Bombay High Court
Balwant Saybanna Jamadar vs The State Of Maharashtra And Others on 8 August, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:21931-DB
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IN THE JUDICATURE OF HIGH COURT AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2389 OF 2024
Balwant Saybanna Jamadar,
Age : 57 Years, Occu. : Service,
R/o. Kasagi, Tq. Omerga,
Dist. Osmanabad.
At present R/o. Pawdewadi Naka,
Farande Nagar, Nanded,
Tq. & Dist. Nanded. .... Applicant
VERSUS
1. The State of Maharashtra,
Through Officer In charge,
Police Station Parali (City),
Dist. Beed.
2. Police Inspector,
Maharashtra State Crime
Investigation Department, Beed,
Dist. Beed.
Mayadevi Tatyarao Danke,
Age : 50 Years, Occu. : Service,
R/o. Office of C.I.D. Beed,
Dist. Beed.
3. Laxmibai Sambhaji Jogdand,
Age : 74 Years, Occu. : Homemaker,
R/o. Nagapur Camp, Tq. Parali (V),
Dist. Beed. .... Respondents
....
Advocate for Applicant : Mr. Sudarshan J. Salunke
APP for Respondent Nos.1 and 2-State : Mr. N.R. Dayama
Advocate for Respondent No.3 : Mr. Uttam L. Telgaonkar and
Mr. Nitin U. Telgaonkar
....
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CORAM : SMT. VIBHA KANKANWADI &
SANJAY A. DESHMUKH, JJ.
Dated : 08th August 2025
PER COURT :-
1. The present application has been filed by invoking the
inherent powers of this Court under Section 482 of the Code of
Criminal Procedure, 1973 (for short, "Cr.P.C."), for quashment of the
First Information Report (for short, "FIR"), vide C.R. No.0340 of 2016,
dated 29.09.2016, registered with Parali City Police Station, Dist.
Beed, for the offences punishable under Sections 302, 166, 167, 193,
217, 218, 220, 323, 330, 331, 348, 201, 120(B) read with Section 34
of the Indian Penal Code, 1860 (for short, "IPC"), Section 147 of the
Maharashtra Police Act, 1951 and Section 3(2)(va) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for
short, "Atrocities Act") and for quashment of the supplementary
charge-sheet filed against the applicant in the said crime, for the
offences punishable under Sections 166, 167, 193, 217, 218 of IPC.
2. Heard learned Advocate for the applicant and learned
Advocate for respondent No.3 as well as learned APP for respondent
Nos.1 and 2-State .
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3. Learned Advocate for the applicant submits that an FIR
came to be lodged vide C.R. No.0340 of 2016 on 29.09.2016, with
Parali City Police Station, Dist. Beed. At that time, it was for the
offences punishable under Sections 306, 330, 331, 348, 323 read with
Section 34 of IPC. A charge-sheet in the said matter came to be filed
on 05.01.2021 and at that time, it was not under the provisions of the
Atrocities Act and therefore, it was registered as R.C.C. No.04 of
2021, before the learned Judicial Magistrate First Class, Parali
Vaijnath, Parli, Beed. De facto complainant i.e. mother of deceased
Tukaram Sambhaji Jogdand, approached this Court by filing Criminal
Writ Petition No.431 of 2022 (Laxmibai W/o. Sambhaji Jogdand and
Others Vs. The State of Maharashtra and Others) and by order dated
10th March 2023, it was concluded that an offence under Section 302
of IPC should be added and appropriate steps to be taken by resorting
to Section 173(8) of Cr.P.C. Therefore, further investigation has been
done and the supplementary charge-sheet has been filed on
10.07.2023, for the offences punishable under Sections 302, 166,
167, 193, 217, 218, 220, 323, 330, 331, 348, 201, 120(B) read with
Section 34 of IPC, Section 147 of the Maharashtra Police Act, 1951
and Section 3(2)(va) of the Atrocities Act.
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4. Learned Advocate for the applicant further submits that
cognizance has been taken by the learned Special Judge under the
Atrocities Act on 10.07.2023. It is submitted that when the original
charge-sheet was filed, at that time, the present applicant was not
shown as an accused and his name is appearing at Sr. No.39 in the
witness list. His statement has been recorded under Section 161 of
Cr.P.C. The death in the matter of one Tukaram Sambhaji Jogdand,
has been taken as the custodial death as it has occurred in the police
station. When the earlier charge-sheet i.e. the main charge-sheet was
filed, the Government had accorded sanction to prosecute those five
accused persons by order dated 22.12.2020. However, when the
present applicant was made as an accused in the supplementary
charge-sheet, sanction had not been obtained to prosecute him. The
allegations against the present applicant are that, it was his duty to
visit the lock-up and check the lock-up guard as well as check the
accused. However, he has not done his duty. He had intentionally not
taken any entry in the register and he gave false information that
when he had checked the lock-up, neither the accused nor the guard
was present; thereby he misled the investigation. If it was the part of
his duty to check the lock-up and take the entries, then for
prosecuting him for not performing the said act, a sanction under
Section 197 of Cr.P.C. was necessary.
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5. Learned Advocate for the applicant relies on the decision
of the Hon'ble Supreme Court in P.K. Choudhury Vs. Commander,
[AIR 2008 SC 1937], wherein it has been observed that when the
appellant was admittedly a public servant and he is said to have
misused his position as a public servant, then as per the requirements
of Section 197 of Cr.P.C., there should be a sanction to prosecute him,
from the competent authority, as the offences under Sections 166 and
167 of IPC have a direct nexus with commission of a criminal
misconduct on the part of a public servant, indisputably an order of
sanction was pre-requisite.
6. Learned Advocate for the applicant further places
reliance on the judgment of the Division Bench of this Court, Bench at
Nagpur in Shriniwas Reddy Kankanala Vs. State of Maharashtra and
Another, [2024(4) Mh.L.J. (Cri.) 510], wherein reliance has been
placed on the decision of a Three Judge Bench of the Hon'ble Apex
Court in B. Shaha and Others Vs. M/s Kochar, [(1979) 4 SCC 177]
and it was held that undisputedly, the applicant is a public servant
and at the relevant time, was discharging his official duty. Admittedly,
cognizance has been taken and charge-sheet has been filed without
obtaining sanction, whilst according to the State the proposal is
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pending. In the circumstances, the prosecution without sanction is not
approvable in the law.
7. Learned Advocate for the applicant further places
reliance on the judgment of the Hon'ble Supreme Court in
G.C. Manjunath and Others Vs. Seetaram, [2025 0 SC 582] , wherein
it has been observed that any action undertaken by a public officer,
even if in excess of authority vested in them or overstepping confines
of their official duty, would nonetheless attract statutory protection,
provided there exists a reasonable nexus between act complained of
and officer's official functions. Absence of necessary sanction vitiates
very initiation of criminal proceedings against accused persons.
8. Learned APP strongly opposes the application and
submits that though the applicant was cited as a witness when the
first charge-sheet was filed, yet it was, thereafter, transpired that he
has made that statement intentionally to misguide the investigation.
He was duty bound to tell the truth and in spite of having the accused
in the lock-up, yet he has made the negative statement. Learned APP
relies on the written instructions to him by Police Inspector, Crime
Investigation Department, Latur, wherein reliance has been placed on
the judgment of the Hon'ble Supreme Court in Om Prakash Yadav Vs.
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Niranjan Kumar Upadhyay and Others, [2024 SCC Online SC 3726] ,
wherein also, account of the earlier decisions were taken and the
Investigating Officer is of the opinion that there is absolutely no
necessity to obtain sanction.
9. Learned Advocate appearing for respondent No.3, who is
the mother of deceased Tukaram Jogdand, takes us through the
background of the case and submits that deceased Tukaram came to
be taken into custody around 19.30 Hrs. on 15.08.2014 and was kept
in the lock-up till 16.00 Hrs. on 16.08.2014. It was the illegal
detention. He was tortured. He ultimately hung himself. Initially, only
five persons came to be added as accused. Of course, it was not a
simple battle for respondent No.3, because her FIR was not taken
immediately. Thereafter, when the FIR was lodged, it was by Police
Inspector Smt. Danke, attached to Crime Investigation Department,
Beed. Section 306 of IPC was invoked and therefore, respondent No.3
was required to approach this Court by filing Criminal Writ Petition
No.431 of 2022. It was taken as custodial death in view of the final
concluding remarks in respect of the post mortem report and
therefore, steps were directed to be taken by the Investigating Officer
by resorting to Section 173(8) of Cr.P.C.
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10. Learned Advocate for respondent No.3 further submits
that the present applicant was specifically assigned with the duty to
check the lock-up and the accused persons. He has given false
statement and misled the investigation. For the mistakes or lacunas
left by the Investigating Officer, respondent No.3 should not suffer. It
can certainly be said that it was an inhuman act done to deceased
Tukaram Jogdand, by illegally detaining him and levelling false
allegations against him. Now, let the point be decided by the trial
court as to whether the sanction was necessary or not. This case
should not be considered for exercising of powers under Section 482
of Cr.P.C.
11. Almost all the facts are taken note of by this Court and
therefore, we would like not to repeat the same. However, only
necessary facts are being taken. In the supplementary charge-sheet,
the role of the present applicant has been separately given. It has
been stated that the present applicant was serving as a Reader with
Sub-Divisional Police Office, Ambejogai. He was having night duty in
the intervening night of 15.08.2014 to 16.08.2014. He visited Parali
City Police Station's lock-up at 01.29 Hrs. on 16.08.2014. But he had
not checked the lock-up record nor made any inquiry with the
accused, who was illegally detaining. It is stated that he gave false
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statement that neither the accused nor the guard was present in the
lock-up when he checked the lock-up. The prosecution has levelled
specific sections against him i.e. Sections 166, 167, 193, 217, 218 of
IPC.
12. Here, the observations from P.K. Choudhury (Supra)
would come into play as regards the offences punishable under
Sections 166 and 167 of IPC, as there was direct nexus with the
commission of a criminal misconduct alleged on the part of the
applicant, who is a public servant and therefore, it was pre-requisite
to take sanction to prosecute the applicant.
13. The Investigating Officer cannot have a decision that
sanction is not required for prosecuting the accused. The legal
position that was carved out in Om Prakash Yadav (Supra) at the end
appears to have not been seen by him. It has been held in para.74 of
the judgment thus :
"The legal position that emerges from the discussion of the
aforesaid case laws is that
(i) There might arise situations where the complaint or the
police report may not disclose that the act constituting the
offence was done or purported to be done in the discharge of
official duty. However, the facts subsequently coming to light
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may establish the necessity for sanction. Therefore, the
question whether sanction is required or not is one that may
arise at any stage of the proceeding and it may reveal itself in
the course of the progress of the case.
(ii) There may also be certain cases where it may not be
possible to effectively decide the question of sanction without
giving an opportunity to the defence to establish that what the
public servant did, he did in the discharge of official duty.
Therefore, it would be open to the accused to place the
necessary materials on record during the trial to indicate the
nature of his duty and to show that the acts complained of
were so interrelated to his duty in order to obtain protection
under Section 197 CrPC.
(iii) While deciding the issue of sanction, it is not necessary
for the Court to confine itself to the allegations made in the
complaint. It can take into account all the material on record
available at the time when such a question is raised and falls
for the consideration of the Court.
(iv) Courts must avoid the premature staying or quashing of
criminal trials at the preliminary stage since such a measure
may cause great damage to the evidence that may have to be
adduced before the appropriate trial court."
14. In Sriniwas Reddy Kankanala (Supra), this Court has
considered the Three Judge Bench decision in B. Shaha and Others
(Supra). Therefore, we should take into consideration it as the law of
precedent makes it mandatory to consider the decision of a Three
Judge Bench of the Hon'ble Apex Court and in which, it is held thus :
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"The words "Any offence alleged to have been committed by
him while acting or purporting to act in the discharge of his
official duty" employed in section 197(1) of the Code, are
capable of a narrow as well as wide interpretation. If these
words are construed too narrowly, the section will be
rendered altogether sterile, for it is no part of an official duty
to commit an offence, and never can be. In the wider sense,
these words will take under their umbrella every act
constituting an offence, committed in the course of the same
transaction in which the official duty is performed or purports
to be performed. The right approach to the import of these
words lies between these two extremes. While it is not every
offence committed by a public servant while engaged in the
performance of his official duty, which is entitled to the
protection of Section 197(1), an act constituting an offence,
directly and reasonably connected with his official duty will
require sanction for prosecution under the said provision."
15. Further, in G.C. Manjunath and Others (Supra) also,
B. Shaha and Others (Supra) has been referred. We must understand
as to why the protection is given to a public servant from prosecution,
thereby making the sanction to prosecute under Section 197 of
Cr.P.C. compulsory. It has been observed in G.C. Manjunath and
Others (Supra) in para.30 that :
"A careful reading of Section 197 of the Cr.P.C. unequivocally
delineates a statutory bar on the Court's jurisdiction to take
cognisance of offences alleged against public servants, save
without the prior sanction of the appropriate Government.
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The essential precondition for the applicability of this
provision is that the alleged offence must have been
committed by the public servant while acting in the discharge
of, or purported discharge of, their official duties. The
protective mantle of Section 197 of the Cr.P.C., however, is
not absolute and it does not extend to acts that are manifestly
beyond the scope of official duty or wholly unconnected
thereto. Acts bereft of any reasonable nexus to official
functions fall outside the ambit of this safeguard and do not
attract the bar imposed under Section 197 of the Cr.P.C."
16. The provision has been made to protect the public
servants from malicious prosecution, otherwise it will not be possible
to a public servant to discharge his duties without fear or favour. The
object and purpose of this section was also considered in Gurmeet
Kaur Vs. Devender Gupta, [2024 SCC Online SC 3761] and it has
been noted in G.C. Manjunath and Others (Supra). It has been
therefore, stated that :
"The guiding principle governing the necessity prior sanction
stands well crystallized. The pivotal inquiry is whether the
impugned act is reasonably connected to the discharge of
official duty. If the act is wholly unconnected or manifestly
devoid of any nexus to the official functions of the public
servant, the requirement of the sanction is obviated.
Conversely, where there exists even a reasonable link between
act complained of and the official duties of public servant, the
protective umbrella of Section 197 of the Cr.P.C. and Section
170 of the Police Act is attracted. In such cases, prior sanction
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assumes the character of a sine qua non, regardless of
whether the public servant exceeded scope of authority or
acted improperly while discharging his duty."
17. We reiterate that the Investigating Officer ought not to
have taken the call upon himself and the decision that the sanction is
not required. If that logic is to be applied, then why he had obtained
the sanction for the earlier five police officers, whose alleged roles are
much graver than the role tried to be attributed to the present
applicant. We would also like to clarify that in Sriniwas Reddy
Kankanala (Supra), it was submitted that the sanction proposal was
forwarded prior to the filing of the charge-sheet and it was still
pending and therefore, it appears that the liberty was then given to
resubmit the charge-sheet against the applicant, in case of grant of
sanction. We are not inclined to grant any such liberty in view of the
fact that the Investigating Officer stated that no such move was made
by him to the appropriate authority.
18. Since the law point has been raised and it appears that,
without considering the point of sanction, cognizance has been taken
by the learned Special Judge under the Atrocities Act on 10.07.2023,
which was against the mandate and the statutory bar, it vitiates the
proceedings itself to be undertaken against the applicant. We,
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therefore, find this to be a fit case where we should exercise our
powers under Section 482 of Cr.P.C. Hence, we proceed to pass the
following order.
ORDER
I) The application stands allowed.
II) The First Information Report vide C.R. No.0340 of
2016, dated 29.09.2016, registered with Parali City Police Station, Dist. Beed, for the offences punishable under Sections 302, 166, 167, 193, 217, 218, 220, 323, 330, 331, 348, 201, 120(B) read with Section 34 of the Indian Penal Code, 1860, Section 147 of the Maharashtra Police Act, 1951 and Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, stands quashed and set-aside as against the present applicant.
III) The supplementary charge-sheet in C.R. No.0340 of 2016, dated 29.09.2016, registered with Parali City Police Station, Dist. Beed, filed against the present applicant, for the offences punishable under Sections 166, 167, 193, 217, 218 of the Indian Penal Code, 1860, stands quashed and set-aside as against the present applicant.
[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
asd