BANCHHANIDHI MISHRA Vs. GHASIEN BANCHHOR

JUDGEMENT

(1.) The petitioner challenges legality of the order passed by the learned Judicial Magistrate, first class, Kantabanji (in short, 'JMFC') in ICC Case No. 36 of 1992. On the basis of complaint filed by opposite party action was initiated. The matter was posted to 18 -2 -1993. Petitioner filed an application on 17.2.1993 to consider whether the proceeding is maintainable. The learned JMFC came to hold that till process is issued, accused has no role to play. He, therefore, refused to take note of the motion made by the petitioner, and took cognizance of offence punishable under Section. 294 of the Indian Penal Code, 1860 (in short 'IPC') while refusing to do so in respect of accusations under Section. 500, IPC. Peculiarly immediately after taking cognizance, he proceeded to decide necessity of sanction in terms of Section 197, Code of Criminal Procedure, 1973 (in short' 'CrPC'). He elaborately dealt with that aspect and held that Section. 197, CrPC had no role to play. Accordingly direction was issued for appearance of the petitioner.

(2.) ACCORDING to Mr. H. S. Misra, learned counsel for petitioner the course adopted by the learned JMFC is rather unusual. After having concluded that till process is issued, the accused has no role to play, he took cognizance and then went on to deal with the petitioner's contention about applicability of Section 197, CrPC, and after elaborately dealing with the matter directed issue of process. The petitioner's further grievance is that he was not granted adequate opportunity to show absence of ingredients necessary to constitute an offence punishable under Section 294. IPC, there is substance in the contention, because the petitioner's motion was kept out of consideration initially on the ground that he cannot be heard before process is issued. Learned JMFC has dealt with applicability of Section 197. CrPC, and thereafter has directed issue of process. The question whether Section 197, CrPC has application is a matter which can be considered after the accused appears and it is always open to a Court to consider question of sanction on the basis of facts coming to light during the course of judicial enquiry or during the course of prosecution evidence at the trial. At those stages it is open to the accused to place materials on record to show that the official duties and acts complained of were inter -related so as to attract protection under Section 197, Cr PC. This aspect has been highlighted by this Court in Bishnu Prasad Mohapatra v. Harihar Patnaik, 1992 (I) OLR 186, 73 (1992) CLT 537, and by the apex Court in Bakhshish Singh Brar v. Smt. Gurmaj Kaur and another : AIR 1988 SC 257.The petitioner's main grievance is about absence of necessary ingredients to constitute an offence under Section 294, IPC and absence of sanction under Section 197,CrPC If a motion is made before the concerned Court in this regard, the same shall be dealt with by it keeping in view the principles enunciated by the apex Court in K. M. Mathew v. State of Kerala and Ors.: 1993 (I) OLR 61, (1992) 5 OCR 66, and by this Court in Sudarsan Balabantrai and Ors. v. State of Orissa : (1992) 5 OCR 274. So far as applicability of Section 197, CrPC is concerned, the Court shall deal with that aspect keeping in view the principles laid down by this Court in Bishnu Prasad Mohapatra's case (supra) and by the apex Court in Bakhshish Singh Brar's case (supra). To avoid unnecessary delay the parties are directed to appear before the learned JMFC on 10th August, 1994 without any further notice. The revision application is disposed of. Send back the records immediately.