DEVU BENAULCKAR Vs. NENINO RODRIGUES

JUDGEMENT

(1.) THIS is an application under Section 482 of Cr. P. C. challenging the order dated 7th October, 1993 passed by the Judicial Magistrate F. C. , Panaji in Private Criminal Case No. 165/90/c under which the application made by the present petitioner to have the criminal case dropped for want of sanction under Section 197 (2) and (3) of Cr. P. C. was rejected by the learned Magistrate.

(2.) THE respondent No. 1 Menino Rodrigues had lodged the aforesaid private complaint. The contention of the respondent No. 1 in his complaint was that on 9. 3. 1990 at about 7 p. m. when he was on duty as a Linesman with the Electricity Department of Government of Goa, he had learnt that one Joao Xavier was attacked and his scooter was burnt by some unknown persons. The respondent No. 1 alleged further that he himself was in inimical terms with Joao Xavier and therefore he had implicated respondent No. 1 in the aforesaid incident. The result was, it was alleged, when the complainant had joined his duty at about 8. 30 a. m. on 10. 3. 1990 the wife of the said Joao Xavier came there along with a policeman and took him near the house of the said Joao Xavier. At that place, it is alleged, the present petitioner assaulted him with fist blows and he was lifted and thrown on the ground and was given kicks. The protest made by the present respondent No. 1 were not heeded to by the present petitioner, according to the version given in the complaint lodged by the present respondent No. 1 it is further alleged that thereafter the respondent No. 1 was carried by the petitioner (police Office) to Goa Velha Outpost and he was arrested there. Ultimately, the brother of present respondent NO. 1 is alleged to have filed an application for bail in the Court of J. M. F. C. , Panaji and was finally released at about 8. 30 p. m. on that day on bail. The averment was that under such circumstances, the present petitioner had committed offences punishable under Sections 322 and 354 I. P. C.

(3.) THE learned Magistrate had issued process against the present petitioner and had issued summons to him. The petitioner had then moved the learned Magistrate by an application dated 11. 1. 1993 with a request to drop the proceedings inasmuch as the complaint was lodged without appropriate sanction of the Government as required by section 197 (2) (3) of Cr. P. C. The learned Magistrate rejected the application on the ground that it was not part of the duty of the present petitioner to give sanction of the Government for the aforesaid prosecution. The learned Magistrate referred in his impugned order to four rulings which were cited before him, but he did not discuss anyone of them to indicate how anyone of them was distinguishable from the facts of the present case or how the same was applicable to the facts of the present case.