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2023 Supreme(Online)(Bom) 24793
BOMBAY HIGH COURT
KISHORE C. SANT, J
Uddhav s/o Tukaram Sarode – Appellant
Versus
Shailendra s/o Laxmanrao Samale – Respondent
Criminal Writ Petition No. 944 of 2022
For the Appellants/Petitioners: Mr. Mahesh S. Taur
For the Respondents: Mr. Sudhir K. Chavan
Public servants cannot claim protection under Section 197 if their actions clearly fall outside the scope of their official duties, allowing for prosecution.
Headnote:(A) Criminal Procedure Code, 1973 - Section 197 - Indian Penal Code, 1860 - Sections 464, 468, 474, 420, 218 - Petitioners, public servants, charged with crimes related to property sale - Court held that actions fell outside official duties, requiring sanction for prosecution. (Paras 8, 9, 12, 14)
(B) Discharge Application - Public servants seeking protection under Section 197 must demonstrate acts within official capacities - Allegations here showed knowledge of fraudulent entries, hence prosecution permissible without sanction. (Paras 12, 14)
Facts of the case:
Petitioners were accused in a case where a land sale was conducted improperly. They sought discharge on grounds of prosecutorial sanction being required due to their status as public servants.
Findings of Court:
The court found the order allowing discharge was erroneous, processing entries under fraudulent circumstances warranted prosecution.
Issues: Main questions concerned statutory protection for public servants under criminal allegations concerning official duties versus fraudulent actions.
Ratio Decidendi: The court ruled that lack of sanction can allow for prosecution when public servants are implicated in actions outside the purview of their official duties.
Result: The petition was dismissed.
| Table of Content |
|---|
| 1. overview of charges against public servants regarding fraudulent land sale. (Para 3 , 4 , 5 , 6) |
| 2. court's observations on whether acts were within official duties. (Para 7 , 9 , 11) |
| 3. arguments regarding the necessity of sanction for prosecution. (Para 8 , 10 , 12) |
| 4. court's decision on the applicability of section 197 and alleged misconduct. (Para 14) |
| 5. final ruling dismissing the petition. (Para 15) |
1. Rule.
2. Rule made returnable forthwith. Heard by consent of the parties.
3. The present petition is filed by original accused no. 5 and 6 in R.C.C. No.280/2013 pending before the learned Judicial Magistrate First Class, Parbhani. Both the accused are public servants.
4. The facts in short are that respondent no.2 filed Criminal Miscellaneous Application, seeking direction under Section 156(3) of the Code of Criminal Procedure for the offences punishable under Sections 464 , 468, 474, 420, 218 read with Section 34 of the Indian Penal Code. It is alleged in the said application that the complainant has dispute over a land with his brothers and on that various proceedings were filed. There was already a partition in the year 1993 and mutation was taken in the name of father of the complainant. In the revenue proceedings, mutation entry taken in the name of complainant bearing no. 4645, was maintained as it is. However in spite of that accused no.1 sold the land in favour of accused no.2. Accused no.3 and 4 though were aware of this position, still they have signed as witness to the said documents. Accused no.1 and 2 thereafter filed application for recording their names in the revenue record on the said property. It is alleged that accused no.5 and 6 i.e. present petitioner nos. 1 and 2 were working as Talathi and Circle Officer respectively, have taken entries in the name of accused no.2 in spite of having knowledge that accused no.1 had no right over the property.
5. The learned Magistrate, Parbhani recorded verification of the complainant and passed an order of issuance of process against the present petitioners only for the offence punishable under Section 218 of IPC and against other accused for the offences punishable under Sections 464 , 468, 474, 420 of IPC . The present petitioners filed Revision Application No.110/2013 in the Court of learned Sessions Judge, Parbhani, challenging order of issuance of process. Other accused persons filed Revision Application No.43/2013. The learned Additional Sessions Judge, Parbhani rejected both the Revisions. These petitioners therefore filed Criminal Writ Petition No.1213/2013 in this Court, whereas the other accused persons filed Writ Petition No.1215/2013. Vide order dated 25.02.2014, this Court considering the case in details, dismissed both the petitions. This Court in paragraph no.8 of the said order in Writ Petitions, specifically observed that the provisions of Section 218 of IPC are definitely attracted. Further it is observed that there is material in support of the allegations that these two revenue officers had joined hands with the accused no.1 by making a wrong entry, which created one more dispute. It is observed that there is sufficient material for issuing process for the offence punishable under Section 218 of IPC . The parties thereafter even approached the Honble Apex Court. However even their ’ petition came to be dismissed.
6. After loosing the matter in the Honble Apex Court, as ’ against the order of issuance of process, the present petitioners filed application for discharge. The learned J.M.F.C., Parbhani allowed the said application holding that since no sanction under Section 197 of Cr.P.C., was obtained against the present petitioners. By order dated 24.01.2018, the petitioners came to be discharged.
7. Respondent no.1 being aggrieved by the order of discharge, filed Criminal Revision No.49/2018 in the Court of learned Additional Sessions Judge, Parbhani. The learned Additional Sessions Judge by impugned order allowed the said Rev
