Rajesh Sharma vs State of Madhya Pradesh

S.K. Palo, J.—Heard.

This petition under Section 482 of Cr.P.C has been filed by the petitioner to invoke the inherent jurisdiction of this Court and prayed to drop the criminal complaint registered against him as Criminal Case No. 666/2007 before the JMFC, Bhind.

Brief facts, just necessary for disposal of this petition are that at the relevant time, the petitioner was posted as Station House Officer, Mau, District Bhind. In Criminal Case No. 91/2000 (State of M.P Vs. Hajjan and others) pending for trail before the JMFC Gohad under Section 33 of the Forest Act 1927, the accused Hajjan was reported to be dead. Verification report of the death was called by the JMFC Gohad. On 6.11.2006, 6.2.2007 and 23.3.2007 letters were issued to SHO, Mau, District Bhind seeking verification of death of accused Hajjan. Subsequently, another letter dated 4.4.2007 was sent and a notice under Section 187 of Cr.P.C was also issued seeking explanation to the petitioner. On 21.4.2007, the learned JMFC directed to register a criminal case against the petitioner for not assisting the Court, which the petitioner was bound while discharging his duty as public servant.

Criminal case was registered under Section 187 of IPC and summon was issued to the petitioner, after taking cognizance by the learned JMFC, Gohad District Bhind.

On behalf of the petitioner, it is submitted that petitioner pursuant to the order dated 21.3.2007 left the Police Station, Mau on 22.3.2007 he was deputed for selection process of constables and given the charge to Shri K.S. Sikarwar, Sub Inspector, Police Station, Mau, District Bhind. On 19.4.2007 he returned to duties at Police Station, Mau, District Bhind and received the charge. In this regard entry in the Rojnamcha Sanha are annexed at Annexure P/2 and P/3.

The summon issued to the petitioner was received by the dealing staff and In-charge Station House Officer during the absence of the petitioner, but it was not brought into the knowledge of the petitioner. As the petitioner was admittedly not in the knowledge of the so-called summon and notice ever issued from the Court. The petitioner, therefore, claims that he was absent from duties from 22.3.2007 till 19.4.2007 and in his absence the said summon and notice were received by the staff of the Police Station, which was not in the knowledge of the petitioner. The petitioner was serving as Station House Officer and was on official duty during the course of the said offence.

The petitioner had no opportunity to explain the case before the complaint was registered against him by the learned JMFC, Gohad. No opportunity was provided to the petitioner as prescribed under Section 195 of Cr.P.C, no sanction was obtained under Section 197 of Cr.P.C before the cognizance was taken against the petitioner by the JMFC, Gohad. Therefore, it is requested to drop the criminal complaint registered against the petitioner. It is further submitted that the petitioner had no intention to defy the order of the Court. He is duty bound to endeavor and report the same. Subsequently report was submitted in the pending criminal case which demonstrate the bona fide of the petitioner.

On perusal of the record, it is found that the complaint was drafted by the JMFC, Gohad on 21.4.2007 and the same was placed on record in the Court of JMFC, Gohad District Bhind.

An application was filed by the petitioner on 7.9.2007 before the JMFC, Gohad under Section 197 of Cr.P.C showing that the cognizance against the petitioner is not in accordance with law. Vide order dated 6.7.2010 the learned JMFC, Gohad rejected the application, stating that once the cognizance has been taken, the JMFC has no power to revise it or to re-consider it''s order, it is beyond his jurisdiction.

In this background the petitioner has filed the present petitioner under Section 482 of Cr.P.C.

Considered the submissions made by the parties and perused the documents.

It is apparent that the complaint has been filed by the JMFC, Gohad before his own Court on 21.4.2007, which is not as per principle of natural justice. This complaint under Section 187 of Cr.P.C would have been filed before the CJM, Bhind. One cannot be the complainant and the Judge at the same time in given matter.

Section 197 of Cr.P.C reads as follows:-

(1) When any person who is or was a Judge or Magistrate or 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 -

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;

(Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (I) of article 356 of the Constitution was in force in a State clause (b) will apply as if for the expression ''State Government'' occurring therein, the expression "Central Government" were substituted)

In State of H.P. Vs. M.P. Gupta, held:

(B) Criminal P.C (2 of 1974), S. 197 - No prosecution except with previous sanction - Protection afforded to public servant - Use of words ''no'' and ''shall'' in S. 197 - Precludes court from taking cognizance of complaint against public servant unless sanction is obtained. Similarly in State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, held:

(A) Criminal P.C (2 of 1974), S. 197 - Sanction to prosecute - Protection afforded to public servant - Expression ''no'' Court shall take cognizance of such offence except with the previous sanction makes protection mandatory - Further use of words ''no'' and ''shall'' Bars the very cognizance of complaint. Interpretation of Statues - Words ''shall'' and ''No'' impact. 12. Section 197 of Cr.P.C is a protective umbrella for the government servants before cognizance is taken for any offence alleged to have been committed by him while acting or purporting to Act in the discharge of his official duty. This extent of protective cover to every act or omission done by the public servant. Therefore, omission if any by the petitioner is covered under Section 197 of Cr.P.C.

In view of the matter above, the prosecution in this case would amount to abuse of process of law. Therefore, the complaint case registered against the petitioner is liable to be quashed and the same is hereby quashed.

Accordingly, petition under Section 482 of Cr.P.C stands allowed.

Certified copy as per rules.

Before Section 197 of Cr.P. C can be invoked, it must be shown that the officer concerned was accused of offence alleged to have been committed by him while acting or purporting to Act in discharge of its official duty.

The petitioner was serving as public servant at the relevant time and was expected to provide the report. He is alleged to have omitted to assist the public servant when bound by law to give such assistance.

The learned JMFC also over-looked the provision of Section 195 of Cr.P.C, in which it is provided that no Court shall take cognizance of offence punishable under Section 172 to 188 of Indian Penal Code, except on the complaint in written by the public servant concerned or by some other public servant to whom he is administratively subordinate.