Sanction under Section 197(1) of Cr.P.C. is mandatory for taking cognizance against a public servant discharging official duties.

ORDER

The petitioner is the 4^th accused in C.C.No.996/2019 on the file of the Court of the Judicial First Class Magistrate, Karunagapally, Kollam (‘Trial Court’, in short), which was registered on the basis of the private complaint filed by the 2nd respondent alleging the commission of the offences punishable under Sections 417 , 420, 423, 465, 468, 163, 167 and 120(b) read with Section 34 of the Indian Penal Code .

2. The petitioner had filed this criminal miscellaneous case to quash Annexure 1 complaint and Annexure 2 order taking cognizance of the above offences as against the petitioner.

3. The substratum of the prosecution case is that the

2^nd respondent’s marriage with her husband was estranged. Consequently, she filed O.P.No.1213/2010 before the Family Court, Kollam, and effected an attachment before the judgment over the property belonging to her husband named Ratnakumar. During the pendency of the case, her husband died on 03.05.2014. The 1^st accused was the close friend of the 2^nd respondent’s husband. Knowing fully well about the attachment effected by the family Court, the accused persons, in furtherance of their common intention, made Ratnakumar execute a document transferring the attached property to the 1^st accused. The accused 2 and 3 are the employees of the 1^st accused. The 4^th accused was the then Sub Registrar of the Karunagapally Sub Registrar Office. Thus, the accused have committed the above offences.

4. I have heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the 2^nd respondent.

5. The learned counsel for the petitioner submits that, the petitioner is totally innocent of the allegations levelled against her. The petitioner had only discharged her official functions as a Sub Registrar of the Karunagapally Sub Registrar Office by registering the document that was presented for registration by Ratnakumar. Since the petitioner has discharged her official functions, the complaint is bad for lack of sanction under Section 197 (1) of the Code of Criminal Procedure (‘Cr.P.C’, in short). It is well settled that the Court shall not take cognizance of the offence without obtaining sanction under Section 197 (1) of Cr.P.C, when a public servant is discharging his/her official duties. Since no sanction has been obtained, the learned Magistrate should not have taken cognizance of the offences. Hence, the complaint is liable to be quashed.

6. The learned Public Prosecutor did not dispute the fact that the document was registered by the 2^nd respondent’s husband in favour of the 1^st accused, while the petitioner was in service. It can only be said that the petitioner had discharged her official functions, therefore, sanction under Section 197 (1) of Cr.P.C. is mandatory.

7. The learned counsel appearing for the 2^nd respondent opposes the Crl.M.C. He submits that, the question whether the petitioner had discharged her official functions, is a matter that is to be decided by the Trial Court. This Court cannot embark upon a mini trial and conclude that the petitioner has not committed the above offences. Hence, the Crl.M.C. may be dismissed.

8. The essence of the prosecution case is that, on

13.03.2013, the 2^nd respondent’s late husband had executed a document in favour of the 1^st accused by transferring his rights over a property that was attached by the Family Court. The specific allegation against the petitioner is that, she had permitted the registration of the document, while she was working as a Sub Registrar of Karunagapally Sub Registrar Office. There is no allegation in the Final Report against the petitioner other than the fact that she discharged her functions as a Sub Registrar of Karunagapally Sub Registrar Office.

9. In Rizvan Ahmed v. Jammal Patel [2001 KHC

636], the Hon’ble Supreme Co