HIMATSINH NARUBHA JADEJA v. K K PATEL

entertained. The learned advocate Mr. Shethna has appeared for the complainant-applicant in Criminal Revision Application No. 514/97 and has supported the judgment of the learned Magistrate. The learned APP Mr. Divetia also has supported the said judgment and order. They have relied upon the judgment of the Supreme Court in the matter of RONALD WOOD MATHAMS & ORS VS STATE OF WEST BENGAL, (AIR 1954, SC, 455). (cid:9)The applications have been opposed by the learned advocates Mr. B.M.Gupta and Mr. S.V.Raju. They have supported the judgment and order of the learned Additional Sessions Judge. It has been further argued that the Revision Application by the prosecution is not maintainable. In support of their contention, they have relied upon plethora of judgments. They have emphatically argued that the accused were entrusted the investigation in respect of the above referred M.Case No. 124/92 lodged against the complainant.

The statement of the complainant was recorded in course of investigation, and as a result of the said investigation, he was arrested. All of the said acts were committed by the accused in discharge of their official duties, and the previous sanction to prosecute under section 197 CRPC is sine-qua-non. Even otherwise, in view of the provisions contained in section 161 of the Bombay Police Act, the complaint was hopelessly time barred. (cid:9)There can not be any dispute with regard to the principle enunciated in the judgments relied upon by the learned advocates. I do agree that for the acts committed in discharge of their official duties, no prosecution can be lodged against the public servants without previous sanction of the appropriate Government as envisaged under section 197 CRPC. I also agree with the contention that no prosecution shall be maintainable after more than one year of the act done under the colour or in excess of any duty or authority.

However, the question here is whether sufficient evidence was placed before the learned Magistrate to hold that the acts complained of were committed in discharge of the official duties as contended and whether the learned Additional Sessions Judge was right in exercising her revisional jurisdiction and to interfere with the order made by the learned Magistrate. In my view, the learned Magistrate was right in holding that the question required further evidence. If the prosecution ultimately proves that a conspiracy was hatched by the accused persons, the court may take a view that the conspiracy was not part of the duty and any act done in furtherance of the said conspiracy, can not be said to have been done in discharge of the official duties, and in that case, previous sanction of the appropriate Government may not be necessary. The question, therefore, could not have been decided at the stage of lodging the complaint.

It could not have been conclusively held that the acts complained of were committed by the accused in discharge of their duties or vice-a-versa. Besides, the question of limitation under section 161 of the Bombay Police Act was never raised before the learned Magistrate. It was, therefore, not open for the accused to raise the said contention before the learned Additional Sessions Judge and the learned Additional Sessions Judge in entertaining and deciding the said issue has clearly transgressed her jurisdiction. Further, the order dated 17th May, 1997, made by the learned Magistrate did not conclude the issue raised before him and, therefore, was necessarily an interlocutory order. In view of the provisions contained in section 397 (2) CRPC, a Revision against the said order would not be maintainable. In my view, therefore, the Revision Application No. 198/97 preferred before the learned Additional Sessions Judge was not maintainable.

The learned Additional Sessions Judge has thus transgressed her jurisdiction in entertaining and allowing the said Revision Application. (cid:9)The judgment and order dated 26th August, 1997, passed by the learned Additional Sessions Judge Court No. 17, Ahmedabad, in Criminal Revision Application No. 198/97 is quashed and set aside. The order dated 17th May, 1997 made by the learned Metropolitan Magistrate, Court No. 11, Ahmedabad, on application Ex.3 in Criminal Case No. 1463/94 is restored. The Criminal Case now shall proceed further in accordance with law. (cid:9)The Criminal Revision Application No. 514/97 is allowed. In view of the order made on Criminal Revision Application No. 514/97, no further order is required to be made on Criminal Revision Application No. 532/97 and is accordingly disposed of. (cid:9) (cid:9)27.08.1999 (cid:9)Learned advocate Mr. Raju appearing for respondent no. 2 prays that the judgment be stayed for a period of three weeks. Request is rejected. (cid:9) (cid:9)..... JOSHI* (cid:9)