LALARAM KHATTAR Vs. HIMANSHU SINGH

JUDGEMENT

(1.) THE petitioner, by this revision, has challenged the order dated 16.4.1999 of the Additional Sessions Judge, Umariya in Cr. Revision No. 91/98 & 122/98, by which the cognizance taken by the Magistrate on a complaint having been made by the petitioner against the respondents was quashed on the ground that the provisions of section 197 of the CrPC were attracted and since sanction had not been obtained for the prosecution of the respondents, the learned Magistrate could not have taken cognizance or issued any process against them.

(2.) WHILE not disputing that the respondents are public servants by virtue of section 352 of the Municipalities Act, learned counsel for the petitioner has pointed out that apart from respondent No. 1 Chief Municipal Officer, none from amongst the accused was holding a post which needed sanction of the Government for his removal from his office. Learned counsel submits that provisions of section 197 are attracted only where the person was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, 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. Learned counsel submits that apart from respondent No. 1, other persons were not holding any post or office which required the sanction of the Government for removal from the post or an order of the Government for such removal. This position is not disputed by the learned counsel for the respondents.

(3.) LEARNED counsel for the applicant submits by reference to the decision of the Supreme Court in Shambhoo Nath Mishra v. State of U.P. (AIR 1997 SC 2102) that the cognizance was not barred even in the case of respondent No. 1 Himanshu Singh as the act complained of was not in discharge of any official duty. It has been observed by the learned Additional Sessions Judge that the respondent No. 1 removed, according to complainant, the encroachment under the provisions of the Act. Under these circumstances, the act complained of was not separable from the discharge of the official duty of the respondents. Under these circumstances, the provisions of section 197 were attracted in the case of respondent No. 1 and the applicant having admittedly not obtained the sanction as required therein, cognizance could not have been taken against him.