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Showing contexts for: sanction under section 197 cr.p.c in J.S.B. Chandel vs The State Of Madhya Pradesh on 14 January, 2022Matching Fragments
(2.1) The complainant filed a complaint under Section 200 of Code of Criminal Procedure praying for initiation of appropriate proceedings against the petitioners and other accused persons for the offence punishable under Sections 302, 120-B read with Section 34 and 149 of Indian Penal Code.
(2.2) Thereafter, the statements of complainant/ respondent No.2 and other witnesses were recorded and after recording the statements, CJM, Shahdol dismissed the complaint vide order dated 04.03.2010 inter alia on the ground that the petitioners and other accused persons are government servants and their alleged conduct comes within the parameters of discharge of their official duties. The trial Court in its order has held that before filing the M.Cr.C. No.14484/2012, 4368/2013 & 34749/2019 complaint, no sanction under Section 197 Cr.P.C. has been obtained by the complainant/respondent No.2, which is a mandatory requirement and in absence of valid sanction from the competent authority, the petitioners cannot be prosecuted. (2.3) Against the order passed by the CJM, Shahdol, a criminal revision was filed before the Sessions Court, Shahdol and the Additional Sessions Judge by its order dated 17.05.2010 allowed the revision and remanded the matter back to the Court of CJM directing that the complainant be heard afresh and then appropriate order be passed. Thereafter, the order passed by the Additional Sessions Judge on 17.05.2010 was assailed by the petitioners by filing a revision before this Court which got dismissed vide order dated 13.12.2010.
3. Learned senior counsel for the petitioners has M.Cr.C. No.14484/2012, 4368/2013 & 34749/2019 drawn attention of this Court towards the report of Magisterial enquiry and also the opinion of the National Human Rights Commission and submitted that the son of the complainant/respondent No.2 was convicted for an offence punishable under Section 302/34 of IPC and Section 25 & 27 of the Arms Act registered vide Crime No.442/1994 and in a Sessions Trial No.3/1995, the First Additional Sessions Judge awarded sentence for life to the deceased (son of the complainant). The deceased was in jail since 07.03.1998. Although, he was released on parole for a period from 28.10.2005 to 21.11.2005, but thereafter, he did not surrender and remained absconded. He submits that an order of arrest was also passed against the deceased. He further submits that the petitioners and their subordinate police personnel received an information about the son of the complainant/respondent No.2 and therefore, they intercepted him. He submits that the petitioners are government servants and they cannot be prosecuted without taking sanction under Section 197 of the Cr.P.C. In fact, there is no absolute material available for constituting offence under Sections 302, 120-B read with Section 34 and 149 of Indian Penal Code against the M.Cr.C. No.14484/2012, 4368/2013 & 34749/2019 petitioners. He further submits that sanction under Section 197 of Cr.P.C. is required for initiation of criminal proceedings and to proceed further with the matter. Counsel for the petitioners has submitted that there were several weapons seized from the spot viz. .315 bore Katta, 1 revolver .38, 18 live cartridges of 12 bore, 2 span cartridges, 8 live cartridges 315 bore, 5 cartridges of 315 bore and as per the report those cartridges were used in the weapons seized from the spot. In support of his submission that the petitioners being police officers committed alleged act while discharging their official duties therefore, cannot be prosecuted that too when sanction under Section 197 of Cr.P.C has not been obtained, has relied upon the following decisions of the Supreme Court :-
20. In case of Amal Kumar Jha (supra), the Supreme Court has further reiterated the same view that if a public servant is made an accused for an offence committed by him while discharging his official duties, the previous sanction under Section 197 of Cr.P.C. is indispensable. Although, the Supreme Court has also observed in this case with regard to nexus with discharge of official duties his alleged act is not established then previous sanction or protection as provided under Section 197 of Cr.P.C. is not required to be invoked before taking cognizance. But the Supreme Court in this case has very categorically observed that Section 197 Cr.P.C. can be invoked at initial stage before taking cognizance if the aforesaid nexus is established that the alleged offence has been committed by the police officer or public servant while discharging his official duties. The Supreme Court in the said case has observed as under:-
"5. We agree with the reasons given by the High Court and are of the opinion that in the established facts and circumstances of the case as noticed by the High Court the allegations made against the respondent who was a public servant at the time of the commission of the alleged offence, no cognizance of the offence could have been taken against him in the absence of sanction under Section 197 CrPC. It is not disputed that the actions alleged against him lay within the scope of his official duties or at any event were allegedly committed in the purported discharge of his duties as Director of Enforcement, though it is canvassed that he had abused his official position while discharging his official duties. The High Court has rightly found that that would not oust the necessity of sanction under Section 197 CrPC to take cognizance of the offence. The expression "no court shall take cognizance of such offence except with the previous sanction" occurring in Section 197 CrPC unmistakably shows that the bar on the exercise of powers by the court to take cognizance is mandatory and the previous sanction from the competent authority for prosecution of the public servant, who is accused of having committed an offence either in the execution of his duties or in the purported execution of his duties is essential to take cognizance. Thus in the absence of sanction under Section 197 CrPC the court of the Chief M.Cr.C. No.14484/2012, 4368/2013 & 34749/2019 Metropolitan Magistrate could not have taken cognizance of the offence against the respondent and the High Court, therefore, committed no error in directing the dropping of proceedings against him, in the absence of such a sanction."