Bombay High Court
Sau. Antakala W/O. Shridhar Ramteke vs The State Of Maharashtra Thr. P.S.O. ... on 25 July, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) 71 OF 2018
Sau. Antakala w/o. Shridhar Ramteke,
Aged about 53 years, occ. Social Worker,
R/o. Murtizapur, District Akola
Police Station Murtizapur (Rural) ...APPLICANT
...V E R S U S...
1 The State of Maharashtra,
through PSO Murtizapur (Rural),
District Akola
2 Saidulla Khan Saifulla Khan
Aged about 56 years,
Ex-Sarpanch, r/o. Gat Gram
Panchayat, Arkhed, Tahsil Murtizapur,
District Akola
3 Shri Khodke, Secretary,
Nos. 1 & 2 R/o. Gat Gram
Panchayat, Arkhed, Tahsil Murtizapur,
District Akola
4 Shri Gajanan Agarte,
Block Development Officer(BDO),
Panchayat Samiti Murtizapur,
District Akola ...NON-APPLICANTS
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Shri Shashibhushan Wahane, counsel for applicant.
Shri T.A. Mirza, APP for non-applicant 1.
Shri Amol S. Deshpande, counsel for non-applicant 3 & 4.
None for non-applicant 2.
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CORAM: ROHIT B. DEO, J.
DATE OF DECISION :25.07.2018 Heard Shri Shashibhushan Wahane, the learned ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:33:39 ::: 2 counsel for applicant, Shri T.A. Mirza, the learned Additional Public Prosecutor for non-applicant 1 and Shri Amos S. Deshpande, the learned counsel for non-applicants 3 and 4. None appeares for non-applicant 2, though duly served.
With consent of the learned counsels for the parties the application is finally heard.
2 The challenge is to the order dated 24.11.2017 rendered by the Additional Sessions Judge, Akola in Miscellaneous Criminal Application 75 of 2017 directing the applicant - complainant to obtain the previous sanction of appropriate Government to initiate prosecution against the non-applicants (non-applicants 2, 3 and 4 herein).
3 The applicant preferred complaint before the Special Court under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act ("Atrocities Act" for short) against non-applicants 2 to 4 alleging commission of offence under section 3(1)(m)(q) of the Atrocities Act. The gist of the complaint is that the applicant who belongs to the schedule caste, was prevented from functioning as the Sarpanch between 13.4.2016 and 20.10.2016. The complaint is predicated on the premise that since the ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:33:39 ::: 3 applicant was obstructed and / or prevented from discharging duties as Sarpanch illegally by non-applicants 2 to 4 herein acting in collusion offence under section 3(1)(m)(q) of the Atrocities Act is clearly made out.
4 The learned Special Judge observed in paragraph 11 of the order impugned that the caste of the non-applicants is not mentioned nor is any documents placed on record to show that the non-applicants do not belong to either scheduled caste or scheduled tribe. The learned Special Judge further observes thus:-
"Under such circumstances, if any action is taken under the provisions of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, against the non-applicants, it would be a miscarriage of justice, if it reveals later on that either of the non-applicant belongs to either scheduled caste or scheduled tribe."
The attention of this Court is invited to a decision of the Hon'ble Apex Court in Ashabai Machindra Adhagale..vs..State of Maharashtra & ors., JT 2009(2) SC 441. In view of the enunciation of law by the Hon'ble Apex Court, the observation made and the apprehension expressed by the learned Special Judge are clearly misplaced.
5 The learned Special Judge then observes that from the ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:33:39 ::: 4 posts held by the non-applicants, they are public servants to whom the protective umbrella of section 197 of the Code of Criminal Procedure ('Code' for short) is available. The learned Special Judge records the submission of the rival parties inter-alia the submission of the applicant - complainant that if a public servant commits an illegality or offence which is unconnected with his official duty, protection under section 197 of the Code is not available. However, the learned Special Judge while recording the submission, has not further given any finding on the issue involved. Perusal of the order impugned would reveal that the learned Special judge noticed the submission, then referred to the amendment to section 156 and section 190 of the Code which came into effect on 13.8.2016 and then proceeded to pass the order impugned. The manner in which the issue is dealt with by the learned Special Judge is not entirely satisfactory. 6 The learned Special Judge has not held, either way, whether prima facie the acts attributed to non-applicants 2 to 4 were acts done in purported discharge of official duty. It is trite law, that the Court is not obligated to conclusively decide whether sanction is necessary at the stage of taking cognizance and the adjudication can be postponed to a later stage when the material ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:33:39 ::: 5 on record, collected either in an inquiry under section 202 of the Code or evidence recorded in the trial, may throw better light on whether the acts complained of are protected by the umbrella of section 197 of the Code. Reference may be made to the observations of the Hon'ble Apex Court in Prakash Singh Badal and another..vs.. State of Punjab and another, (2007) 1 SCC 1 and in particular to the following paragraph.
"38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage."
This Court does not consider it appropriate to decide the issue of sanction in these proceedings. The appropriate course would be to set aside the order impugned and remit the matter to the learned Special Judge for appropriate decision.
7 The order impugned is set aside.
8 The learned Special Judge shall hear the applicant and then shall pass a reasoned order recording finding whether acts alleged attract the protective umbrella of section 197 of the Code and whether it would be more appropriate to defer the ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:33:39 ::: 6 consideration of the issue after the 202 inquiry or after the evidence is led at a subsequent stage in the trial.
JUDGE RSB ::: Uploaded on - 27/07/2018 ::: Downloaded on - 28/07/2018 01:33:39 :::