Z U SIDDIQUI Vs. BAL KISHAN KAPOOR

JUDGEMENT

(1.) This petition under Section 482, Code of Criminal Procedure (in short 'Cr.P.C.') challenges the order dated 11.8.2003 whereby the learned Additional Sessions Judge (in short 'ASJ') set aside the order dated 19.1.2001 whereby a complaint against the petitioner was dismissed on account of want of sanction under Section 197, Cr.P.C. The learned ASJ while setting aside the order of Metropolitan Magistrate held that the question whether the sanction was required be left open and be decided after the conclusion of trial.

(2.) The facts leading to the present petition under Section 482, Cr.P.C. can be narrated briefly as under: The respondent, Bal Kishan Kapoor, is the father of Rekha who died of burn injuries on 12.6.1993. On 13.6.1993, the respondent approached police station Hauz Khas for lodging an FIR. On 14.6.1993, the respondent moved an application for recording his statement and registering the FIR. The statement of the respondent was recorded by the petitioner being the concerned SDM. The respondent incriminated the father-in-law of the deceased along with some others. The FIR thereafter was registered on the basis of this statement. The respondent in his complaint under Section 218, IPC and under Section 466, IPC read with Section 201 of IPC and Sections 498A/304B, IPC alleged that in the FIR the name of the fatrher-in-law of the deceased, whom he had incriminated in his statement, was not there and that the name of the father-in-law had been deliberately omitted in the FIR at the instance of the petitioner. He alleged in the complaint that the father-in-law and the petitioner had colluded with each other so that the father-in-law could be saved from the prosecution for the offences under Sections 498-A/304-B, IPC. The respondent demanded prosecution of the petitioner under Sections 201, 218 and 466, IPC.

(3.) The petitioner raised the question of bar under Section 197, Cr.P.C. on the plea that the act constituting the offence was done by him in discharge of his official duties and, therefore, he could not have been prosecuted without the sanction from the Government. This plea was upheld by the Metropolitan Magistrate by an order dated 19.1.2001. On revision the order was set aside, as mentioned earlier, by the learned ASJ. It is submitted herein that the question of sanction under Section 197, Cr.P.C. cannot be kept in abeyance and that the question has to be decided at the earliest because the bar does not relate to conviction but relates to the very cognizance of the offence. Section 197 is extracted below for ready reference. Section 197 reads as under: "197. Prosecution of Judges and public servants. - (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -