1993 Supreme(MP) 132

M.V. Tamaskar, J.
State of M.P. V. Keshav Prasad
Cr. Revn. No. 444 of 1986 (J); Decided on 10.2.1993.

Headnote:Criminal P.C., 1973 -- S. 197 -- Naib-Nazir of District Court -- removable by District Judge -- no sanction for prosecution necessary -- provisions are attracted only when accused is removable by State Government.

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        This is a revision by the State challenging the order of discharge of the accused on the ground that there was no sanction for prosecution obtained under section 197 of the Code of Criminal Procedure. The accused in the instant case is a Naib-Nazir in the Court of District Judge, Sagar. The appointing authority of the Naib-Nazir is the District Judge not the State Government. The District Judge can remove the Naib-Nazir. No sanction of the State Govt. is necessary for his removal. The learned Judge while discharging the accused stated that since no sanction has been obtained the prosecution cannot be allowed to continue.

        Held : The learned counsel for the accused submitted by relying on AIR 1983 SC 610 and AIR 1965 SC 588 that the act having been committed in purported exercise of power as Naib-Nazir sanction was necessary. He also relied on order passed in Criminal Revision No. 357/86 decided on 19.8.1991 in respect of the same parties wherein Mr. Justice Gupta held that the act was performed by the accused in purported exercise of powers as Naib-Nazir and relying on AIR 1983 SC 610 upheld the order of discharge. The next case i.e. AIR 1965 SC 588 was a case in respect of an Assistant Commissioner who was admittedly removed by the State Government and in absence of any sanction of the State Government the prosecution was illegal. In the case which was decided by Mr. Justice Gupta the question of sanction on the ground that the public servant was not removable by the State Government was neither raised nor considered. In the instant case, Mr. Wadhwa, learned counsel appearing fm the State, contended that since the accused was removable by the District Judge, Section 197 Cr.P.C. was not applicable. The want of sanction on the purported exercise of power by the officers or by the public servant would arise only if the first part of section 197 Cr.P.C. applies and not other. This question was neither raised nor decided in Criminal Revision No. 357/86.

        I may refer to AIR 1964 SC 269 wherein a Sub-Inspector of Police was prosecuted and objection was raised that all inspectors were removable by the State Government and as such even Sub-Inspector could not be prosecuted without the sanction of the State Government. The appointing authority of the Sub-Inspector was Inspector General of Police. The Supreme Court held that since Inspector General of Police was appointing authority and competent to remove no sanction was necessary under section 197 Cr.P.C.

        Shri Wadhwa also relied on 1990 CrLJ 861, AIR 1987 SC 722 and AIR 1990 SC 1976. In all those cases, the officers prosecuted were not removable by the State Government. In any case, principle that when accused is removable by the State Government then alone sanction under section 197 Cr.P.C. is applicable and not otherwise.

        In the instant case, the Naib-Nazir was removable by the District Judge and no sanction of the State Govt. was necessary. In this view of the matter, the discharge of the accused on the alleged ground of non-sanction is palpably wrong. The order deserves to be set-aside.

        The learned counsel for the non-applicant submitted that the accused has acted in purported exercise of his powers as Niab-Nazir and, therefore, sanction was necessary. But the question is whether in the instant case where he was not removable by the State Government alone he can escape merely on the ground that he has misused his powers in purported exercise of his official duties.

        Since the order has been passed against the same accused holding that no sanction is necessary in interpreting section 197 Cr.P.C. by Hon. Gupta, J in Criminal Revision No. 357/86, I express my inability to agree with the said judgment. Ordinarily, I would have referred the matter to Hon. the Chief Justice for constitution of larger Bench to decide the question of law. But, since the matter is concluded by the judgment of AIR 1964 SC 269 I do not think that the same should be referred to the larger Bench and I hold that the sanction would not be necessary for prosecution as the accused was not removable by the State Government. AIR 1983 SC 610 and AIR 1965 SC 588 distinguished. Cr.R.No. 357/86 dissented from. AIR 1964 SC 269, 1990 CrLJ 861, AIR 1987 SC 722 and AIR 1990 SC 1976 followed.