K L VERMA Vs. STATE

JUDGEMENT

(1.) . By order dated 4th October, 1996, the Chief Metropolitan Magistrate taking cognizance of the offence under Sections 120 B/195/469/471 Indian Penal Code issued non-bailable warrants against S/Shri P.V.Narasimha Rao, K.K.Tewari, K.L.Verma and Larry J.Kolb. Being aggrieved by this order, the petitioner has filed this petition for setting aside the same alleging it to be in violation of the procedure established by law under Section 197 of the Code of Criminal Procedure (in short referred to as "the Code"-).

(2.) . The petitioner at the time of commission of the alleged offence was working as the Director in the Directorate of Enforcement and it is alleged against him that he and the other accused persons had entered into a criminal conspiracy with the object of fabricating certain false records/evidence intending to have S/Shri V.P.Singh and/or Ajeya Singh convicted under the Foreign Exchange Regulation Act and/or Prevention of Corruption Act and to harm their reputation. The challenge to this order of the Chief Metropolitan Magistrate by the petitioner is on the ground that he being a public servant at the time of commission of the alleged offence, no cognizance could be taken against him without any authority of law and sanction of the Government being a civil servant and it was in a complete disregard of the provisions of Section 197 of the Code. Section 197 of the Code reads as under : -

(3.) . In order to apply the provisions of Section 197 of the Code, two conditions must be fulfilled; (i) that the offence mentioned therein must be committed by a public servant and (ii) that the public servant employed in connection with the affairs of the Union or State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. If above two conditions are satisfied, then the further inquiry would be whether the alleged offences have been committed by the public servant while acting or purporting to act in discharge of his official duties. If this requirement is also satisfied, then no court can take cognizance of such offences except with the previous sanction. The object of the Section is to provide guard against vexatious proceedings against Judges, Magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. In the present case, the first two conditions are fulfilled and the only question, therefore, raised before me is that even assuming that the petitioner has committed the offences cognizance of which has been taken by the Chief Metropolitan Magistrate, the same were committed by him while acting or purporting to act in the discharge of his official duties and consequently, according to the petitioner, no Court shall take cognizance of such offences except with the previous sanction and admittedly sanction having not been obtained the proceedings were required to be dropped as against him. To appreciate the contention of the petitioner, let me refer, in short, to the facts of this case.