Bombay High Court
Ramesh Mahadeo Sawant vs Daulatrao Lembe & Another on 5 August, 1998
Equivalent citations: 1998(5)BOMCR518, 1998(3)MHLJ229
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
ORDER T.K. Chandrashekhara Das, J.
1. This writ petition has come up for hearing on 4-8-1998. The Counsel for the petitioner was absent. The A.P.P. Smt. Usha Kejariwal appeared lor the State. Hence the case was adjourned (or today as part-heard. Today also, when the matter came up before the Court, the Counsel for the petitioner was absent. So I decided to proceed with the matter in the absence of the petitioner or his Counsel. I heard A.P.P. Smt. Usha Kejariwal.
2. The petitioner challenges in this writ petition, the order passed by the Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay on 31-7-1990 in Case No. 34/89, where the first respondent was implicated for the offences punishable under sections 457, 427 and 380 of the Indian Penal Code. The lower Court by the impugned order dismissed the complaint filed by the petitioner for want of sanction under section 197 of the Criminal Procedure Code.
3. The allegation made by the petitioner in the complaint was that while he was working as Manager in Country Liquor Bar bearing the name and style of 'Manashanti Country Liquor Bar' which is situated opposite Novelty Cinema, Bombay-7. He was residing in the premises to room No. 5, Maharaj building, Pathe Baburao Marg, Bombay-8. It is alleged that on 16-12-1983 around 5.00 p.m. the petitioner went to Santacruz to meet his parents. He stayed there at overnight and returned back to his room on the evening of 17-12-1983. When he came to his room he was surprised and shocked to know that somebody had broke opened the lock of his room and that the premises were sealed. He also found that the window panes by the rear side of the room was damaged. When he peeped through the outlet, he saw the articles like furniture, clothes etc. were lying scattered on the floor and that the room was found ransacked. On enquiry he came to know that some time on the previous night, on 16-12-1983 at 11.30 p.m. the respondent who is serving as an Inspector of Police with the company of other Police Constables armed with bamboos, metal rods had visited the premises and it was broke opened by hammering with the metal rods. He also came to know from the neighbours that the room was ransacked, articles of furniture were smashed, and damaged and it also disclosed in the complaint that Shri R.B. Tiwari, Special Executive Magistrate had protested the high-handedness and outrageous act of the respondent. He further alleges that Shri R.B. Tiwari was threatened by the respondent.
4. On the receipt of the complaint filed by the petitioner, the Magistrate had ordered that the Inspector of Police, D.B. Marg Police Station to make a panchanama of the articles and things lying in the room and directed to unseal the room and handed it over to the complainant. This order was came to be passed on 20-4-1983. According to the petitioner the respondent have abused and misused his powers and position and acted in most reckless and high-handed manner. The Court has ordered an enquiry by the Assistant Commissioner of Police, Gavdevi Division. After recording the statements of the witnesses and gathering the materials, the police filed the report before the Court that no offence has been disclosed against the respondent under section 380, 457 and 427 of the I.P.C. On going through the report the learned Magistrate has dismissed the complaint on 27-11-1984. Aggrieved by this order the petitioner had filed a Revision before the learned Sessions Judge, Greater Bombay. The learned Sessions Judge allowed revision on 27-11-1984, set aside the order passed by the learned Magistrate. The learned Magistrate was directed by the learned Sessions Judge to take the case on file and dispose of the same according to law after examining the complainant on oath under section 200 of Cr.P.C. In the Revisional order the Magistrate was also directed to give an opportunity to the petitioner to examine the witnesses. Accordingly the case was further heard. The sworn statement of the petitioner was taken and on that basis a summon was issued against the respondent under sections 457, 427 and 380 of the I.P.C. On receipt of the summons, the respondent appeared and trial started. During the course of the trial an application dated 27-9-1987 was filed by the respondent for discharge, on the ground that no sanction was obtained under section 197 of Cr.P.C. read with section 161 of the Bombay Police Act. The learned Magistrate heard that application and passed the impugned order, discharging the respondent.
5. The learned A.P.P. Mrs. Usha Kejariwal has contended that the respondent was discharging his official duty and in the performance of his official duty if any excess committed by him, it would be disclosed only at the time of trial. The Criminal Procedure Code laid down the procedure for trial of a cognizable offence. Taking cognizance of an offence by the competent Court of jurisdiction at the instance of the Prosecutor or by the private individual under section 200 of the Cr.P.C. is a sine quo non for trial. What is barred by section 197 Cr.P.C. is the very initiation of the proceedings against a Public Servant without a previous sanction. Previous sanction occurring in section 197 Cr.P.C. clearly postulates that even before initiation of a criminal proceeding by a competent Court of criminal jurisdiction against a public servant, the sanction is mandatory. The Court cannot even take cognizance without previous sanction. The word 'previous' in section 197 Cr.P.C. will clearly indicate that even the sanction that is contemplated under section 197 Cr.P.C. is not sufficient to be obtained during the pendency of the trial. An argument has been advanced on behalf of the petitioner in the Court below that the respondent was acting malafide and his action was unauthorised and in fact he has committed the excesses in discharging the official duty as sub-inspector. In this context the learned A.P.P. Smt. Usha Kejariwal has cited before me a decision of the Supreme Court i.e. in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and others, 1981 S.C. page 205. The Supreme Court has clearly held in this judgment that a sanction under section 197 Cr.P.C. is imperative because whether the act alleged in the complaint, or the respondents were guilty of excesses committed by them will be gone into the trial and such trial cannot be proceed without previous sanction. The Supreme Court in the said judgment in para 15 held that :--
"Considering the facts and circumstances of the case, it prima facie appears to us that the alleged acts on the part of the respondents were purported to be in the exercise of official duties. Therefore, a case of sanction under section 197 Criminal Procedure Code, has been prima facie made out. Whether it was unjustified on the part of the respondents to take recourse to the actions alleged in the complaint or the respondents were guilty of excesses committed by them will be gone into the trial after the required sanction is obtained on the basis of evidences adduced by the parties."
The above decision of the Supreme Court is reminded of the legislative intention of section 197 of Cr.P.C. The very object and purpose underlying this section is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. The section takes care of the larger interest of the efficiency of State administration that demands that public servants should be free to perform their official duty fearlessly and underterred by the apprehension of their action being subjected to a prosecution at the instance of the private party who are adversely effected by their official act. In these legal premises. I do not think that the order passed by the learned Magistrate which is impugned in this writ petition require any interference. I find that the order is not tainted with any illegality. In the result, the writ petition is dismissed.
6. In the circumstances there is no order as to costs.
Before parting with this judgment, I record my deep appreciation of the valuable assistance rendered by Smt. Usha Kejariwal appeared for the State in this case.
7. Petition dismissed.