The requirement for prior sanction under Section 197 CrPC for prosecuting police officers is applicable only when acts are not outside the scope of their official duties.

JUDGEMENT

Heard the learned advocates and the respondent No.2 - Shri Akshay B. Singh Gadhvi. 2.This revision application preferred under Section 397 read with Section 401 CrPC arises from the judgment and order dated 21st January, 2000, passed by the learned Additional Sessions Judge, Surat in Criminal Revision Application No.51/99. 3.The respondent No.2 herein has lodged complaint No.7276/96, in the Court of learned Chief Judicial Magistrate, Surat, renumbered as Criminal case No.3086/98. On perusal of the complaint it appears that the complainant had some altercation with his neighbours which resulted into physical assault. When the complainant went to the police station for lodging complaint against the said neighbours are police officers present there did not register the complaint of the complainant and instead started beating him, kept him in the lockup and tortured him. The police officers referred to by the complainant are one Police Sub Inspector Shri Solanki and the Police constable. The complainant has also referred to the Police Inspector Shri Rathod, the petitioner, who according to the complainant was present in the police station at the relevant time. It is alleged that the Police Inspector Rathod, the present petitioner, and the other police officers conspired with one another and the other accused to subdue the complainant and to pressurize him into withdrawing the complaint previously lodged by the complainant against one Kamlesh Desai. The petitioner is therefore, arraigned as accused No.9 in the said complaint. The petitioner is alleged to have committed offences punishable under Sections 323, 504, 506, 341, 342 and 114 I.P.C. Pursuant to the said complaint, process has been ordered to be issued against the petitioner also. The petitioner filed application Exh.90 contending therein that the petitioner being a Police Inspector, no cognizance could have been taken of the offence alleged to have been committed by the petitioner in discharge of his duties without the previous sanction of the State Government as envisaged under Section 197 (2) CrPC. The said application Exh.90 made by the petitioner was allowed by the learned Magistrate under his judgment and order dated 3rd April, 1999. Feeling aggrieved, the respondent No.2 preferred Criminal Revision Application No.51/99 before the learned Additional Sessions Judge, Surat. The learned Judge was pleased to allow the said revision application under his judgement and order dated 21st January, 2000. Feeling aggrieved, the petitioner has preferred the present revision application.

4.Mr.Nanavaty has submitted that the only allegation made against the petitioner is that of not recording the complaint intended to be lodged by the respondent No.2. The said act of omission can be said to have been done in the discharge of duty. For any such act of omission no cognizance of the offence could have been taken by the learned Magistrate, without the previous sanction of the State Government as envisaged under Section 197 (2) read with Section 197 (3) Cr.P.C. In support of his arguments he has relied upon the judgement of this Court in the matter of Bhikhaji Vaghaji v. L.K. Barot and Ors. (1981 G.L.R. 956) and of the Hon'ble Supreme Court in the matter of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors. (1998 (1) S.C.C. 205) and in the matter of Abdul Wahab Ansari v. State of Bihar and Anr. ((2000 (7) Supreme Court 177). In the matter of Bhikhaji Vaghaji (supra), the Division Bench of this Court had an occasion to consider whether Section 197 CrPC shall apply to the Police Inspectors also. The Court has held that a Police Inspector can be dismissed or removed from his