B. K. PARCHURE Vs. STATE

JUDGEMENT

(1.) This petition under Sec. 482 of Cr.P.C. seeks quashment of the order dtd. 28/7/2014 passed by the Court of learned MM-06(C)/Delhi in CC No. 65/1C, whereby, the application filed by the present petitioner for his discharge on the ground of not obtaining sanction under Sec. 197 of Cr.P.C. has been rejected.

(2.) The brief facts of the case are that respondent No.2/complainant filed the complaint against the petitioner (the then Tehsildar) and three other government officers under Sec. 200 of Cr.P.C. for the offence punishable under Ss. 218/466/120-B/34 of IPC and Sec. 13(i)(c) and 13(d)(ii) of the PC Act, 1988. According to respondent No.2/complainant (hereinafter referred as 'complainant'), the present petitioner and other accused persons have prepared an incorrect map intentionally and dishonestly only to cause damage to the property of the complainant with respect to Khasra No. 315. On the basis of the fabricated documents, i.e., an incorrect map, the property of the petitioner was described to be under encroachment. The respondent No. 2/complainant alongwith his complaint also filed an application under Sec. 156(3) of Cr.P.C. In pursuance to the directions issued by the learned MM on 13/12/2005, Action Taken Report was submitted by the concerned Police Station on 21/12/2005 stating therein that no forgery or change in the original documents was found, therefore, no cognizable offence was made out. On 1/6/2006, the learned MM noted that on the basis of the police record, facts and circumstances of the case, it was not appropriate to direct the registration of the FIR under Sec. 156(3) of Cr.P.C. However, the Court directed the complainant to prove his complaint while leading evidence. Respondent No. 2/complainant challenged the said order before the Revisional Court in Criminal Revision No. 13/2006 and the learned Additional Sessions Judge vide order dtd. 16/10/2006 set aside the said order and directed the trial court to decide the application under Sec. 156(3) of Cr.P.C. afresh after hearing the complainant. On 1/9/2007, the learned Metropolitan Magistrate after hearing respondent No. 2/complainant passed an order rejecting the application under Sec. 156(3) of Cr.P.C. The learned Metropolitan Magistrate, however, took cognizance of the offence and fixed the matter for pre-summoning the complainant's evidence. Thereafter, the evidence of seven witnesses produced by the complainant including himself was recorded as pre-charge evidence. On 15/3/2010, the learned ACMM directed for the summoning of the petitioner for the offence punishable under Ss. 218/466 of IPC. However, he did not find any material to summon the other accused made in the complaint.

(3.) The petitioner had approached this Court against the order of summoning in CRL.M.C. 1774/2010. This Court vide order dtd. 10/7/2012, allowed the petitioner to withdraw his petition with liberty to raise the point of sanction under Sec. 197 of Cr.P.C. before the learned trial court and to invite its decision on the said issue at the first instance. The petitioner, thereafter, filed an application for his discharge. The learned MM vide impugned order dtd. 28/7/2014 rejected the application, so submitted by the petitioner on the ground that the sanction under Sec. 197 of Cr.P.C. is only required when the offence is purported to have been done by the accused while acting or purporting to act in the discharge of his official duties. According to the impugned order, whether the petitioner was acting under the due discharge of official duties or not is a matter of trial which cannot be decided at the stage of issuing summon, as the same requires leading of evidence from both the sides.