MOMADH RIYAAJ Vs. STATE

JUDGEMENT

(1.) Instant criminal misc petition has been filed by the petitioner challenging the order dtd. 18/11/2016 passed by learned Additional District and Sessions Judge No.2, Chittorgarh whereby, while allowing the revision petition No. 78/2015 filed by the respondents, the order passed by learned Additional Chief Judicial magistrate, Rawatbhata dtd. 24/8/2015 taking cognizance against the accused respondents for offence under Sec. 342, 330, 385 read with Sec. 149 IPC has been set aside.

(2.) Learned counsel for the petitioner submits that offence under Sec. 342, 330, 385 read with Sec. 149 IPC is prima facie made out against the accused respondents and acts done by the respondents cannot be said to be in discharge of official duty and same would not be protected by the armor of Sec. 197 of the Code. It is further argued that the point about sanction need not have been considered at the initial stage of taking cognizance. At this stage the Court should only see if a "prima facie" case is made out or not. Therefore, the petitioner cannot be prevented from seeking justice due to the omission committed by the State in not granting the requisite sanction. Thus, it is prayed that the Additional District and Sessions Judge No.2, Chittorgarh is liable to be quashed and set aside and the order dtd. 24/8/2015 passed by learned Additional Chief Judicial Magistrate, Rawatbhata taking cognizance against the respondents is liable to be restored.

(3.) Per contra, learned Public Prosecutor and counsel for the respondents submits that Sec. 197 of the Code creates an absolute bar in case of prosecution of a public servant. The said provision prohibits the Court from taking a cognizance of such offence that has been committed by a public servant in discharge of his official duty unless a sanction has been accorded by the appropriate government. The respondents allegedly committed the "offence" during the course of discharging their official duty and therefore, the issue of sanction has to be considered at the threshold of taking cognizance. Therefore, no interference is called for in the impugned order dtd. 18/11/216 and the misc petition is liable to be dismissed.