DILIP PATKI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) PETITIONER is a Police Officer and at the relevant time was working as Police Sub-Inspector attached to Dadar Police Station. Respondent no.2 is a medical practitioner. There were disputes between respondent no.2 and his mother for possession of certain premises. A suit was filed by the mother against respondent No. 2 and an order of injunction was issued against respondent No. 2 at the instance of mother restraining him from entering the premises. It is also an admitted position that the order of injunction was served on respondent No. 2/complainant on12.1.193. Respondent No. 2 claims that after the order of injunction was served on him, on the very next day the mother gave him a writing to the effect that she was withdrawing all the allegations against him and also the injunction. It is the case of the complainant that after service of the injunction order, on14.11.1993 the petitioner (accused) came to the premises of the mother, where complainant (respondent no.2) was present. It is the assertion in the complaint that he was wearing a banian and half pant. He was pushed and forcibly taken to the Police Station where he was insulted and assaulted. The accused wanted him to sign some notings which was a warning to the effect that he will not assault his mother. He however refused to sign. Thereafter he was wrongfully detained and assaulted by the accused by kicks. He had sustained injury for which he took treatment.

(2.) ON these allegations evidence before charge was recorded and charge was framed. The charge was under section325 and 323 IPC for having abused and assaulted the complainant/respondent No. 2 after taking him in custody without any reason and assaulting him and thereby causing grievous hurt to the complainant. The petitioner has challenged the prosecution consequent upon the framing of charge on the ground that there is no sanction obtained for prosecution.

(3.) IT is on the background of the aforesaid facts that one has to consider the allegations in the complaint. The petitioner was bound to go to the premises and give protection to the mother of respondent no.2. In such circumstances, if the incident as alleged in the complaint has taken place, then it is a clear case in which sanction to prosecute the petitioner is required. Section197 clearly says that no Court shall take cognizance of the offence in the absence of valid sanction. The prohibition is from taking cognizance of the offence on the basis of the allegation contained in the complaint. The learned Counsel for the petitioner has relied on judgment of the Supreme Court in support of his contention that in the absence of sanction, prosecution of the petitioner is bad and ought to be quashed. The learned counsel for petitioner relied on the judgments reported in 2001 Cri. L. J. page 2897; (1987) 1 S. C. C. 476; (2000) 7 S. C. C. 15; (1985) 5 S. C. C. 690. On behalf of respondent No. 2 reliance was placed on a judgment of the supreme Court reported in A. I. R. 1956 S. C. page 44 (Matajog Dobey vs. H. C. Bhari ). The law laid down by the Apex court is well clear. Petitioner in the present case was admittedly acting in discharge of official duty, in any case in purported discharge of his duty as a Police Officer and if while acting in such discharge or purported discharge of duty, it is alleged that he has committed any offence then it is a case for sanction and in the absence of sanction, the present case can not be sustainable. Since the Court cannot take cognizance of the offence in the absence of sanction, it would not be correct to say that the trial can proceed and at the final stage, the court should decide whether sanction was necessary. The argument of the learned Counsel for respondent no.2 that the issue of sanction can be decided at the final hearing of the case is not tenable and is required to be rejected. The petition must therefore succeed.