Judgment

1. The prosecution case originates from a written report lodged by the complainant, Shri Vijay Sharma, at Police Station Bajaj Nagar, Jaipur. It was alleged that on 06.03.2002, between 5:00 to 6:00 AM, approximately 50–60 persons, along with several vehicles, unlawfully entered the premises in question and demolished the boundary wall and gate. Damage was allegedly caused to the property and articles lying there and the persons present at the site sustained injuries. It was specifically alleged that the said acts were committed at the instance and under the directions of the Commissioner. On the basis of the above report, FIR No. 101/2002 was registered under Sections 147, 451, 323, and 427 of the IPC, and investigation was set in motion.

After investigation a negative final report was submitted before the competent court. Upon a protest petition filed by the complainant Vijay Sharma, the learned Magistrate took cognizance against the present petitioner on 10.02.2009 which was subsequently affirmed by the revisional court vide order dated 21.05.2018.

2. The present petition assails the aforesaid orders taking cognizance against the petitioner, who at the relevant time was serving as an Enforcement Officer in the Jaipur Development Authority (JDA). The allegations arise out of proceedings undertaken for removal of encroachment from public land.

3. Heard learned counsel for the parties and perused the material available on record.

4. Learned counsel for the petitioner submits that the petitioner was posted as an Enforcement Officer in JDA and was working as a public servant. In furtherance of the official order for removal of encroachment, the petitioner acted in discharge of his official duties. Therefore, the act of the petitioner is protected under Section 197 of the Cr.P.C., which provides that where any offence is alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty, prior sanction of the competent authority is required for prosecution. It is further submitted that the learned Trial Court as well as the Revisional Court have failed to consider the aforesaid mandatory legal provision in its proper perspective and have passed the impugned orders in violation of law. Therefore, the orders passed by the Courts below deserve to be set aside.

5. Learned counsel for the petitioner has placed reliance upon the judgment rendered by Hon’ble Apex Court in the case of Suneeti Toteja Vs. State of U.P. & Anr. reported in 2025 SCC OnLine SC 433.

6. Learned Public Prosecutor has vehemently opposed the submissions made by learned counsel for the petitioner and submitted that the order dated 10.02.2009 passed by the trial Court and order dated 21.05.2018 passed by the revisional Court are just and proper and warrant no interference by this Court.

7. The principal question that arises for consideration is whether sanction under Section 197 of the Code of Criminal Procedure, 1973 was a pre-condition before the learned Magistrate could take cognizance.

8. I have considered the submissions made by both counsel and scanned the matter carefully.

9. For the sake of convenience, the provisions of Section 197 Cr.P.C. are reproduced hereinunder:

“197. Prosecution of Judges and public servants.—

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction (save as otherwise provided in the Lokpal and Lokayuktas Act, 2013)-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed o