NANDU ZAMBAULIKER Vs. SHRIKANT NAIK

JUDGEMENT

(1.) BY this application under Section 482, Criminal Procedure Code, the applicant has challenged the Order dated 21st March 1998 passed by the Sessions Judge, South Goa, Margao, in Criminal Revision Application No. 41 of 1997 setting aside the Order dated 8th July 1997 passed by the Judicial Magistrate, First Class, Margao, in Criminal Case No. 134/p/87/i. The learned Magistrate rejected the application of respondent No. 1 for dismissing the complaint on the ground of want of sanction under Section 197 of the Criminal Procedure Code. In revision, the learned Sessions Judge set aside that Order holding that sanction under Section 197 of the Criminal Procedure Code was necessary for prosecuting respondent No. 1. The relevant facts necessary for the decision of this application may be stated in brief as under :

(2.) THE applicant, who is a press photographer, is the original complainant whereas the respondent No. 1, who is a Head Constable, is the original accused in Criminal Case No. 134/p/87/i. The said case was initiated against respondent No. 1 on the basis of a private complaint dated 21st March 1987 filed by the applicant. It was alleged by the applicant that on 20th December 1986 some people had gathered near Gandhi Market at Margao to make an agitation. A police party including respondent No. 1 was posted at Gandhi Market for the purpose of bandobust. According to the applicant, the agitation was going on peacefully and that, being a press photographer attached to a local daily, he had gone there to take the photographs of the agitators. The applicant further alleged in his complaint that some anti-social elements tried to disrupt the agitation which was going on peacefully and at that time he tried to snap some shots by means of the camera, which he was carrying with him. He alleged that at that time respondent No. 1 rushed towards him and snatched the camera. Thereafter, respondent No. 1 pulled out the film from it and forcibly threw the camera on the ground and trampled on it. According to the applicant, his camera was of the value of more than Rs. 1800/- and respondent No. 1 was responsible for causing destruction thereof. The applicant lodged a complaint with the Margao Police Station but the Police did not take anay action. Hence, the applicant filed his private complaint in the Court of Judicial Magistrate, First Class, Margao.

(3.) THE learned Magistrate recorded the statement of the applicant under Section 200 of the Criminal Procedure Code and also conducted an inquiry under Section 202 of the Criminal Procedure Code during which he recorded statements of two witnesses of the applicant, namely, Narendra Shirodkar and Chanda Karim. After finding that there were sufficient grounds to proceed against respondent No. 1, the learned Magistrate issued process against him. Thereafter, on 20th June 1996 respondent No. 1 appeared before the Court and submitted an application stating that he was a public servant and the applicant had not obtained requisite sanction to prosecute him. He, therefore, prayed for dismissal of the complaint. The learned Magistrate, however, held that the act complained of had no correlation to the official duties of respondent No. 1 and that the said act could not be considered as part of or in excess of the official duty of the respondent No. 1. He, therefore, held that no sanction under Section 197 of the Criminal Procedure Code was necessary to prosecute respondent No. 1. In revision, the learned Sessions Judge took a different view and held that respondent No. 1 was certainly acting or at least purporting to act in the discharge of his official duty. He further held that the alleged act of respondent No. 1 was in excess of his duty and the said excess was committed by him while he was exercising his duty of dispersing the persons who were throwing stones. In this view of the matter, the learned Sessions Judge held that respondent No. 1 could not be prosecuted for want of sanction under Section 197 (3) of the Criminal Procedure-Code. He, therefore, discharged respondent No. 1. It is this order which is the subject-matter of this application.