Radbey Shyam Pushkar vs Jamuna Das

B.P. Singh, J.—This is an application for revision against the order dated 14-11-1991 passed by IIIrd Additional Munsif Magistrate, Jhansi in Jamuna Das v. Radhey Shyam Pushkar Criminal Case No 674 of 1991 under Sections 161, 506, 343, 504, 323 IPC P. S. Babina district Jhansi.

The facts of this case are very simple. One Ram Das had lodged an FIR against Jamuna Das in P. S. Babina and Crime No. 34/91 was registered in the Police Station u/s 394 IPC. The case was investigated by the Applicant Radhey Shyam Pushker, who was posted as Sub Inspector in P. S. Babina. During the course of investigation, Jamuna Das was arrested-He was released on bail and thereafter a charge-sheet in the said case was submitted on 8-8-1991 Under Sections 452, 323 and 504 IPC.

After his release from jail, Jamuna Das filed a private complaint against the Applicant Radhey Shyam Pushker on 11-7-1991 in the court of Chief Judicial Magistrate, Jhansi, Under Sections 343, 161, 504, 506 and 323 IPC.

The learned Magistrate took cognizance and after recording statements of the witnesses u/s 200 and 202 Code of Criminal Procedure passed an order on 14-11-1991 summoning the Applicant Radhey Shyam Pushker for the offences Under Sections 343, 161, 504, 506 and 323 IPC It is against this order dated 14-11-1991 that the present application for revision has been moved.

Affidavit and counter affidavit have been exchanged and the application for revision is being finally disposed of at the admission stage.

The main contention of the Applicant''s counsel is that the complaint dated 11-7-1991 filed by Jamuna Das against the Applicant was false, fictitious and frivolous and the complaint was barred u/s 197 Code of Criminal Procedure because the Applicant was acting in his official capacity when Jamuna Das was arrested and no sanction for prosecution of the Applicant was obtained by Jamuna Das before the filing of the complaint. On the other hand, the contention of the learned Counsel for Jamuna Das is that there was no need to obtain any sanction because Jamuna Das was arrested on 8-5-1991 while in the Police papers the arrest of Jamuna Das was falsely shown as 14-5-1991. It was also contended that the provisions of Section 197 Code of Criminal Procedure were not attracted to the case of the Applicant.

Section 197(1) Code of Criminal Procedure provides that when any person who is a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the State Government. The words a public servant not removable from his affice save by or with the sanction of the Government" leave no room for doubt that the provisions of Section 197(1) Code of Criminal Procedure are available only to that public servant who is removable from service by or with the sanction of the Government.

It is not disputed that it may not always be necessary to determine the question of the want of sanction as soon as the complaint is filed. The reason is very simple. The complainant may not disclose the fact which may attract the provisions of Section 197(1) Code of Criminal Procedure, but it is always desirable that if a person claims the benefit of Section 197(1) Code of Criminal Procedure then this question must be decided at the earliest opportunity. Of course, the burden to prove that he is entitled to the benefit of Section 197(1) Code of Criminal Procedure lies upon the person claiming the benefit. In this case, the burden lies upon the Applicant to show that he could not be prosecuted for the alleged offences in the complaint case without the sanction of the State Government.

A Sub-Inspector of Police is not removable from office save by or with the sanction of the Government. A Sub Inspector can be removed from service by the Inspector General of Police or by the Deputy Inspector General of Police. Thus, protection of Section 197(1) Code of Criminal Procedure is not available to the Applicant. It may also be noted here that according to the case of the complainant, he was arrested by the Applicant on 8-5-1991 while the case of Radhey Shyara Pushker is that he had arrested the complainant on 14-5-1991, This is a disputed question of fact and will have to be gone into by the learned Magistrate. It is not necessary to give any finding on the question as to what was the date of arrest of Jamuna Das, as this question can only be decided after the parties have led evidence in support of their respective cases.

In this view of the matter, this application for revision has no force and is liable to be dismissed.

The application for revision is dismissed.