JAVED AKHTAR Vs. STATE

JUDGEMENT

(1.) BY this revisional application the petitioner challenged the order dated 14th May, 1991 passed by the learned Judicial Magistrate, 7th Court, Alipore, 24-Parganas (South), in C. Case No. 1850 of 1990 relating to T. R. No. 176/90 whereby the learned Magistrate discharged the accused persons under Section 245 (2) of the Code of Criminal Procedure on the ground of absence of sanction as adumbrated in Section 197 of the Code of Criminal Procedure.

(2.) THE fact of this case, in a short compass, is that on the 17th September, 1990 the accused persons went to a spot on which a boundatory wall stood in between plot nos. 380 and 356, although the boundary wall stood on the plot no. 353. The accused persons demolished that boundary wall and stole some properties lying on the plot and as such a complaint has been made for the offence under Sections 379/440/447/120b of the Indian Penal Code. During the time of framing the charge, a contention was raised on behalf of the accused persons before the trial court that in the absence of sanction as contemplated under Section 197 of the Criminal Procedure Code, the Court is not competent to take cognizance as the accused persons are public servants discharging their duties in their official capacity as public servants. The learned Magistrate on consideration of the submissions made on behalf of the accused persons discharged the accused persons as aforesaid under Section 245 (2) of the Criminal Procedure Code for want of sanction holding inter alia that the accused persons discharged their duties in their official capacity.

(3.) MR. Ainul Haque, learned Advocate for the petitioner, contended that the accused persons were directed to go to a particular plot but instead they visited another plot and thereby they have transgressed their jurisdiction in discharging their duties as public servants and as such the work that had been done by them does not come within the meaning of official work discharged in official capacity and as such no sanction under Section 197 of the Criminal Procedure Code is required. His next stream of contention was that even if the accused persons had done something as public servants in discharge of their officials duty but in doing so they transgressed their jurisdiction and had done something in excess which cannot be done and cannot be termed to have been done as public servants in discharge of their duties in their official capacity and as such no sanction is required under Section 197 of the Code of Criminal Procedure.