CHAMPATLAL BAIJNATH PATEL Vs. VRINDAWAN MISHRA

JUDGEMENT

(1.) THE allegation of the applicant, who filed a private complaint before the Judicial Magistrate of First Class, Sarangarh is that the first non-applicant, who is a Fisheries Extension Officer and who was appointed by the Collector as the Asstt. Returning Officer for conducting elections of the Sarpanch of Village Mohadhola, has abetted the filing of forged nomination paper, and in spite of filing of affidavits by the applicant and his proposer, has failed to inquire into the matter.

(2.) WHEN the case was to be taken cognizance of by the trial Court, the first non-applicant filed an application stating that the Court cannot take cognizance of the offence without sanction, as required under Section 197, Criminal Procedure Code as Fisheries Extension Officer is removable from his office only by the State Government. The trial Court rejected his objection by its order dated 26-11-1990. On revision, the learned Sessions Judge allowed the objection by his order dated 10-4-1992. Challenging the correctness of that order, the complainant filed this revision.

(3.) AS submitted by the learned Counsel for the applicant, the nomination of the first non-applicant as Assistant Returning Officer for the Gram Panchayat election is by the Collector, but not by the State Government. The exemption claimed by the first non-applicant under Section 197 (1), Criminal Procedure Code will be applicable only if he is alleged to have committed an offence while acting or purporting to act in the discharge of his official duty. I agree with the submission made by the learned counsel for the applicant that the act alleged against the first non-applicant was not committed by him. While acting or purporting to act in the discharge of his official duty as Fisheries Extension Officer, which office is removable by the State Government. The alleged act was done by him in his capacity as Assistant Returning Officer, but not in the capacity of Fisheries Extension Officer.