V.k.Godika @APPELLANT@Hash State of Rajasthan & Ors.

This criminal misc. petition under Section 482 CrPC has been filed by the petitioner being aggrieved with the order dated 08.07.2014 passed by Special

Judge, SC/ST Prevention of Atrocities Cases, Hanumangarh (for short ‘the revisional court’ hereinafter) in Cr. Revision Petition No.25/2013,

whereby it has dismissed the revision petition.

The said revision petition was filed by the petitioner against the order dated 28.06.2013 passed by the Judicial Magistrate, First Class, Hanumangarh

(for short ‘the trial court’ hereinafter) in Regular Cr. Case No.66/1997, whereby an application filed on behalf of the petitioner under Section

197(1) (3) CrPC was dismissed.

Brief facts of the case are that in the year 1997, the petitioner was posted as Superintendent of Police, Sri Ganganagar, however, a Cr. Case

No.385/1992, State vs. Malkhan Singh and others was pending before the trial court, wherein the court summoned one Tara Chand, resident of

District Sri Ganganagar as a witness. It appears that earlier the summons sent for summoning the said witness Tara Chand to the Superintendent of

Police was not returned either served or unserved and, therefore, the trial court while issuing fresh summons, sought explanation of the petitioner in

respect of non-returning of summons of the above referred witness either served or not served. The fresh summons issued to the witness was not

received by the trial court either served or unserved from the Office of the Superintendent of Police, Sri Ganganagar and no explanation in response to

the notice issued to the petitioner under Section 29 of the Rajasthan Police Act, 1861 (for short ‘the Police Act’ hereinafter) was submitted by

the petitioner.

Taking into consideration the above, the trial court on 11.03.1997 ordered for taking cognizance against the petitioner under Section 29 of the Police

Act. Being aggrieved with the same, the petitioner preferred S.B.Cr.Revision Petition No.31/1998 before this Court, which came to be dismissed by

this Court on 20.09.2011. After dismissal of the said revision petition, the trial court read over the substance of the accusation to the petitioner to

which he pleaded not guilty and claimed trial.

Thereafter on 28.06.2012, an application was moved on behalf of the petitioner under Section 197(1)(3) CrPC for terminating the proceedings against

him while claiming that the State Government, which is the competent authority had not granted any sanction to prosecute the petitioner and, therefore,

the proceedings against him are liable to be terminated. The said application of the petitioner came to be dismissed by the trial court vide order dated

09.08.2012 on the ground that since the order of taking cognizance has already been been upheld by the High Court, the application filed by the

petitioner under Section 197(1)(3) CrPC is liable to be dismissed.

Being aggrieved with the order of the trial court dated 09.08.2012, the petitioner preferred S.B.Cr.Revision Petition No.811/2012 before this Court,

which was partly allowed vide order dated 27.09.2012 and the order dated 09.08.2012 passed by the trial court was set aside and a direction was

issued to the trial court to consider the application preferred on behalf of the petitioner under Section 197(1)(3) CrPC on merits without being

influenced in any manner by the order of dismissal of the revision petition filed by the petitioner against the order of taking cognizance.

Pursuant to that, the trial court again considered the application filed by the petitioner under Section 197(1)(3) CrPC on merits, however, rejected the

same while observing that the act complained of against the petitioner cannot be said to have been done by him in the discharge of his official duties.

Being aggrieved with this, the petitioner preferred a revision petition before the trial court, however, the same has been dismissed vide impugned order

dated 08.07.2014. Hence, this petition.

Mr Vishal Singhal, learned counsel for the petitioner has argued that both the courts below have failed to take into consideration the fact that the

allegation against the petitioner is to the effect that he neglected in the discharge of his official duties as the summons of one of the witnesses, residing

in District Sri Ganganagar of which the petitioner was the Superintendent of Police at the relevant time, had not been returned either served or

unserved. Learned counsel for the petitioner has submitted that the said action or inaction on the part of the petitioner is an omission in the

discharge of his duties. Learned counsel has placed reliance on the definition of ‘offence’ given in the Criminal Procedure Code in Section

2(n) and also submitted that Section 29 of the Police Act speaks about the penalties for violation of the duty or willful breach or neglect of any rule or

regulation or some lawful order made by the competent authority. It is argued that from the undisputed facts of this case, it is clear that the

inaction/omission done by the petitioner is nothing but an act, which he committed while discharging his official duties.

Learned counsel for the petitioner has, therefore, submitted that any act or omission done by a public servant in the discharge of his or her official

duties can only be tried by any court after seeking prosecution sanction from the competent authority. It is submitted that as the petitioner was

working as Superintendent of Police, Sri Ganganagar at the relevant time and the competent authority for removing the petitioner was State

Government but no sanction was ever obtained from the State Government and in absence of that, the criminal proceedings against the petitioner

cannot be continue.

On the strength of the above arguments, learned counsel for the petitioner has argued that this criminal misc. petition may be allowed and the

impugned orders passed by both the courts below be set aside and the criminal proceedings pending against the petitioner may be ordered to be

terminated.

Per contra, learned Public Prosecutor has argued that the inaction/omission of the petitioner cannot be said to be done by him in discharging his official

duty, therefore, there is no requirement of obtaining prior permission of the State Government before prosecuting the petitioner.

Heard learned counsel for the parties and perused the impugned orders.

The allegation against the petitioner is to the effect that he failed to get the summons of one of the witnesses in a criminal case returned either served

or unserved to the trial court. It is also an allegation against the petitioner that he did not respond to the show cause notice issued by the trial court

seeking his explanation as to why the summons of that witness had not been returned served or unserved.

From the above facts, it can be gathered that the omission on the part of the petitioner or his negligence to return the summons of one of the

witnesses, sent to his Office, served or unserved, is an act made him answerable for a charge of dereliction of his official duty.

The Hon’ble Supreme Court in State of Orissa & Ors. vs. Ganesh Chandra Jew, AIR 2004 SC 2179(1) has held as under:

“8. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings

for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to

afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties

without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.

This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of

his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a

reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant

from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily

dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the

discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged

to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so

much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall

within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this

section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a

reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard

would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for

a charge of dereliction of his official duty, if the answer to his question is in the affirmative, it may be said that such act was committed by the public

servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public

servant.†                                                 [Emphasis

supplied]

I am of the opinion that it was the duty of the petitioner while working as Superintendent of Police to get the summons of a witness returned to the

concerned court, which had issued it, either served or not served and if there is any negligence on the part of the petitioner in doing the said duty, it

can be said that the act or omission on the part of the petitioner is very much connected to his official duty. Hence, before proceeding further against

the petitioner, a proper sanction by the competent authority is required to be obtained.

Admittedly in the present case, no sanction for prosecution was obtained by the trial court before taking cognizance against the petitioner under

Section 29 of the Police Act. Hence, the same is bad in the eye of law.

In view of the above discussion, this criminal misc. petition is allowed. The order dated 28.06.2013 passed by the Judicial Magistrate, First Class,

Hanumangarh as well as the order dated 08.07.2014 passed by Special Judge, SC/ST (Prevention of Atrocities Cases, Hanumangarh are set aside.Â

The criminal proceedings in Regular Cr. Case No.66/1997 pending before the trial court are terminated.

Record of the trial court be sent back forthwith.