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Showing contexts for: 197 cr pc in Mahavir Singh vs State & Ors on 3 December, 2018Matching Fragments
13. During the pre-summoning inquiry, the petitioner had examined, besides himself, six other witnesses, they including his daughter (Sunita) as CW-2, his son (Bablu) as CW-3, two doctors namely Dr. Sachin Harit as CW-6 and Dr. Ranjeetesh Kumar as CW- 7, besides two police officials, the medical evidence would show injuries having been suffered by the petitioner. The CMM was conscious that the issue of sanction under Section 197 Cr. PC was required to be considered. He, however, referred to a decision of this court reported as Jinender Singh vs. State, 1997 (3) RCR (Criminal) 691, and observed that the acts of commission or omission attributed to the respondents were "beyond discharge of their official duties" and consequently, the protection of Section 197 Cr. PC was not available to them.
14. The Additional Sessions Judge, on the other hand, held that the protection under Section 197 Cr. PC could not be denied and observed that since the acts of commission or omission attributed to them pertain to the events that occurred during the discharge of their official duties, no part being segregatable, the prosecution on complaint could not proceed without prior sanction under Section 197 Cr. PC. In taking his view, reliance was placed on the decision of the Supreme Court in Crl. Appeal No.722/2015, titled D.T. Virupakshappa vs. C. Subash, decided on 27.04.2015.
"120. From the above, it can be concluded that there can be no thumb rule that in a prosecution before the court of Special Judge, the previous sanction under Section 19 of the POC Act would invariably be the only pre-requisite. If the offences on the charge of which the public servant is expected to be put on trial include offences other than those punishable under the POC Act, that is to say under the general law (i.e. penal code), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction under Section 197 Cr. PC. There is a material difference between the statutory requirements of Section 19 of the POC Act, on one hand, and Section 197 Cr. PC, on the other. In prosecution for offences exclusively under the POC Act, the sanction is necessary qua the public servant.
In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction under Section 197 Cr. PC depends on the factual aspects. The test in the latter case is of the "nexus" between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 Cr. PC on such reasoning. The "safe and sure test", as laid down in the case of Centre for Public Interest Litigation (supra), is to find if the omission or neglect to commit the act complained of would have made the public servant answerable for charge of dereliction of his official duty. He may have acted "in excess of his duty", but if there is a "reasonable connection"