Anil Shet Gaonkar vs Abdulla Khan Karol and Another

T.K. Chandrashekhara Das, J.—Admit. By consent heard forthwith.

The petitioner who is the accused in Criminal Case No. 63/P/1991 on the file of the Judicial Magistrate, F.C., Sattari has filed this petition u/s

397 of Cr.P.C.

The petitioner on receipt of summons from the Magistrate filed a petition requesting the Magistrate to discharge him from the case mentioned

above. The Magistrate refused his prayer by his Order dated 7-12-1994. Against that order the petitioner approached this Court by filing this

revision petition.

The facts of the case in short is as follows :---

The petitioner is a Range Forest Officer at Sattari at the relevant time. He had to book a case against the first respondent along with eight other

persons suspecting them to have committed some offences under the Indian Forest Act. In the process of the investigation of that forest case the

petitioner had to call the respondent to his office on 14-9-1991 at 10.30 a.m. and arrested him and released him after necessary interrogation on

bail at 10.00 a.m. on the next day. The first respondent thereupon filed a complaint u/s 200 Cr.P.C. against the petitioner alleging that the petitioner

had called him to his office and made him to remain in his office unnecessarily for 24 hours without permitting him to go anywhere and thus alleged

to have committed offences under sections 341, 342, 348 and 349 of I.P.C. The Magistrate after taking cognizance of the offences, issued

process to the petitioner. On his appearance, the petitioner filed a petition before the Magistrate on 8-7-1994, which is at page 11 of the paper

book, praying that he may be discharged as no offence has been disclosed to have been committed by him. He also pleaded that no sanction has

been obtained u/s 197 of Cr.P.C. before launching prosecution against him and therefore he is entitled to be discharged. The Magistrate by the

impugned order declined to discharge the petitioner, holding that there is enough evidence on record against the accused/petitioner to issue

process. The Magistrate seems to have disposed of the plea of the petitioner u/s 197 Cr.P.C. on the premises that the offences alleged against him

were purportedly not committed by him in his official capacity.

The learned Counsel for the petitioner mainly based his argument on two grounds, namely (i) no offence has been disclosed against him in the

complaint; and (ii) no sanction has been obtained u/s 197 Cr.P.C. Elaborating his argument, learned Counsel for the petitioner submits that being a

Range Forest Officer, he is vested with the powers of seizure, arrest and release in respect of persons and property involved in the offence. He

took me through the provisions of the Indian Forest Act, 1927 particularly sections 50, 52, 62, 64 and also 65. These provisions make it amply

clear that those powers of a Range Forest Officer like the petitioner are to be exercised under the Act in discharging his official duty. Section 54 of

the Indian Forest Act gives power to a forest officer to arrest a person without a warrant. So also section 65 gives power to the forest officer to

release on bond a person arrested and section 68 gives a forest officer power to compound an offence. Before the Magistrate the petitioner

categorically stated that he was doing his official duty in calling the first respondent to his office as he was suspected to have committed a forest

offence and a case has been registered as Criminal Case No. 22/N/91 against the respondent and eight others. In fact the complaint filed by the

respondent before the Magistrate clearly states that on 14-9-1991 at 10.30 a.m. the petitioner called the respondent No. 1 in his office and he

further alleged that after attending his office the respondent warned him not to leave the office without allowing him to inform his family members

and ultimately he alleges that he was released on 15-9-1991 at 10.00 a.m. and the complainant styled the petitioner in the complaint as a Range

Forest Officer at Sanguem. From these facts there were sufficient material for the Magistrate to infer that the petitioner was alleged to have

committed an offence while he was functioning as a Range Forest Officer and therefore necessarily the Magistrate should have looked into the fact

whether sanction u/s 197 Cr.P.C. is necessary or has to be obtained before taking cognizance of the offence. The learned Counsel for the

petitioner submitted before me by taking me through the relevant contentions taken by the respondent No. 1 in his complaint and argued that no

offence under sections 341, 342, 348 and 349 has been disclosed. Whatever that may be, this aspect need not detain me very much because the

second ground taken by the petitioner will be sufficient for me to dispose of this petition.

Admittedly, as I pointed out earlier, the complaint itself disclosed that the petitioner was a Range Forest Officer. He was impleaded in the

complaint as a Government Official and he was alleged to have committed the offence while discharging his official duty. Therefore the complaint

filed before the Magistrate by the respondent will disclose that the petitioner is a Government servant and the offence alleged to have been

committed by him was committed during the course of his official duty. Therefore, essentially and naturally, the Magistrate''s attention should have

been focussed to section 197 of Cr.P.C. even at the time of entertaining the complaint.

Needless to say section 197 of Cr.P.C. is mandatory. The conditions prescribed under that section is a pre-requisite for taking cognizance of a

criminal complaint against a Government servant. If at all, while discharging his official duty a Government servant commits an offence, in all

probability the Government servant in such circumstances would have committed the offence or do some excesses, even then prosecution will lie

only if prior sanction from appropriate authority is obtained. The legislative object of this section is not only to safeguard the interest of the

Government servant from vexatious litigation or other harassments, but also to safeguard the interest of the State itself. Obtaining sanction from the

Government to prosecute its servant u/s 197 amounts to a notice to the Government about the alleged offence committed by its servant and gives

the Government an opportunity to take corrective steps or appropriate action deemed fit in the circumstances in the public interest. Therefore, the

sanction u/s 197 Cr.P.C. is mandatory, without which the complaint against a Government servant becomes ab initio liable to be dismissed. The

same view has been expressed by another learned Judge of this Court in a recent decision in Shri Devu Benaulekar v. Shri Menino Rodriques and

another 1995(1) Goa L.T. 52. Relying on the Supreme Court decision, the learned Judge in that case even went to the extent of holding that even

if in the discharge of his duties or official function an officer of the Government has done any excesses, does not itself dispense with the legal

requirements to obtain sanction of the Government before prosecuting that officer. Therefore, it is clear in this case the order under Revision is

liable to be set aside for no offence could have been taken cognizance of by the learned Magistrate without the sanction of the Government.

Admittedly no such sanction has been obtained before filing the complaint before the Magistrate.

The learned Counsel for the respondent No. 1 has submitted that no revision will lie against the impugned order as it is an interlocutory order u/s

397 Cr.P.C. I am afraid if such a ground is sustainable, in view of the fact that the plea of discharge of the petitioner was dismissed by the Court

and cannot be treated as an interlocutory order. In this context the decision of the Supreme Court in Madhu Limaye Vs. The State of Maharashtra,

of the said decision reads as follows :---

..... Yet, for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the

plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the

meaning of section 397(2).

In view of the above decision the nature of the relief sought by the petitioner becomes a decisive factor to determine as to whether the order

passed by the Court is interlocutory or not. If, the Magistrate had accepted the plea of the petitioner the entire proceedings against the petitioner

would be deemed to have been closed and the order would become final as far that Court is concerned. Order of rejection of the petitioner''s plea

by the Magistrate cannot be treated as interlocutory.

However, assuming for argument sake that, it is an interlocutory order, even then this Court has jurisdiction to entertain this case using the

inherent power of this Court u/s 482 of Cr.P.C. As discussed earlier by me, I feel that it is a clear case of abuse of process while the complaint of

the respondent No. 1 discloses that the Government servant alleged to have committed the offence and he is styled as an accused in the complaint,

the Magistrate without applying his mind has taken cognizance of the complaint which will definitely rope in the term of the abuses of the process of

Court. This Court in such circumstances has got every power to interfere with such an order even if it is termed as an interlocutory order.

Another argument advanced by the learned Counsel for respondent No. 1 is that the entire facts are not now before the Magistrate, therefore

at this stage it is premature for this Court to interfere. A very interesting but strange argument has been advanced by the counsel for the respondent

No. 1 that there was no material before the Magistrate at this stage to show that the petitioner was discharging his official duty. There was no proof

that the day on which he called the respondent to his office the officer was on his actual duty and unless that fact has been established by the Court

below, at this stage, the interference by this Court is not called for, argues the counsel. In fact it is a matter of proof. I am really not concerned with

that aspect in this case. Main concern in this case is whether the plea of the petitioner was rejected by the Magistrate rightly or not. The revisional

power of this Court, either u/s 397 or section 482 Cr.P.C. is to be exercised to prevent any abuse of the process and through such abuse any

innocent person being dragged into a Court of law to face trial unnecessarily. That is the only circumstance to justify this Court to interfere in this

matter. In this context, as observed by the Supreme Court in Punjab National Bank and others Vs. Surendra Prasad Sinha, , a very thought

provoking passage has to be extracted here as mentioned in paragraph 5 of that judgment which reads thus :---

It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid

impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistrate to

find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or

creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be

circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process

lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice

and maintenance of law and order in the society are the prime objects of criminal justice but would not be the means to wreck personal vengeance.

Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie

case to harass them for vendetta.

Therefore the courts must be very alert for preventing innocent persons in being dragged unnecessarily into a Court of law especially in a criminal

trial and while taking cognizance of the offence, the Criminal Court should be more alert and more careful in evaluating the facts disclosed by the

complainant before the Court and take cognizance of any offence against innocent persons.

In view of the above discussions, I have no hesitation to hold that the order of the Magistrate is not sustainable in law. I therefore, allow the

revision petition and set aside the Order under revision. Consequently the process issued against the petitioner is quashed and he stands

discharged.