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Ganesh Prasad Dubey v/s State of Madhya Pradesh & Others

    M.Cr.C. No. 17981 of 2016

    Decided On, 16 July 2018

    At, High Court of Madhya Pradesh


    For the Petitioner: Santosh Kumar Pathak, Learned Counsel. For the Respondents: Akshay Namdeo, Government Advocate.

Judgment Text

1. This petition has been filed by the petitioner/accused under Section 482 of Cr.P.C. for quashing the order dated 13.07.2016 in Cr.C.No. 321/2013 passed by the Judicial Magistrate First Class, Rewa whereby the trial Court held that sanction under Section 197 of Cr.P.C. is not required for the prosecution of petitioner for committing offences under Section 383 and 384 of Cr.P.C.

2. Briefly stated, the facts of the case are that the petitioner was posted at Police Station Baikunthpur as SHO till 15.05.2013. One Sangeetha Sahu complained against Ram Niwas Sahu-respondent No. 3 for outraging her modesty. FIR was immediately lo

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dged by Duty Officer Dayanand Sharma on 08.08.2011 under Sections 294, 354, 506-Part II of IPC against respondent No. 3. After due investigation, challan was filed in the concerned Court. The trial Court framed charges under Sections 354, and 506-Part II of IPC against respondent No. 3. Thereafter, he absconded. During the abscondence, he filed a private complaint against the present petitioner and prosecutrix Sangeeta Sahu to conceal the fact of pendency of criminal case No. 448/2011 against him.

3. At the time of the incident, the petitioner was a public servant, hence trial Court did not register any case against him for want of prosecution under Section 197 of Cr.P.C. But after the transfer of the earlier presiding officer, a successor Magistrate registered criminal case No. 321/2013 against the petitioner as co-accused without obtaining proper sanction under Section 197 from the competent authority. Thus, he filed an application for deleting his name from the case on the ground of lack of proper sanction from the competent authority. The application was rejected by the trial Court by making a complete avoidance of provisions of Section 197 of Cr.P.C. Hence, the present petition has been filed by the petitioner for quashing order dated 13.07.2016 and for directing the learned Trial Court for deleting the name of the petitioner from the array of accused.

4. Learned Government Advocate appearing for respondent-State and learned counsel appearing for respondent No. 3 strongly opposed the contentions of learned counsel for the petitioner. In the written submission, respondents No. 2 and 3 have submitted that the conduct of petitioner indicates that he demanded money from complainant Ram Niwas Sahu against his official duty. Therefore, the petitioner has failed to make out any prima facie case warranting any kind of interference of this Court. Hence, the petition is liable to be dismissed.

5. Arguments of both the learned counsel for the parties heard. Perused the record.

6. Respondent No. 3 filed a complaint against the petitioner, one Sangeeta Sahu and others on the ground that the petitioner wrongly registered crime against respondent No. 3 for committing offence under Section 354 of IPC with Sangeeta Sahu and detained respondent No. 3 for a night. He demanded Rs. 2,000/- as bribe, hence after received Rs. 2,000/- from the family of respondent No. 3, he released the respondent No. 3 from the custody. Respondent No. 3 tried to lodged the report against him but FIR has not been lodged by the police against the petitioner. Therefore, a private complaint was filed by respondent No. 3 against the petitioner. There is a possibility that as a counter blast, respondent No. 3 filed the private complaint against the petitioner because he was on officially bound to lodge FIR as presented by Sangeeta Sahu. Therefore, sanction under Section 197 of Cr.P.C. is necessary for the prosecution of the petitioner. Without due sanction, his prosecution for the crime under Section 383 and 384 is not maintainable.

7. In case of Shambhoo Nath Misra Vs. State of UP & Ors., (1997) 5 SCC 326, the Hon’ble Supreme Court has held as under :

'The essential requirement postulated for sanction to prosecute the public servant is that the Offence 4 M.Cr.C.No. 17981/2016 alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of the performance of his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197 (1) of Cr, P, C, without previous sanction, the complaint/charge against him for alleged offence cannot be proceeded with in the trial, The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest- and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralizes the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest However, performance of Official duty Under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applies its mind and records finding that the crime and the official duty are not integrally connected.

Section 197 (1) postulates that "'when any person who is 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 of the appropriate Government/authority".'

8. Therefore, as a public servant who perform his official duty, the petitioner is entitled to protection under Section 197(1) of Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with in the trial court.

9. Accordingly, the petition is hereby allowed. Consequently, the prosecution of petitioner under Section 383 and 384 of Cr.P.C. on the complaint of respondent No. 3 is hereby quashed for lack of sanction for prosecution under Section 197(1) of Cr.P.C. He is discharged from the aforesaid charges levelled against him.