BECHARBHAI RANCHHODBHAI CHAUDHARY Vs. RAKESHBHAI SHARMA

JUDGEMENT

(1.) The present criminal application has been filed by the original complainant Becharbhai Ranchhodbhai Chaudhary. He has approached this court on being aggrieved by the order passed by the learned Sessions Judge, Gandhinagar in Criminal Revision Application No. 111 of 2008 dated 20.12.2008. By the aforesaid order, the learned Sessions Judge, Gandhinagar allowed the revision filed by the respondents no. 1 and 2. The revision applicants before the Sessions Court had challenged the order of the Fourth Additional Senior Civil Judge and Judicial Magistrate First Class, Gandhinagar dated 06.09.2008 by which the learned magistrate had dismissed the application of the respondents no. 1 and 2 by which they had prayed for being discharged for the offence on the ground that the complainant had not obtained sanction under section 197 of the Criminal Procedure Code. By the order under challenge before this court, the learned Sessions Judge reversed the order of the Judicial Magistrate, First class and accepted the applications of the respondents no. 1 and 2 by allowing their applications and discharged them from the offences, holding that the respondent nos. 1 and 2 had acted in discharge of their public duty and since the complainant had not obtained sanction under section 197 of the Criminal Procedure Code, the complaint would not stand.

(2.) Facts which lead to the filing of the present application are as under:

(3.) Learned advocate Mr. A.M Parekh appearing for the original complainant has challenged this order and contended that it was not open for the learned Sessions Judge to reverse the order of the learned Judicial Magistrate, First Class. According to Mr. Parekh, the learned Judicial Magistrate, First Class, Gandhinagar had rightly held that whether the act alleged to have been carried out by respondent no. 1 in allegedly assaulting the complainant and thus being guilty of the offences under sections 323, 504, 506(2) and 114 of Indian Penal Code was a subject matter which can be decided only by leading evidence and therefore the Judicial Magistrate was right in rejecting their application for discharge. The learned Judicial Magistrate, in the submission of learned advocate Mr. Parekh, was right in holding that sanction under section 197 was a question of fact which could be decided at the trial which can be at any stage and it was not open for the learned Sessions Judge to reverse the order and hold that sanction was pre-requisite without evidence being led. On the basis of the complaint so lodged by the applicant, Mr. A.M. Parekh, learned advocate for the applicant relied on a decision of this court rendered in Special Criminal Application No. 966 of 2012 dated 30.04.2015. Mr. Parekh has particularly relied on para 31 of the judgement to contend that whether an act of the accused falls within the ambit of "in discharge of official duty" or not is an issue which could be considered best only after the necessary evidence is led by the defence. According to Mr. Parekh therefore the view of the learned Sessions Judge is clearly erroneous and therefore needs to be reversed.