Gujarat High Court
Lakhabhai Ambabhai Makwana vs State Of Gujarat on 17 June, 2025
NEUTRAL CITATION
R/SCR.A/3953/2016 ORDER DATED: 17/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3953 of 2016
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LAKHABHAI AMBABHAI MAKWANA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Applicant(s) No. 1
DR.ABHISST K THAKER(7010) for the Respondent(s) No. 2
MR CHINTAN DAVE for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 17/06/2025
ORAL ORDER
1. The instant petition is filed under article 226-227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure challenging the order passed by the learned JMFC in Inquiry Case No. 35 of 2013 whereby he has dismissed the criminal inquiry under Section 203 of the Code of Criminal Procedure confirmed by the learned Sessions Judge in a Criminal Revision No. 11 of 2015.
2. The facts taken from the appeal are as under:
2.1 The petitioner, belonging to the Maldhari community, had gone to a forest area on 21/01/2013 for grazing his cattle, where Respondent No. 2, allegedly in an intoxicated state, assaulted him with a stick and threatened him with a revolver. The petitioner's companion fled in fear, and Respondent No. 2 used abusive language and warned the petitioner not to return.Page 1 of 7 Uploaded by MR.AMIT HEMANTKUMAR SONAGARA(HCD0079) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 22:13:31 IST 2025
NEUTRAL CITATION R/SCR.A/3953/2016 ORDER DATED: 17/06/2025 undefined 2.2 The petitioner filed a complaint on 28/01/2013, registered as Janva Jog Entry No. 5/13 under Sections 323 and 504 IPC. On 08/08/2013, police informed the petitioner that permission to investigate was sought from the Ld. JMFC, Dhari, as the complaint was non-cognizable.
2.3 Due to inaction, the petitioner filed Criminal Inquiry Case No. 35/2013. The police recorded statements under Section 202 CrPC but submitted no report. The complaint was dismissed under Section 203 CrPC on 13/02/2015. The petitioner challenged it before the District & Sessions Judge, Rajula by Revision Application No. 11/2015.
2.4 The revision was dismissed on 13/07/2015. The court held that although a prima facie case existed, sanction under Section 197 CrPC was not obtained since Respondent No. 2 is a government servant. Hence, dismissal under Section 203 was upheld.
3. In essence, the learned JMFC-Dhari dismissed the Criminal Inquiry on the ground that the sanction under Section 197(2) of the CrPC has not been obtained. The accused is the employee of the State Government and the act allegedly done by the respondent no.2, is inseparable nexus with his duties.
4. Heard learned advocate Mr. Hemal Shah appearing for the petitioner. He referred to the judgment delivered by the Hon'ble Apex Court in case of Head Constable Rajkumar etc. Vs. State of Punjab and others (SLP) Criminal Case No.8656 of 2019 along with the allied matters and submitted that petitioner when went to grazing cows/buffaloes into Government land, he has been Page 2 of 7 Uploaded by MR.AMIT HEMANTKUMAR SONAGARA(HCD0079) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 22:13:31 IST 2025 NEUTRAL CITATION R/SCR.A/3953/2016 ORDER DATED: 17/06/2025 undefined severely beaten by the forest guard-accused for which he has no right or duty and therefore it was established by the petitioner that accused has committed offence. Here, learned trial Court without noticing said aspects of the proceedings, under Section 203 of the Code of Criminal Procedure dismissed the Criminal Inquiry on the ground that sanction under Section 197 of the Code of Criminal Procedure has not been obtained. He would submit that the order passed by learned JMFC having been confirmed by the learned Sessions Judge is gross error of law and therefore he preys to allow this petition.
5. Learned advocate Dr. Abhisst Thaker for the private respondent having referred to judgment in case of G C Manjunath and others Vs. Seetaram in Criminal Appeal No. 1759 of 2025 (Supreme Court), submitted that petitioner entered into the Government land illegally and started grazing his cattle on the government land, while private respondent was doing his duty and while doing his duty, he thrashed away the petitioner from the government land and therefore, learned Trail Court has rightly held that no cognizance shall be taken up without prior sanction under Section 197(2) of the Code of Criminal Procedure. He would submit that in a supervisory jurisdiction, in the given facts and circumstances, this Count may not interfere with the concurrent findings. Upon above submissions, he submits to dismiss this petition.
6. Learned APP Mr Chintan Dave adopted the arguments of Learned advocate Mr. Abhisst Thaker and submitted that the learned trial Court has rightly stopped proceeding under Section 203 of the Code of Criminal Procedure and confirmed by the Page 3 of 7 Uploaded by MR.AMIT HEMANTKUMAR SONAGARA(HCD0079) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 22:13:31 IST 2025 NEUTRAL CITATION R/SCR.A/3953/2016 ORDER DATED: 17/06/2025 undefined learned Sessions Judge.
7. Having heard learned advocates for both the sides, at the outset, I may refer to the observation-finding made by the Hon'ble Apex Court in the case of G C Manjunath and others(supra), which reads as under:
"35. Recently, this Court in Gurmeet Kaur vs. Devender Gupta, 2024 SCC OnLine SC 3761 dealt with the object and purpose of Section 197 of the CrPC which reads as follows:
"22. the object and purpose of the said provision is to protect officers and officials of the State from unjustified criminal prosecution while they discharge their duties within the scope and ambit of their powers entrusted to them. A reading of Section 197 of the CrPC would indicate that there is a bar for a Court to take cognisance of such offences which are mentioned in the said provision except with the previous sanction of the appropriate government when the allegations are made against, inter alia, a public servant. There is no doubt that in the instant case the appellant herein was a public servant but the question is, whether, while discharging her duty as a public servant on the relevant date, there was any excess in the discharge of the said duty which did not require the first respondent herein to take a prior sanction for prosecuting the appellant herein. In this regard, the salient words which are relevant under subsection (1) of Section 197 are "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 Page 4 of 7 Uploaded by MR.AMIT HEMANTKUMAR SONAGARA(HCD0079) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 22:13:31 IST 2025 NEUTRAL CITATION R/SCR.A/3953/2016 ORDER DATED: 17/06/2025 undefined shall take cognisance of such offence except with the previous sanction".
Therefore, for the purpose of application of Section 197, a sine qua non is that the public servant is accused of any offence which had been committed by him in "discharge of his official duty". The said expression would clearly indicate that Section 197 of the CrPC would not apply to a case if a public servant is accused of any offence which is de hors or not connected to the discharge of his or her official duty."
36. In light of the aforesaid judgments, the guiding principle governing the necessity of prior sanction stands well crystallised.
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 sanction is obviated. Conversely, where there exists even a reasonable link between the act complained of and the official duties of the public servant, the protective umbrella of Section 197 of the CrPC and Section 170 of the Police Act is attracted. In such cases, prior sanction assumes the character of a sine qua non, regardless of whether the public servant exceeded the scope of authority or acted improperly while discharging his duty.
37. Turning to the case at hand, there is little doubt that the allegations levelled against the accused persons are grave in nature. Broadly classified, the accusations against the accused persons encompass the following: (1) abuse of official authority by the accused persons in allegedly implicating the complainant in fabricated criminal cases, purportedly driven by malice or vendetta; (2) physical assault and ill-treatment of Page 5 of 7 Uploaded by MR.AMIT HEMANTKUMAR SONAGARA(HCD0079) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 22:13:31 IST 2025 NEUTRAL CITATION R/SCR.A/3953/2016 ORDER DATED: 17/06/2025 undefined the complainant by the accused persons, constituting acts of alleged police excess; (3) wrongful confinement of the complainant; and (4) criminal intimidation of the complainant.
38. In the circumstances at hand, we are of the considered opinion that the allegations levelled against the accused persons, though grave, squarely fall within the ambit of "acts done under colour of, or in excess of, such duty or authority,"
and "acting or purporting to act in the discharge of his official duty," as envisaged under Section 170 of the Police Act and Section 197 of the CrPC respectively. This Court, while adjudicating on instances of alleged police excess, has consistently held in Virupaxappa and D. Devaraja, that where a police officer, in the course of performing official duties, exceeds the bounds of such duty, the protective shield under the relevant statutory provisions continues to apply, provided there exists a reasonable nexus between the impugned act and the discharge of official functions. It has been categorically held that transgression or overstepping of authority does not, by itself, suffice to displace the statutory safeguard of requiring prior government sanction before prosecuting the public servant concerned.
39. In the present case, it is an admitted position that the complainant was declared a rowdy sheeter by the Deputy Commissioner of Police, Law and Order (West), Bengaluru City, pursuant to a request made by the Mahalakshmi Layout Police Station, Bengaluru, upon due consideration of the criminal cases registered against the complainant, vide order dated 23.08.1990. Subsequently, multiple criminal cases have been instituted against the complainant. It is in the course of the investigation of these cases that the instant allegations have been levelled against the accused persons. As noted above, any action undertaken by a public officer, even if in excess of the authority vested in them or overstepping the Page 6 of 7 Uploaded by MR.AMIT HEMANTKUMAR SONAGARA(HCD0079) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 22:13:31 IST 2025 NEUTRAL CITATION R/SCR.A/3953/2016 ORDER DATED: 17/06/2025 undefined confines of their official duty, would nonetheless attract statutory protection, provided there exists a reasonable nexus between the act complained of and the officer's official functions."
8. In the present case, if we examine the allegation made by the petitioner against the private respondent, it appears that the private respondent while doing his official duty, had stopped the petitioner from grazing buffaloes in the restricted land. It is alleged that while doing so, private respondent has beaten the petitioner.
9. Looking to the fact and circumstances that the petitioner had entered into the government land without any permission and tried to graze there buffaloes. Private respondent, while performing his duty, has removed the petitioner from the government forest land. As such, the act of the accused is in continuation of his official duty. In the circumstances, essential ingredients of Section 197 of the Code of Criminal Procedure is attracted. Learned trial Court cannot take cognizance without prior sanction under Section 197. Learned trial Court has rightly observed and passed impugned order, which is confirmed by the learned Sessions Court.
10. In the above circumstance, in a limited supervisory jurisdiction under Article 227 of the Constitution of India, I do not find any illegality in the impugned order and hence the petition stands dismissed. Notice is discharged.
(J. C. DOSHI,J) AHS Page 7 of 7 Uploaded by MR.AMIT HEMANTKUMAR SONAGARA(HCD0079) on Sat Jun 21 2025 Downloaded on : Mon Jun 23 22:13:31 IST 2025