{"id":135641,"date":"2010-01-20T00:00:00","date_gmt":"2010-01-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anil-vs-the-on-20-january-2010"},"modified":"2017-04-26T02:13:27","modified_gmt":"2017-04-25T20:43:27","slug":"anil-vs-the-on-20-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anil-vs-the-on-20-january-2010","title":{"rendered":"Anil vs The on 20 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Anil vs The on 20 January, 2010<\/div>\n
Author: H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/798\/2008\t 23\/ 24\tJUDGMENT \n \n \n\n\t\n\n \n\n \n\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 798 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \n\n\n \n\n \nHONOURABLE\nMS. JUSTICE H.N.DEVANI\n \n \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n======================================\n \n\nANIL\nPRATHAM, IPS NOW DIG STATE CID (CRIME) - Applicant(s)\n \n\nVersus\n \n\nTHE\nSTATE OF GUJARAT & 1 - Respondent(s)\n \n\n====================================== \nAppearance\n: \nMR IH SYED for Applicant(s) :\n1, \nPUBLIC PROSECUTOR for Respondent(s) : 1, \nNOTICE SERVED BY DS\nfor Respondent(s) : 2, \nMR KB ANANDJIWALA for Respondent(s) :\n2, \n======================================\n \n\n \n \n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS. JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:  20\/01\/2010 \n\n \n\n \nCAV\nJUDGMENT \n<\/pre>\n
1.\t\tBy
\nthis application under section 482 of the Code of Criminal Procedure,
\n1973, the applicant seeks quashment of Criminal Case No.2107 of 1992
\npending before the learned Judicial Magistrate First Class, Bhuj as
\nwell as the order issuing process on the ground that cognizance has
\nbeen taken by the learned Judicial Magistrate without there being any
\nprior sanction from the Government under section 197 of the Code.\n<\/p>\n
2.\t\tThe
\nfacts stated briefly are that the applicant is an Indian Police
\nService officer and at the relevant time was working as Assistant
\nSuperintendent of Police, Bhuj. It is the case of the applicant that
\non 15.07.1992, a public rally was organized by some local leaders of
\na political party wherein the complainant was a participant. The
\napplicant was deputed for the police bandobust for the said rally.
\nDuring the course of the rally some miscreants tried to disturb the
\nlaw and order situation and at that time the police tried to stop the
\nmob by using due force. In connection with the incident a first
\ninformation report came to be registered against the
\nrespondent-complainant and others vide Bhuj Police Station I-C.R.
\nNo.151 of 1992 for the offences punishable under sections 143, 147,
\n148, 149, 332, 353, 336, 337, 186 of the Indian Penal Code and
\nsection 135 of the Bombay Police Act, 1951. The police arrested the
\ncomplainant and others and produced them before the learned Judicial
\nMagistrate First Class Bhuj on the same day and all the accused were
\nreleased on bail. All the accused were subsequently charge-sheeted.
\nUpon conclusion of the trial, vide judgment and order dated
\n11.10.1995 passed by the learned Chief Judicial Magistrate,
\nBhuj-Kutch, all the accused came to be acquitted.\n<\/p>\n
3.\t\tOn
\n16th
\nJuly, 1992, the respondent No.2 – complainant lodged a complaint
\nagainst the applicant in the Court of the learned Chief Judicial
\nMagistrate, Bhuj being Criminal Complaint No.2107 of 1992 alleging
\ncommission of the offences punishable under sections 323, 504 and
\n506(1) of the Indian Penal Code. The allegations were to the effect
\nthat on 15.7.92 at about 17:30 hours the complainant was walking near
\nthe Collector s office in front of the District Court near Dr.
\nAmbedkar s statue, in the open space near the traffic point when
\nthe applicant ACP all of a sudden got incited and started shouting
\nloudly saying catch him, and caught the complainant and belaboured
\nhim with sticks and at that time other persons who were passing by,
\nnamely, Anil Kumar Dalsukh Vitha, Dilip Jayantilal Joshi, Narendra
\nHaribhai Makwana and Kamlesh Bhagwanji Thakkar were also caught by
\nthe accused and other police officers working under him and the
\naccused without any reasonable cause or reason belaboured the
\ncomplainant and others with sticks and caused injuries to them as
\ndetailed in the complaint. After beating them, the police took the
\ncomplainant and others to the City Police Station and confined them.
\nThe complainant was suffering from severe pain due to the beating and
\nAnil Kumar and Jayantilal were also suffering from severe pain due to
\nthe beating and were even vomiting. The complainant and others were
\nwrongly apprehended and confined
\nand on account of the injuries sustained by them, they
\nrequired medical treatment. However despite making request they were
\nnot provided any treatment nor were they given any food and late at
\nnight the accused threatened them that if they complained about the
\nbeating to anyone, they would be involved in false cases and would be
\nbeaten even more. On account of the threats, when they were produced
\nbefore the Magistrate at night, they did not complain about the
\nill-treatment.\n<\/p>\n
4.\t\tOn
\nthe very same day that the complaint was lodged, the learned Chief
\nJudicial Magistrate recorded the statements of the complainant as
\nwell as other witnesses on oath and directed issuance of process
\nagainst the applicant for the offence under sections 323 and 506(1)
\nIPC. It appears that the applicant filed an application in the Court
\nof the learned Judicial Magistrate First Class, Bhuj, to set aside
\nthe complaint as prior permission had not been obtained under section
\n197 of the Code. The said application came to be rejected vide order
\ndated 30.9.2005 on the ground that the learned advocate for the
\napplicant was not present.\n<\/p>\n
5.\t\tYet
\nanother application was filed by the applicant seeking discharge on
\nthe ground that section 251 of the Code provides for recording the
\nplea of the accused, whereas in the present case no such plea was
\nrecorded. The said application came to be rejected and a revision
\napplication being Criminal Revision Application No.6 of 2007 came to
\nbe filed before the Sessions Court. The revision application came to
\nbe disposed of with a direction to the trial Court to call the
\naccused and record his plea on 18.7.2007. Thereafter, at the stage of
\nrecording of his plea, the applicant moved an application challenging
\nthe maintainability of the proceedings before the trial Court. The
\nsaid application came to be withdrawn as according to the applicant,
\nthe only remedy available to him was to approach this Court by
\ninvoking its inherent jurisdiction.\n<\/p>\n
6.\t\tMr.\n<\/p>\n
I.H. Syed, learned advocate for the applicant invited the attention
\nof the Court to the complaint in question as well as to the contents
\nof the first information report lodged by the police against the
\ncomplainant in connection with the same incident which has given rise
\nto the complaint in question, to submit that the alleged offence was
\ncommitted during bandobust. It was submitted that a rally had been
\ntaken out without permission and despite issuing warning, the crowd
\ndid not disperse.  The police tried to control the crowd with all
\nrestraint, however, the persons forming part of the unlawful assembly
\nstarted pelting stones at the police officers engaged in the
\nbandobust, and hence a light lathi-charge had been carried out to
\ndisperse the violent crowd. It was submitted that it is apparent that
\nthe alleged offences are said to have been committed by the applicant\n<\/p>\n
– accused while he was discharging duties as a public servant and,
\ntherefore, the sanction of the State Government under Section 197 of
\nthe Code would be a condition precedent to taking cognizance of the
\noffence against the applicant. However, the learned Magistrate has,
\nafter recording statements of the complainant and witnesses,
\nstraightaway taken cognizance of the offence despite the fact that
\nthe requirements of Section 197 of the Code have not been complied
\nwith. Reliance was placed upon the decision of the
\nApex Court in S.K.\n<\/p>\n
Zutshi and another vs. Bimal Debnath and another,
\n(2004) 8 SCC 31, for the proposition that Section 197 of the Code
\nfalls under the Chapter dealing with
\nconditions requisite for initiation of proceedings.  That is, if the
\nconditions mentioned are not made out or are absent then no
\nprosecution can be set in motion. The mandatory character of the
\nprotection afforded to a public servant is brought out by the
\nexpression  no court shall take cognizance of such offence except
\nwith the previous sanction . Use of the words  no  and  shall
\nmakes it abundantly clear that the bar on the exercise of power by
\nthe court to take cognizance of any offence is absolute and complete.
\nThe very cognizance is barred.  That is, the complaint cannot be
\ntaken notice of. A court, therefore, is precluded from entertaining a
\ncomplaint or taking notice of it or exercising jurisdiction if it is
\nin respect of a public servant who is accused of an offence alleged
\nto have been committed during discharge of his official duty.\n<\/p>\n
7.\t\tThe
\nlearned advocate for the applicant invited the attention of the Court
\nto the provisions of Chapter XIV of the Code which provides for
\n Conditions requisite for initiation of proceedings , Chapter XV
\nof the Code which provides for  Complaints to Magistrates  and
\nChapter XVI of the Code which provides for  Commencement of
\nproceedings before Magistrates  and more particularly to the
\nprovisions of sections 190, 200 to 204 of the Code to submit that
\ntaking cognizance  is a pre-requisite for issuance of process  under
\nsection 204 of the Code. It was contended that in the facts of the
\npresent case, the process has been issued, which presupposes that
\ncognizance has been taken.  In the circumstances, the issuance
\nof process against the applicant is invalid as the learned Magistrate
\ncould not have taken cognizance on such complaint. Reliance was
\nplaced upon a decision of the Apex Court  in Chief
\nEnforcement Officer vs. Videocon International
\nLimited, (2008) 2
\nSCC 492 for the proposition that Chapter XVI relating to commencement
\nof proceedings before Magistrates will apply only after the
\ncognizance has been taken by a Magistrate under Chapter XIV. Section
\n204 which provides for issuance of process and falls under Chapter
\nXVI would, therefore, come into play only after cognizance has been
\ntaken by the Magistrate. It was submitted that Section 197 of the
\nCode expressly prohibits a Court from taking cognizance of an offence
\ncommitted by a public servant while acting or purporting to act in
\nthe discharge of his official duty, except with the previous sanction
\nof the authority specified under the said provision. In the present
\ncase, admittedly cognizance has been taken without any sanction
\nhaving been obtained, which is contrary to the provisions of Section
\n197 of the Code and as such, the learned Judicial Magistrate has no
\njurisdiction to try the case. It was submitted that in the
\ncircumstances, the Court can neither acquit nor convict the accused
\nand can only discharge the accused.\n<\/p>\n
8.\t\tNext,
\nit was submitted that the present case is a summons triable case
\ninasmuch as all the offences are punishable with imprisonment not
\nexceeding two years, hence, in view of the decision of the Apex Court
\nin Adalat Prasad
\nvs. Rooplal Jindal,
\n(2004) 7 SCC 338, the
\nlearned Judicial Magistrate has no jurisdiction to discharge the
\naccused. The only remedy which is, therefore, available to the
\napplicant is by way of
\nthe present application under Section 482 of the Code. Reliance was
\nalso placed upon the decision of the Apex Court in Balbir
\nSingh vs. State of Delhi,
\n(2007) 6 SCC 226 for the proposition that in absence of sanction, the
\nCourt has no jurisdiction to proceed in the matter and take
\ncognizance of the offence.\n<\/p>\n
 But the order passed in that regard cannot lead to the acquittal of
\nthe accused. The decision of the Apex Court in Subramanium
\nSethuraman vs.  State of Maharashtra,
\n(2004) 13 SCC 324, was also cited for the proposition that as
\nobserved in Adalat Prasad case, the only remedy available to an
\naggrieved accused to challenge an order at an interlocutory stage is
\nthe extraordinary remedy under Section 482 of the Code and not by way
\nof an application to recall the summons or to seek discharge which is
\nnot contemplated in the trial of a summons case. Lastly, the
\nattention of the Court was invited to the provisions of Clause (k) of
\nSection 461 of the Code to submit that the present case would fall
\nwithin Clause (k), hence, the cognizance taken by the Magistrate
\nwould be an irregularity which would vitiate the proceedings.\n<\/p>\n
9.\t\tMr.\n<\/p>\n
K.B. Anandjiwala, learned advocate for the respondent no.2
\noriginal complainant vehemently opposed the application. It was
\nsubmitted that the aspect regarding sanction can be considered at any
\nstage of the trial. It was argued that as to whether the offence has
\nbeen committed by the applicant during the course of discharge of his
\nduties or otherwise is a disputed question of fact which may be
\ndecided by the Trial Court after recording the evidence. It was
\ncontended that the first information report which is produced at
\nAnnexure ‘A’ to the application cannot be looked into at this stage
\nas it does not form part of the record before the learned Judicial
\nMagistrate. It was submitted that the same is in the nature of his
\ndefence, which has to be proved by the applicant before the Trial
\nCourt and that the applicant has yet to prove that the alleged
\noffence was committed in the discharge of his duties. It was
\nsubmitted that on the basis of the averments made
\nin the complaint, the Court was convinced regarding commission of an
\noffence and had, therefore, taken cognizance  thereof. It was pointed
\nout that in connection with the said first information report, the
\naccused therein, including the complainant, were prosecuted and at
\nthe end of the trial, they had been acquitted.  Reliance was placed
\nupon the decision of this Court in Prabhudas
\nBadaji Pandav vs. Faridmiya Huseinmiya Kadri and<\/a> another,
\n1991 (2) GLR 876, wherein it has been held that the question
\nregarding sanction to prosecute can be considered at any stage of the
\nproceedings and while considering this question, it is not necessary
\nfor the Court to confine itself to the allegations only in the
\ncomplaint and that the Court can take into consideration all other
\nmaterials on record at the time when the question is raised.  The
\nquestion regarding sanction can be considered at any time and the
\nfacts and circumstances and the record and the material available at
\nthat juncture can be looked into. Reliance was placed upon the
\ndecision of the Apex Court in Raj
\nKishor Roy vs. Kamleshwar Pandey,
\nAIR 2002 SC 2801 and more particularly to paragraph 11 thereof which
\nreads thus:\n<\/p>\n
 In
\nthis case, as indicated above, the complaint was that the 1st
\nrespondent had falsely implicated the appellant and his brother in
\norder to teach them a lesson for not paying anything to him. The
\ncomplaint was that the 1st respondent had brought an illegal weapon
\nand cartridges and
\nfalsely shown them to have been recovered from the appellant and his
\nbrother. The High Court was not right in saying that even if these
\nfacts are true then also the case would come within the purview of
\nSection 197 CrPC. The question whether these acts were committed
\nand\/or whether the 1st respondent acted in discharge of his duties
\ncould not have been decided in this summary fashion. This is the type
\nof case where the prosecution must be given an opportunity to
\nestablish its case by evidence and an opportunity
\ngiven to the defence to establish that he had been acting in the
\nofficial course of his duty. The question whether the 1st respondent
\nacted in the course of performance of duties and\/or whether the
\ndefence is pretended or fanciful can only be examined during the
\ncourse of trial. In our view, in this case the question of sanction
\nshould be left open to be decided in the main judgment which may be
\ndelivered upon conclusion of trial .\n<\/p>\n
10.\t\tReliance
\nwas also placed on the decision of the Apex Court in State
\nof Maharashtra vs. Devahari Devasingh Pawar,
\n(2008) 2 SCC 540, and more particularly to the contents of paragraph
\n14 wherein the Court has referred to  certain observations made in
\nRomesh Lal Jain vs.
\nNaginder Singh Rana; which
\nshall be referred to hereinafter at an appropriate stage.\n<\/p>\n
11.\t\tAttention
\nwas invited to the fact that from the date of the offence, after
\nissuance of process, the applicant – accused has never remained
\npresent before the learned Magistrate. It was submitted that the
\nexamination-in-chief of the complainant was recorded in the year
\n2006. However, thereafter, the applicant has not remained present to
\ncross-examine the complainant to show that the act was committed
\nduring the course of discharge of his duties. Earlier, an application
\nhad been filed before the learned Magistrate seeking discharge on the
\nground that sanction under Section 197
\nhad not been obtained, which came to be rejected.  Thereafter,
\nanother application came to be filed regarding non-compliance with
\nthe provisions of Section 251 of the Code as regards recording of
\nplea of the accused prior to framing charge which came to be
\nrejected.  The applicant carried the same further in revision before
\nthe Sessions Court, Bhuj, which came
\nto be rejected by an order dated 18th
\nAugust, 2007, passed by the learned Additional Sessions Judge, Fast
\nTrack Court No.5, Bhuj-Kutch. However, it was directed that the plea
\nof the accused be recorded in accordance with law and thereafter,
\ntrial should proceed in accordance with law. It was submitted that
\nthereafter, instead of remaining present before the learned
\nMagistrate for recording of his plea, the applicant filed another
\napplication before the Trial Court challenging the maintainability of
\nthe proceedings which came to be withdrawn. Subsequently, after a
\nperiod of 16 years from the date of issuance of process, the
\napplicant has filed the present application for quashing the
\ncomplaint as well as the process issued pursuant thereto. It was
\nurged that the applicant was trying to protract the trial under one
\npretext or the other and considering the overall conduct of the
\napplicant, he is not entitled to any of the reliefs prayed for. The
\napplication, therefore, deserves to be rejected.\n<\/p>\n
12.\t\tIn
\nrejoinder, Mr. I.H. Syed, learned advocate for the applicant
\nsubmitted that in absence of sanction, there is no bar against
\ninstitution of the proceedings. Hence, lodging of the complaint was
\nnot barred. However, commencement of proceedings under Section 204 of
\nthe Code is invalid without prior sanction as envisaged under Section
\n197 of the Code.  Hence,
\nthe issuance of process against the petitioner stands vitiated as the
\nCourt could not have taken cognizance of the offence without prior
\nsanction for prosecuting the applicant. It was submitted that the
\nissue regarding sanction to prosecute can be raised at any point of
\ntime.  Reliance was placed upon the decision of the Apex Court in
\nRomesh Lal Jain vs.
\nNaginder Singh Rana and others,
\n(2006) 1 SCC 294,
\nfor the proposition that
\na plea relating to want of sanction although desirably should be
\nconsidered at an early stage of the proceedings, but the same would
\nnot mean that the accused cannot take the said plea or the Court
\ncannot consider the same at a later stage. Each case has to be
\nconsidered on its own facts.  Furthermore, there may be cases where
\nthe question as to whether the sanction was required to be obtained
\nor not would not be possible to be determined unless some evidence is
\ntaken, and in such an event, the said question may have to be
\nconsidered even after the witnesses are examined. It was accordingly
\nsubmitted that it was desirable that a plea relating to want of
\nsanction should be considered at an early stage of the proceedings.
\nIt was submitted that on the facts of the present case, it is
\npossible for the Court on the basis of the material on record to
\ndecide the question as to whether sanction was required to be
\nobtained or not.  Hence, it is not necessary to record any further
\nevidence for the purpose of deciding the said question. It was
\nfurther submitted that the question regarding want of sanction now
\ncannot be raised before the Trial Court inasmuch as in view of the
\ndecision of the Apex Court in Adalat
\nPrasad case, the
\nTrial Court is not competent to discharge the accused after the
\nissuance of process.\n<\/p>\n
13.\t\tIn
\nthe background of the aforesaid facts as well as the rival
\ncontentions raised by the learned advocates for the parties, the
\nquestions that arise for determination are firstly, as to whether at
\nthis stage of the proceedings, the question of sanction can be
\nconsidered; secondly, whether on the facts of the present case, it
\nwould be possible to decide the question of sanction at this  stage
\nand lastly, whether on the facts of the present case, the offences
\nalleged have been committed by the applicant during the course of
\ndischarge of his duties so as to attract the provisions of Section
\n197 of the Code which makes sanction to prosecute mandatory for
\ntaking cognizance of the offence.\n<\/p>\n
14.\t\tInsofar
\nas the first question is concerned, the Apex Court in Romesh
\nLal Jain vs. Naginder Singh Rana and others
\n(supra) has, after referring to several of its earlier decisions,
\nheld thus:-\n<\/p>\n
33.
\nThe upshot of the aforementioned discussions is that whereas an order
\nof sanction in terms of Section 197 CrPC is required to be obtained
\nwhen the offence complained of against the public servant is
\nattributable to the discharge of his public duty or has a direct
\nnexus therewith, but the same would not be necessary when the offence
\ncomplained of has nothing to do with the same. A plea relating to
\nwant of sanction although desirably should be considered at an early
\nstage of the proceedings, but the same would not mean that the
\naccused cannot take the said plea or the court cannot consider the
\nsame at a later stage. Each case has to be considered on its own
\nfacts. Furthermore, there may be cases where the question as to
\nwhether the sanction was required to be obtained or not would not be
\npossible to be determined
\nunless some evidence is taken, and in such an event, the said
\nquestion may have to be considered even after the witnesses are
\nexamined.\n<\/p>\n
39.
\nWe may hasten to add that we do not intend to lay down a law that
\nonly because a contention has been raised by the complainant or the
\nprosecution that the question as regards necessity of obtaining an
\norder of sanction is dependent upon the finding of fact that the
\nnexus between the offences alleged and the official duty will have to
\nbe found out upon analysing
\nthe evidences brought on record; the same cannot be done at an
\nearlier stage. What we intend to say is that each case will have to
\nbe considered having regard to the fact situation obtaining therein
\nand no hard-and-fast rule can be laid down therefor.\n<\/p>\n
In
\nthe light of the aforesaid decision, it is apparent that a plea
\nrelating to want of sanction can be raised at an earlier stage of the
\nproceedings. Hence, the question as to whether an order of sanction
\nin terms of Section 197 of the Code is required to be obtained can be
\ndecided at any stage of the proceedings and even at this stage.\n<\/p>\n
15.\t\tAs
\nregards the second question as to whether on the facts of the present
\ncase, it would be possible to decide the question of sanction at this
\nstage, in the opinion of this Court, on the basis of the material
\nwhich has been brought on the record of this application, this Court
\nwould be in a position to decide the said question.  On behalf of the
\nrespondent no.2   complainant, it has been contended that the
\nevidence in the nature of the first information report lodged against
\nthe complainant is required to be brought on the record of the Trial
\nCourt and cannot be taken into consideration by this Court as it does
\nnot form part of the record before the Trial Court.  In this regard,
\nit may be pertinent to refer to the decision of the Supreme Court in
\nState through the
\nCBI vs. B.L. Verma and another,
\n(1997) 10 SCC 772.  Though the said decision had been rendered prior
\nto the decision in Adalat
\nPrasad case, the
\nfollowing observations would be applicable even to the facts of the
\npresent case:\n<\/p>\n
 24.\tIn
\nMatajog case the Constitution Bench held that the
\ncomplaint may not disclose all the facts to decide the question of
\napplicability of Section 197, but facts subsequently coming either on
\npolice or judicial inquiry or even in the course of prosecution
\nevidence may establish the necessity for sanction.  In B. Saha case
\nthe Court observed that instead of confining itself to the
\nallegations in the complaint the Magistrate can take into account all
\nthe materials on the record at the time when the question is raised
\nand falls for consideration.  In Pukhraj case
\nthis Court
\nobserved that whether sanction is necessary or not may depend from
\nstage to stage.  In Matajog case the Constitution Bench had further
\nobserved that the necessity for sanction may reveal itself in the
\ncourse of the progress of the case and it would be open to the
\naccused to place the material on record during the course of trial
\nfor showing what his duty was and also the acts complained of  were
\nso interrelated with his official duty so as to attract the
\nprotection afforded by Section 197 of the Code of Criminal Procedure.
\nThis being the position it would be unreasonable to hold that the
\naccused even though might have really acted in discharge of his
\nofficial duty for which the complaints have been lodged yet he will
\nhave to wait till the stage under sub-section (4) Section 246 of the
\nCode is reached or at least till he will be able to bring in relevant
\nmaterials while cross-examining the prosecution witnesses. On the
\nother hand it would be logical to hold that the matter being one
\ndealing with the jurisdiction of the court to take cognizance, the
\naccused would be entitled to produce the relevant and material
\ndocuments which can be admitted into evidence without formal proof,
\nfor the limited consideration of the court whether the necessary
\ningredients to attract Section 197 of the Code have been established
\nor not. The question of
\napplicability of Section 197 of the Code and the consequential ouster
\nof jurisdiction of the court to take cognizance without a valid
\nsanction is genetically different from the plea of the accused that
\nthe averments in the complaint do not make out an offence and as such
\nthe order of cognizance and\/or the criminal proceedings be quashed.
\nIn the aforesaid premises we are of the considered opinion that an
\naccused is not debarred from producing the relevant documentary
\nmaterials which can be legally looked into without any formal proof,
\nin support of the stand that the acts complained of were committed in
\nexercise of his jurisdiction
\nor purported jurisdiction as a public servant in discharge of his
\nofficial duty thereby requiring sanction of the appropriate
\nauthority.\n<\/p>\n
In
\nthe facts of the present case, the additional evidence that has been
\nbrought on record is in the nature of the first information report
\nregistered vide Bhuj City Police Station I-C.R. No.151 of 1992 which
\nis a matter of official record. Hence, even in absence of any further
\nproof, the same can be taken into consideration for the limited
\npurpose of examining the question regarding want of sanction. The
\nother evidence is in the nature of the judgment and order dated 11th
\nOctober, 1995 rendered by the Chief Judicial Magistrate, Bhuj-Kutch
\nin Criminal Case No.4447 of 1992 whereby the complainant and other
\naccused were acquitted of the offence registered against them vide
\nthe aforesaid first information report.  Since the documents which
\nare produced on record for the purpose of deciding the issue of
\nrequirement of sanction are part of the official record, for the
\nlimited consideration of the Court whether the necessary ingredients
\nto attract Section 197 of the Code have been established or not, the
\nsaid documents can be taken into consideration without formal proof.
\nConsidering the fact that the Trial Court has no jurisdiction to
\ndischarge the accused
\nafter issuance of process, it would be an exercise in futility to
\nrelegate the applicant to the Trial Court for the purpose of adducing
\nevidence in his defence to indicate that the offence alleged against
\nhim had been committed during the course of discharge of his official
\nduties. Since on the basis of the material on record, it is possible
\nfor this Court to decide the question, no useful purpose would be
\nserved in relegating the applicant to the Trial Court for the purpose
\nof adducing the very same evidence before the Trial Court which, in
\nany case, would not be in
\na position to discharge the applicant even if it came to the
\nconclusion that sanction under Section 197 of the Code was necessary.\n<\/p>\n
16.\t\tInsofar
\nas the question as to whether the offence alleged against the
\napplicant has been committed during the discharge of his duties as a
\npublic servant is concerned, it would be necessary to examine the
\ncontents of the complaint, the first information report registered
\nagainst the complainant and others as well as the judgment rendered
\nby the Trial Court. A perusal of the first information report
\nindicates that the offence alleged against the applicant has occurred
\nat about 17:30 hours on 15th
\nJuly, 1992, and the place of offence is near the office of the
\nCollector. The applicant herein was engaged in bandobust in
\nconnection with the Dharna programme announced by the Vishwa Hindu
\nParishad and supporters of Bhartiya Janata Party on 15th
\nJuly, 1992 from 10:00 to 16:00 hours in front of the Collector’s
\noffice. At about 17:30 hours, a procession of about 50 persons
\nshouting slogans came towards the Collector’s office. The procession
\nwas told that they had no permission to carry out the rally. That as
\nthey had formed an unlawful
\nassembly they should immediately disperse. The assembly of persons
\ndid not disperse but rushed into the police cordon. The police tried
\nto control the crowd with all restraint.  However, the persons in the
\nmob started pelting stones at the police officers and other persons
\nin charge of the bandobust.  Subsequently, with a view to bring the
\nsituation under control, a light lathi-charge was carried out and the
\ncrowd was dispersed.  From the violent mob, the police had
\napprehended the complainant and five others namely, Anilkumar,
\nDilipkumar Jayantilal Joshi, Kamlesh Bhagwanji Thakkar and Narendra
\nHaribhai Makwana.\n<\/p>\n
Pursuant to the said first information report, investigation was
\ncarried out and charge-sheet was filed against the accused. The
\naccused faced trial and upon conclusion of the trial, they were
\nacquitted vide the above referred judgment and order. From the
\naforesaid judgment and order, it is apparent that it is the case of
\nthe prosecution that the complainant and other accused, in all five
\npersons, had been apprehended on the spot when they were fleeing
\nafter the police carried out lathi-charge on the mob. The accused
\nhave been acquitted on the ground that upon perusal of the entire
\nevidence, it had come on record that a mob of 50 different persons
\nhad indulged in stone throwing and different police personnel had
\nsustained injuries. No evidence has been brought on record as regards
\nthe injuries sustained by the concerned persons. The Court was of the
\nview that there is also no evidence to indicate that it was the
\naccused who had thrown stones and further there was no evidence that
\nthe accused had formed an unlawful assembly.\n<\/p>\n
17.\t\tIn
\nthe impugned complaint, it is the case of the respondent
\nNo.2 – complainant that on 15th
\nJuly, 1992 at 17:30 hours, when he came near the Collector’s office,
\nthe applicant herein suddenly got incited and started saying  catch
\nhim . The applicant herein caught hold of the complainant and
\nbelaboured him with sticks and at that time, other persons who were
\npassing by namely Anilkumar Dalsukh Vitha, Dilip Jayantilal Joshi,
\nNarendra Haribhaii Makwana and Kamlesh  Bhagwanji Thakkar were also
\napprehended by the police and without any sufficient reasons were
\nbelaboured with sticks. It is in the context of this incident that
\nthe complaint has been lodged against the applicant.  On a conjoint
\nreading of the complaint
\nlodged against the applicant and the first information report
\nregistered against the complainant, it is apparent that both arise
\nout of the same incident. From the first information report in
\nquestion as well as the judgment rendered by the Trial Court, it is
\nevident that the police authorities were engaged in bandobust in
\nconnection with the rally that was being taken out on that day. It is
\nduring the course of the bandobust that the applicant is alleged to
\nhave used force against the complainant and others. The first
\ninformation report registered against the complainant clearly
\nindicates that it was with a view to contain the mob that the
\nlathi-charge had been resorted to. It may be that excessive force may
\nhave been issued during the course of the lathi-charge, however, that
\ncertainly would not detract from the fact that the offence alleged
\nagainst the applicant has taken place during the course of discharge
\nof his official duties.\n<\/p>\n
18.\t\tThe
\nApex Court in Raghunath
\nAnant Govilkar vs. State of Maharashtra and Others,<\/a>
\n(2008) 11 SCC 289, has laid
\ndown thus:-\n<\/p>\n
6.
\nThe protection given under Section 197 is to protect responsible
\npublic servants against the institution of possibly vexatious
\ncriminal proceedings for offences alleged to have been committed by
\nthem while they are acting or purporting to act as public servants.
\nThe policy of the legislature is to afford adequate protection to
\npublic servants to ensure that they are not prosecuted for anything
\ndone by them in the discharge of their official duties without
\nreasonable cause, and if sanction is granted, to confer on the
\nGovernment, if it chooses to exercise it, complete control of the
\nprosecution. This protection has certain limits and is available only
\nwhen the alleged act done by the public servant is reasonably
\nconnected with the discharge of his official duty and is not merely a
\ncloak for doing the objectionable
\nact. If in doing his official duty, he acted in excess of his duty,
\nbut there is a reasonable connection between the act and the
\nperformance of the official duty, the excess will not be a sufficient
\nground to deprive the public servant from the protection. The
\nquestion is not as to the nature of the offence such as whether the
\nalleged offence contained an element necessarily dependent upon the
\noffender being a public servant, but whether it was committed by a
\npublic servant acting or purporting to act as such in the discharge
\nof his official capacity. Before Section 197 can be invoked, it must
\nbe shown that the official concerned was accused of an offence
\nalleged to have been committed by him while acting or purporting to
\nact in the discharge of his official duties. It is not the duty which
\nrequires examination so much as the act, because the official act can
\nbe performed both in the discharge of the official duty as well as in
\ndereliction of it. The act must fall within the scope and range of
\nthe official duties of the public servant concerned. It is the
\nquality of the act which is important and the protection of this
\nsection is available if the act falls within the scope and range of
\nhis official duty. There cannot be any universal rule to
\n determine
\nwhether there is a reasonable connection between the act done and the
\nofficial duty, nor is it possible to lay down any such rule. One safe
\nand sure test in this regard would be to consider if the omission or
\nneglect on the part of the public servant to commit the act
\ncomplained of could
\nhave made him answerable for a charge of dereliction of his official
\nduty: if the answer to this question is in the affirmative, it may be
\nsaid that such act was committed by the public servant while acting
\nin the discharge of his official duty and there was every connection
\nwith the act complained of and the official duty of the public
\nservant. This aspect makes it clear that the concept of Section 197
\ndoes not get immediately attracted on institution of the complaint
\ncase.\n<\/p>\n
9.
\nThe section falls in the chapter dealing with conditions requisite
\nfor initiation of proceedings. That is, if the conditions mentioned
\nare not made out or are absent then no prosecution can be set in
\nmotion. For instance no prosecution can be initiated in a Court of
\nSession under Section 193, as it cannot take cognizance, as a court
\nof original jurisdiction,
\nof any offence unless the case has been committed to it by a
\nMagistrate or unless the Code expressly provides for it. And the
\njurisdiction of a Magistrate to take cognizance of any offence is
\nprovided by Section 190 of the Code, either on receipt of a
\ncomplaint, or upon a police report or upon information received from
\nany person other than a police officer, or upon his knowledge that
\nsuch offence has been committed. So far as public servants are
\nconcerned, the cognizance of any offence, by any court, is barred by
\nSection 197 of the Code unless sanction is obtained from the
\nappropriate authority, if the offence, alleged to have been
\ncommitted, was in discharge of the official duty. The section not
\nonly specifies the persons to whom the protection is afforded but it
\nalso specifies the conditions and circumstances in which it shall be
\navailable and the effect in law if the conditions are satisfied. The
\nmandatory character of the protection afforded to a public servant is
\nbrought out by the expression  no court shall take cognizance of
\nsuch offence except with the previous sanction . Use of the words
\n no  and  shall  make it abundantly clear that the bar on the
\nexercise of power by the court to take cognizance of any offence is
\nabsolute and complete. Very cognizance is barred. That is, the
\ncomplaint cannot be taken notice of. According to Black s
\nLaw Dictionary
\nthe word  cognizance  means  jurisdiction  or  the exercise
\nof jurisdiction  or  power to try and determine causes . In
\ncommon parlance it means taking notice of. A court, therefore, is
\nprecluded from entertaining a complaint or taking notice of it or
\nexercising jurisdiction if it is in respect of a public servant who
\nis accused of an offence alleged to have been committed during the
\ndischarge of his official duty.\n<\/p>\n
19.\t\tConsidering
\nthe facts of the present case as noted hereinabove, in the light of
\nthe aforesaid decision, it is apparent that the offence alleged
\nagainst the applicant has been committed in the discharge of his
\nofficial duties. At best, if the allegations made in the complaint
\nare taken to be true, it may be said that the applicant acted in
\nexcess of his duties, however, there is a reasonable connection
\nbetween the act and the performance of the official duty. Hence, the
\nexcess will not be a sufficient ground to deprive the applicant from
\nthe protection given under Section 197 of the Code. As submitted by
\nthe learned advocate for the applicant, Section 197 of the Code falls
\nin the Chapter dealing with conditions requisite for initiation of
\nproceedings. In the circumstances, if the conditions mentioned are
\nnot made out or are absent, then no prosecution can be set in motion.
\nInsofar as a complaint against a public servant is concerned, the
\ncognizance of any offence by any Court is barred by Section 197 of
\nthe Code unless sanction is obtained from the appropriate authority
\nif the offence alleged to have been committed was in discharge of his
\nofficial duty. The Court was, therefore, precluded from taking
\ncognizance of the offence and issuing process against the applicant
\nin connection with the offence which is alleged to have been
\ncommitted during the discharge of his official duty. In the
\ncircumstances, the impugned order, directing issuance of process
\nagainst the applicant being without jurisdiction cannot be sustained.\n<\/p>\n
20.\t\tThe
\nquestion of applicability of Section 197 of the Code and consequent
\nouster of jurisdiction of the Court to take cognizance without a
\nvalid sanction is generically different from the plea of the accused
\nthat the averments in the complaint do not make out an offence and as
\nsuch, the order of cognizance and the criminal proceedings be
\nquashed. Before this Court no submissions have been advanced on the
\nmerits of the complaint as to whether the same makes out an offence
\nor not, in the circumstances, this Court has not gone into the merits
\nof the complaint and as such the question of quashing the complaint
\ndoes not arise.  Even otherwise at this stage after a period of more
\nthan a decade since the lodging of the complaint, the prayer for
\nquashing the complaint on merits cannot be entertained. However,
\ninsofar as taking cognizance of the offence and issuing process
\nthereon without prior sanction of the Government under Section 197 of
\nthe Code is concerned, the same stands vitiated.\n<\/p>\n
21.\t\t\tFor
\nthe foregoing reasons, the application partly succeeds and is
\naccordingly allowed to the following extent. The cognizance taken by
\nthe learned Chief Judicial Magistrate, Bhuj-Kutch on the complaint
\nlodged by the respondent no.2 against the applicant is held to be
\nvitiated on the ground of non-fulfillment of the requirements of
\nSection 197 of the Code. Consequently, the order dated 16th
\nJuly, 1992 passed by the learned Chief Judicial Magistrate in
\nCriminal Case No.2107 of 1992
\ndirecting issuance of process against the applicant for the offence
\nunder Sections 323 and 506(1) of I.P.C. is hereby quashed.  Rule is
\nmade absolute.\n<\/p>\n
22.\t\t\tIt
\nis clarified that this Court has not expressed any opinion on the
\nmerits of the complaint. Any observation made in this order is only
\nfor the limited purpose of deciding the controversy in issue and
\nshall in no manner prejudice the case of either of the parties.\n<\/p>\n
\t\t\t\t\t\t\t(
\nHarsha Devani, J. )<\/p>\n
hki<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Anil vs The on 20 January, 2010 Author: H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print CR.MA\/798\/2008 23\/ 24 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 798 of 2008 For Approval and Signature: HONOURABLE MS. JUSTICE H.N.DEVANI ====================================== 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-135641","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAnil vs The on 20 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anil-vs-the-on-20-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anil vs The on 20 January, 2010 - 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