CHAIRPERSON Vs. STATE OF KERALA

JUDGEMENT

(1.) In this petition under Section 482 of the Code of Criminal Procedure, the petitioners, seek an order to quash Annexure 1 order in CMP 6196 of 2011 whereby the Judicial Magistrate of the First Class I, Hosdurg, took cognizance for offences under Sections 268, 269, 270 and 278 of the Indian Penal Code against the petitioners who are the Chairperson, Secretary, Health Supervisor and Standing Committee Chairman for Health of Kanhangad Municipality. The second respondent is the complainant. After taking cognizance the case was numbered as CC 1121 of 2011. The plea of the petitioners is that to prosecute the petitioners for any offence alleged to have been committed by them while acting or purporting to act in the discharge of official duty, sanction under Section 548 of the Kerala Municipality Act and under Section 197 of the Code of Criminal Procedure are to be obtained before launching prosecution and since no sanction was obtained, Annexure 1 order taking cognizance is not legally sustainable.

(2.) For a better appreciation of the case, a reading of Section 548 of the Kerala Municipality Act and Section 197 of the Code of Criminal Procedure would be relevant:

(3.) Petitioners 1 and 4 may not come under the definition of public servant as defined under Section 21 of the Indian Penal Code [See the decision in Ramesh Balakrishna Kulkarni v. State of Maharashtra, 1985 AIR(SC) 1655 and State of Tamil Nadu v. T. Thula Singham, 1995 AIR(SC) 1314]. But petitioners 2 and 3 would come within the definition of the public servant as defined under 12th category of Section 21 of the Indian Penal Code. Therefore, to prosecute them sanction under Section 197 of the Code of Criminal Procedure is required in the event the offence alleged to have been committed by them while acting or purporting to act in discharge of the official duties. Therefore, I find that to prosecute them sanction under Section 197 of the Code of Criminal Procedure is an absolute requirement.