GHANSHYAM GUPTA Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE accused -petitioner has filed this criminal misc. petition under Section 482 Cr.P.C. against the order dated 24.3.2011 passed by the Additional Sessions Judge (Fast Track) No. 2, Karauli in Criminal Revision Petition No. 24/2010 whereby the learned Revisional Court by dismissing the revision petition filed by the petitioner upheld and affirmed the order dated 29.10.2009 passed by the Additional Judicial Magistrate, Karauli in Criminal Case No. 229/2009 whereby the learned trial Court took cognizance against the petitioner and co -accused for the offence under Section 427 IPC.

(3.) IT was submitted by the learned counsel for the petitioner that it is an admitted fact that at the relevant time the petitioner was posted as Tehsildar, Karauli and even according to the complainant the stone slabs were unloaded by him on public way near a school. It was further submitted that the petitioner at the time of commission of the alleged offence was working in the capacity of a public servant removable only by the sanction of the State Government and the alleged offence was committed by him while acting or purporting to act in discharge of his official duty as a public servant and, therefore, as per Section 197 Cr.P.C. cognizance could not have been taken against him except with the previous sanction of the State Government and, therefore, cognizance taken against the petitioner is bad in law, as it is an admitted fact that no such sanction was obtained from the State Government to prosecute the petitioner. It was further submitted that provisions of Section 197 Cr.P.C. are mandatory in nature and in absence of a valid sanction, the order of cognizance is void ab -initio and is liable to be quashed and set aside. It was also submitted that the petitioner was having authority to remove the encroachment made by the complainant on a public way under order dated 10.2.2009 passed in Case No. 34/2009 and in respect of the removal of the said encroachment, a 'Fard' report was also prepared on 27.2.2009. It was further submitted that there are/material contradictions with regard to the date on which the encroachment made by the complainant was removed and the manner in which it was done in the complaint filed by the respondent and the statements recorded under Sections 200 & 202 Cr.P.C. It was brought to the knowledge of the Court that as per the averment made in the complaint, the encroachment was removed by the petitioner and co -accused on 27.2.2009, whereas the respondent in his accused on 27.2.2009, whereas the respondent in his statement recorded under Section 200 Cr.P.C. in a very specific manner has alleged that the encroachment was removed on 29.2.2009.