 (J); Decided on 29-9-1980.

Headnote:(1) Criminal P.C., 1973 -- S. 197 -- permission to prosecute public servant -- necessity of -- public servant appointed by State Government and also removeable by it -- permission is necessary.

        (2) Criminal P. C., 1973 -- Ss. 200, 202 & 204 -- issuance of process under S. 204 -- duty of magistrate -- what is --purpose of Ss. 200 & 202 -- explained.

        (3) Criminal P. C, 1973 -- S. 482 -- inherent powers wider -- when may be exercised to quash issuance of process to accused.

        On the complaint being filed, the learned Magistrate examined the complainant/non-applicant, registered the complaint against the petitioners under section 166/500/34 of the Penal Code and directed to issue process against petitioners. This petition has been filed to quash the said proceedings against the petitioners on the grounds inter alia that (a) the petitioners are public servants, but the learned Magistrate did not apply its mind while registering the complaint and issuing process against them that the requirements of section 197 of the Code were not complied with in as much as that the prior sanction of the State Government was not obtained for prosecution because the alleged acts were done in the discharge of their official duty and that (b) the facts stated in the complaint read with the statement of the complainant/non-applicant, do not constitute offences under section 166/500 read with section 34 of the Penal Code.

        Held : Onkarprasad Dubey was an Administrator of the Corporation during the relevant period, appointed by the State Government under the provisions of section 5 (1) of the Act. He was also a public servant as defined in description Twelfth of section 21 of the Penal Code. State Government having power to appoint an Administrator for the Corporation will also have the power to remove him. The petitioner No. 1 had passed the orders on the application of the non-applicant refusing to grant building permission in his capacity as Administrator which was an act in discharge of his official duty and, therefore, manifestly there was a clear bar engrafted in section 197 of the Code, in taking cognizance of the alleged offences against the petitioner No. 1.

        The petitioners, No. 2, 3 and 4 were admittedly the officers and servants of the Corporation appointed under section 58 of the Act. They were also the "Public Servants" within the meaning of section 21, description Twelfth (b) of the Penal Code, but they will not be covered by the statutory express bar provided in section 97 of the Code as they were not removable from their office by or with the sanction of the Government and, therefore, it was not necessary for the complainant/non-applicant to obtain a prior sanction for launching prosecution against the petitioners No. 2, 3 and 4.

        One of the purposes lying behind the provisions of sections 200 and 202 of the Code is to enable the Magistrate to carefully examine the complaint allegations and the material placed before it so as to safeguard the interest of a person against whom the complaint is filed, from being prevented to face a unfounded and frivolous accusation. It is, therefore, the solemn duty of the Magistrate to elicit all facts not merely within the object to protect the interest of an absent accused person, but also with an object to bring to book a person against whom allegations have been made. In exercise of the powers under section 482 of the Code, therefore, the High Court may quash. a proceeding if it comes to the conclusion that by permitting the proceedings to continue would be an abuse of the process of the Court or that the ends of justice required that the proceedings ought to be brought to an end by quashing the same.

        On perusal of the complaint I find that there are no definite allegations much less incriminating allegations, against any of the petitioners No. 2 to 4. The complainant/non-applicant made a vague and sweeping allegation in para No. 3 of his complaint that "the accused have maliciously acted contrary to the directions of law knowingly with intent to cause injury to the complainant". He further alleged in the same para that the complainant suffered a loss of Rs. 11,000/- and mental and physical agony apart from the loss of reputation and thus defamed & that due to it a false criminal case (No. 84 of 1974) has been started by accused No. 1 to 3 (petitioners No. 1 to 3 here). He further alleged in the same para that "thus an the accused persons with common intention to lower down the complainant in the eyes of other persons pursued the matter illegally and the complainant was being called as an accused. In the documents filed and relied on by the complainant/non-applicant, referred to above, there is no incriminating act on the part of the petitioners No. 2 to 4. The statement of the complainant recorded on oath also does not make out any offence against the petitioners No. 2 to 4. Thus, after perusal of the complaint, documents on record and the statement of the complainant recorded in support of the same, taken together at their face value do not disclose the essential ingredients for the alleged offences nor do they make out any prima facie case against them so as to enable the learned Magistrate to proceed against the petitioners No. 2 to 4 and to issue process against any of them and, therefore, direction for issue of process against them is capricious and arbitrary which amounts to abuse of the process of Court which could not be permitted to continue. AIR 1976 SC 147, relied on. Petition allowed.