A D PARTHASARATHY Vs. J S KHURDUKAR

JUDGEMENT

(1.) This revision is directed against the order of the iearned Chief City Magistrate- cum Additional Session J udge, Hyderabad in Crl K.P.No. 54/73 on the file of his Court The petitioner is the complainant in C.C.No. 1936 of 1972 on the file of the 2nd City Magistrate, Secunderabad.

(2.) The facts of the case are : The petitioner was convicted and sentenced to Imprisonment in a criminal case by the Special Judge, Secunderabad. In pursuance to the order of conviction and the sentence, he was kept in the District jail, Musheerabad, of which the list respondent is the Superintendent. He filed W.P. 1375/70 before the High Court praying for the issue of writ of Habeas Corpus. The writ was heard by the High Court and was allowed at 11 a m. on 24-4-1970. The High Court directed that the petitioner should be set at liberty forthwith. The Deputy Registrar of the High Court sent advance order to the District Jail, Mushirabad. The Jailor received the order and acknowledged the receipt at 7-15 p.m. on 24-4-1970. The petitioner was not however released Immediately. He was was released only at 8-30 p.m. on 25-4-1970. On a petition filed by the petitioner under Contempt Case No. 14/70, the High Court convicted the 1st and 2nd respondents and sentenced them each to pay a fine of Rs. 50/- for having disobeyed the order of the High Court in W.P.No. 137S/70. The petitioner filed a complaint against the respondents I to 3 for offences punishable under sections 342 and 345 read with 109 I.P.C. The 1st respondent is the Superintendent of the District Jail, Musheerabad. The 2nd and 3rd respondents are the Jailor and Deptuy jailor respectively of the District Jail, Musheerabad. It hat been alleged by the complalnant-revision petitioner that in spite of the orders of the High Court in W.P, 1375/70 d/24-4-70 directing relsase of the petitioner forthwith, the respondents failed to release the petitioner until 8-30 p.m. on 25-4-70 and that therefore they are guilty of offences punishable under Sections 342 and 345 I.P.C. The 1st respondent filed a petition stating that he is a Gazetted officer, that he cannot be removed except by the State Government and that he cannot be pro-secured without the necessary sanction under section 197 Cr.P.C. The learned City Magistrate upheld the objections of the 1st respondent and discharged him with a direction that the petitioner may file a fresh complaint after obtaining the necessary sanction so far as the 1st respondent is concerned. As against this. order of the City Magistrate, the petitioner preferred Crl. R. P. 54/73 before the Chief City Magistrate - cum Additional Sessions Judge contending that the petitioner's complaint against the 1st respondent does not require any sancclon under section 197 Crl.P.C. The learned Chief City Magistrate agreed with the City Magistrate and dismissed the petitioner's revision petition holding that the 1st respondent cannot be prosecuted under the circumstances of the case without a sanction from the Government under section 197 Cr.P.C.

(3.) Sri T. V. Sarma, the learned counsel for the revision petitioner strenuously contends thatsection 197 Cr.P.C. applies only where a public servant is accused of any offence alleged to have been committed by him while "acting or purporting to act in the discharge of his official duty" and not when the public servant is accused of any offence alleged to have been committed by him white ommitting or failing to discharge his official duty. It is further contended that section 197 Cr.P.C. does not contemplate a sanction in respect of the action of a public servant which is not in the discharge of his duty but which is in clear violation of his duty.