JUDGMENT
B.R. Arora, J.
1. This miscellaneous petition is directed against the order dated July 30, 1987, passed by the Munsif and Judicial Magistrate, First Class, Rajsamand, by which the learned Magistrate dismissed the application filed by the petitioner.
2. The learned Munsif and Judicial Magistrate, Rajsamand, filed a complaint against the petitioner under Section 29 of the Police Act in the Court of the Additional Chief Judicial Magistrate, Rajsamand, with the allegations that in Criminal Case No. 92 of 1982, warrants of recovery were sent to the petitioner for service on accused Jahoor Ahmed and Guldad. These warrants or recovery were issued on August 19, 1983 and the warrants were to be returned on or before November 9, 1983. The petitioner returned those warrants of recovery with the report that accused Guldad had gone to Chittorgarh and accused Jahoor had gone to Udaipur. Despite a clear direction in these warrants or recoveries for attaching the movable properties of the accused Jahoor Ahmed and Guldad in case the amount is not deposited by him, the petitioner did not comply the aforesaid direction and returned the warrants of recoveries with insufficient report. Thereafter a notice was issued to the petitioner to appear in the Court on January 11, 1984 and to show cause why proceedings under Section 29 of the Police Act may not be initiated against him. The petitioner did not file any reply to this notice rather he made a report on the back of the notice itself that the warrants or recovery were submitted to him by Nirbhay Singh, L.H.C. without furnishing the list of the properties belonging to the accused Jahoor Ahmed and Guldad. It was, therefore, prayed that the accused has, thus, committed an offence under Section 29 of the Police Act and he may, therefore, be prosecuted and punished. On the basis of this complaint, the learned Additional Chief Judicial Magistrate, by his order dated May 2, 1984, took cognizance against the petitioner and issued process. The petitioner after putting-up his appearance, filed an application under Section 42 of the Police Act, mentioning therein that the accused is a police servant and, therefore, before filing the complaint against him under section 29 of the Police Act, prior sanction of the Superintendent of Police or the Collector of the respective district is necessary, as required under Section 29(Kh) of the Police Rules. It was, also, prayed that no prosecution against the petitioner can be launched unless and until previous sanction, as required under Section 197(2) of the Code of Criminal Procedure is obtained against the petitioner. The learned Magistrate by his order dated July 30, 1987, rejected the application filed by the petitioner. It is against his order that the petitioner has filed this miscellaneous petition under Section 482 Cr.P.C.
3. Heard learned Counsel for the petitioner and the learned Public Prosecutor.
4. It is contended on behalf of the petitioner that no prosecution against the petitioner can be launched under Section 29 of the Police Act unless and until a previous sanction from the Superintendent of Police or the District Collector is obtained, as required under Section 29(Kh) of the Police Rules. As no previous sanction was taken in this case, therefore, the prosecution against the petitioner under Section 29 of the Police Act deserves to be quashed. The learned Public Prosecutor, on the other hand, has submitted that the act of the petitioner was done in the official discharge or purported discharge of the official duties and, therefore, no previous sanction was necessary in the present case before filing a complaint or launching prosecution against the petitioner. I have considered the rival submisstions made by the parties.
5. In the present case, (being the Incahrge of the Police Station, Rajsamand) the duty of the petitioner was to maintain law and order. The warrant of recovery were sent to the petitioner being the Incharge of the Police Station for getting them served on the accused Jahoor Ahmed and Guldad and to attach the movable properties in case the amount is not paid by them. The allegation against the accused-petitioner is that he returned the warrants of recovery unserved and did not comply the directions given by the Court for attaching the movable properties of the accused Jahoor Ahmed and Guldad. To get the warrants of recovery served, is an official act in the same way its omission or negligence would constitute an omission or neglect in the purported discharge of his duties. According to Section 32 I.P.C., act done includes illegal omission also. By not doing a thing, which was his duty to do, it means that he has neglected in discharge of his official duties and did not comply with the order made by the competent authority. In order to determined whether the petitioner in this case, being a public servant, is entitled to the protection under Rule 97(Kh) of the Police Rules, or a protection under Section 197 Cr.P.C. it has to be considered whether the act complained-of against the petitioner, which is said to be constituting the offence, was committed by him while discharging his official duties and whether the act of the petitioner has a reasonable connection with his official duties. So the point, which requires determination is : whether there was a reasonable connection between the act complained-of and the official discharge of the duties by the petitioner. It the omission or neglect on the part of the petitioner to commit an act complained-of made him answerable for the charge of dereliction of his official duties then it can be said that such an act was committed by the petitions while acting in the discharge of his official duties and there was a connection with the act complained of and the official duties of the petitioner. If the petitioner would have got the warrants or recovery served on the accused-persons and have complied with the order passed by the trial Court then the petitioner would not have committed any offence. But since the petitioner did not get the warrants of recovery served upon the accused persons, he has, therefore, committed an offence by his negligence or his inaction can be said to be a dereliction of his official duties as a public servant. The act was not done by him which he was supposed to do and, therefore, the omission and negligence on the part of the petitioner can be said to be purported discharge of his official duties. In my view, there is, therefore, a coherent nexus between the act complained-of against the petitioner and the duties of the petitioner as a public servant and, therefore, the sanction to prosecute the petitioner in the present case is necessary. In this view of the matter he was entitled for the protection under Rule 97 of the Police Rules. The learned Magistrate was, thus, not justified in rejecting the application filed by the petitioner.
6. In the result, this miscellaneous petition, filed by the petitioner, is allowed. The proceedings initiated against the petitioner in Criminal Case No. 207 of 1987, without a previous sanction, pending in the Court of the learned Additional Chief Judicial Magistrate, Rajsamand, under Section 29 of the Police Act, are quashed.