Criminal Petition No. 396 of 2009 · Andhra Pradesh High Court

Heard Sri K.R.Koteswara Rao, the learned counsel for petitioners, the learned Additional Public Prosecutor for first respondent and Sri B.Nalin Kumar, the learned counsel for second respondent.

Petitioners are A-1 and A-2 in C.C.No.1086 of 2008 on the file of the X Additional Chief Metropolitan Magistrate,

Secunderabad (trial court). That case has been taken cognizance of by the trial court for offences punishable under Sections 409, 120-B and 506 r/w 34 IPC.

The point for determination is whether there are grounds to quash the aforesaid case.

The substance of the charge brought against the petitioners is that certain property of the cantonment board at Secunderabad was leased out to some third parties and the rental amounts were being utilized by the first petitioner with the connivance of the second petitioner while the said lease amounts have to be remitted to the treasury account of the cantonment board. It is not necessary to go into the other details.

One important contention which has been raised by Sri Koteswara Rao while seeking for quashing of the aforesaid criminal case is that both the petitioners are central government employees and sanction to prosecute them under Section 197 of the Code of Criminal Procedure, 1973 (for short – Code), is necessary and the learned Magistrate totally ignored this aspect of law and took cognizance and therefore this Court should now interfere. Sri Koteswara Rao also relied upon two decisions of the Hon’ble Supreme Court, one given in Abdul Wahab Ansari vs. State of Bihar [1] and the other given in Anita Malhotra vs. Apparel Export Promotion Council [2] .

It is true that Section 197 of the Code is intended to give protection to a public servant who is not removable from service save by or with the sanction of the concerned Government for prosecuting him for any offences alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. This proposition is reported in the first of the aforesaid decisions. The learned Magistrate for taking cognizance of the case has passed an elaborate order dated 31.10.2008 wherein he held that since the alleged offences relating to misappropriation do not form part of discharge of public duties sanction under Section 197 of the Code is not necessary. In concluding so he also relied upon one decision of the Hon’ble Supreme Court and one decision of the Punjab High Court. Thus, I am of the opinion that it is not proper to go into that question in this petition under Section 482 of the Code.

The other contention raised is that this court should entertain the documents and consider the case of the petitioner for quashing the case and in support of this proposition Sri Koteswara Rao relied upon the decision given in Anita Malhotra case (2 supra). His plea is that the property in question has been under lease since 40 years and the amounts collected from the lease are being utilized for the welfare of an employees association and that these two petitioners who are officials have nothing to do with the said money and they were not even working in the Secunderabad Cantonment Board at the time when the bank accounts were opened. These are pure questions of fact which cannot be gone into in this petition under Section 482 of the Code. In my opinion, the petitioners can raise both their pleas before trial court in application for discharge, if they wish to do so.

Sri Koteswara Rao’s next plea is that the petitioners are public servants and it may be difficult for them to attend the court for every date of hearing in this case and therefore their presence for every date of hearing before trial court may be dispensed with and that they would file discharge applications. I think this plea can be considered.

The petitioners shall file discharge application within 15 days from today and on filing such applications, their presence for every date of hearing is dispensed with before the trial court till the disposal of the discharge application. The trial court shall expeditiously dispose of the discharge applications in accordance with law.

This petition is accordingly disposed of. The miscellaneous petitions pending, if any, shall stand disposed of accordingly. ______________________ N. RAVI SHANKAR, J 29th June 2012 CVRK THE HON'BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.396 of 2009 29th June 2012 CVRK [1] [2] AIR 2000 SC 3187 (2012) 1 SCC 520