SHERKHAN HUSSEINKHAN PATHAN Vs. DAMODHAR LAXMANAO PANDHAPURKAR

JUDGEMENT

(1.) Petitioner in this case is the original complainant in Criminal Case No. 420 of 1980 pending before the Judicial Magistrate, First Class, Ahmedpur. The petitioner charged respondent No. 1 along with eight others with commission of offences under sections 109, 120-B, 426 465, 466, 467 and 218 read with section 34 of the Indian Penal Code on the allegations of having prepared a false record of panchnama and service of notice and also having prepared a short judgment recording that inspection was taken and thus a false entry was recorded in the revenue record. Respondent No. 1 is the Tahsildar and other persons seem to be interested in obtaining those entries. It was alleged in the complaint that respondent No. 1 along with the others prepared false record of service of notice and inspection on 9-7-1980. The alleged record showed that Survey No 84 which belonged to the petitioner, was wrongly mentioned to have been in occupation of respondents Nos. 2 and 3 to this petition. Charging the accused with the commission of the said offences, the petitioner filed the complaint before the learned Magistrate on 19-7-1980. The learned Magistrate issued process against all the accused by his order dated 19-7-1980.

(2.) Out of several accused, respondent No. 1, who was original accused No. 1, preferred a revision before the learned Additional Sessions Judge at Latur, being aggrieved by the order of issue of process. Respon- dent No. 1 contended that he being a public servant, no complaint can be filed against him unless a sanction under section 197 (2) of the Code of Criminal Procedure is obtained. The revisional Court accepted this con- tention of respondent No. 1, allowed the revision and to the extent of respondent No. 1, the order of issue of process was set aside. This order was passed by the learned Additional Sessions Judge on 21-9-1981 in Criminal Revision Application No. 84 of 1980.

(3.) Being aggrieved by this revisional order, the original complainant- petitioner has come before this Court. The learned Advocate for the petitioner contended before me that preparation of false record is beyond the scope of discharge of duties of a public servant and this act itself being illegal, no sanction as required under section 197, Code of Criminal Procedure, should be insisted upon. He also contended that the acts alleged against respondent No. 1 are wholly illegal as it cannot be said that the public servant has any right to prepare any such false record either of inspection or of service of notice and, therefore, no sanction is necessary under section 197. He, therefore, contended that the learned Additional Sessions Judge was in error in holding that the prosecution against respondent No. 1 was invalid because of want of sanction under section 197, Code of Criminal Procedure.