STATE Vs. ULHAS KADAM

JUDGEMENT

(1.) IN this appeal, the appellant/State has challenged the judgment and order dated 29/06/2010 passed by the learned Sessions Judge, Panaji thereby setting aside the order dated 9/12/2009 passed by the Judicial Magistrate First Class, Panaji, dismissing the application for an acquittal under Section 258 of the Criminal Procedure Code filed by the respondent.

(2.) IT is the case of the prosecution that a complaint was lodged by the complainant/victim for sexual assault under Section 354 of the Indian Penal Code against her superior. The alleged act of sexual harassment has taken place at the work place. Pursuant to the complaint offence was registered against the respondent/accused. Plea was recorded, he pleaded not guilty, trial commenced and the complainant/victim tendered evidence and also was cross -examined by the accused. After completion of her evidence, an application under Section 258 of the Criminal Procedure Code praying stoppage of proceedings was moved on 11/11/2009 by the respondent. The reason given in the said application was that the alleged act has been committed by the accused while acting or purporting to act in the discharge of his official duty as Registrar of Administrative Tribunal and of Cooperative Tribunal. Therefore, previous sanction under section 197 of the Criminal Procedure Code was necessary for the prosecution and therefore prayer was made to stop the proceedings under Section 258 of the Criminal Procedure Code as no previous sanction under Section 197 has been obtained to prosecute the accused who is a public servant, in the government employment. The said application was rejected by the learned Magistrate. The learned Magistrate held that the act of the accused does not fall within the ambit and scope of expression 'Official Duty'. The said order was challenged by the appellant/accused before the learned Sessions Court in the revision. The learned Sessions Judge allowed the revision petition, set aside the order passed by the learned Magistrate and passed the order that without prejudice to the rights of the respondent/State to seek prior sanction for the prosecution of the accused if deemed fit in the circumstances of the case. Being aggrieved by the said order, the State has filed this appeal.

(3.) THE learned Prosecutor has submitted that the order passed by the learned Magistrate was correct and the view taken by the learned Judge of the Sessions Court is erroneous and her order is to be set aside. She submitted that it is a case of sexual assault under Section 354 of the Indian Penal Code and the alleged act done by the accused/respondent has no concern with the discharge of his official duty and therefore no sanction under Section 197 of the Criminal Procedure Code is required to prosecute the respondent/accused.