Sher Singh v. Rajender Singh & Ors.

Present: Mr.Sandeep Kotla, Advocate for the petitioner. ** Sabina, J. This petition has been filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' for short) for quashing of orders dated

9.11.2010 and 15.10.2010 passed by the Additional Sessions Judge Hisar and Chief Judicial Magistrate Hisar respectively in compaint case No. 279- C dated 23.5.2001 under Sections 380/452/34 of the Indian Penal Code (`IPC' for short) and to allow the application for granting permission for Crl.Misc. No. M-33936 of 2010 2 prosecution under Section 197 Cr.P.C. Petitioner has filed a complaint against the respondents under Sections 380/452/34 IPC. The case of the petitioner in the complaint is that on 27.4.2001 at about 4.00 a.m., the respondents had entered the factory of the petitioner by jumping wall and had taken away two electric motors which were attached with ice plant in order to cause loss to the petitioner. An application was filed by the petitioner under Section 311 Cr.P.C. Vide order dated 15.10.2010, the said application was dismissed by the trial Court. In para 7 of the impugned order, it was held as under:- “Thus, Section 197 Cr.P.C. talks of previous sanction before launching the prosecution either against a Judge or a Magistrate of a public servant. But in the instant case, neither previous sanction was applied nor previous sanction was obtained. If the complainant has applied for obtaining sanction during the pendency of the complaint that has no bearing on the merits of the case. Allowing of the application and registered postal receipt in the form of additional evidence does not serve any purpose because it is only the application given to Deputy commissioner for obtaining sanction against the accused for launching of the prosecution but in the instant case, the complaint was filed by the complainant without any previous sanction of the State Government as is contemplated under Section 197 Cr.P.C. No sanction has been given by the State Government. The complainant wants to prove application for obtaining sanction and its registered postal receipt. The evidence sought to be produced is not very much material and is not relevant. Therefore, the Crl.Misc. No. M-33936 of 2010 3 application in hand being without being merit is dismissed.” The revision petition filed by the petitioner was dismissed by the learned Additional Sessions Judge vide order dated 9.11.2010. In para 5 of the said order, it has been held as under:- “The complainant in his application under Section 311 Cr.P.C. has no where stated as to how the testimony made by the Investigating Officer (PW-3) in a case FIR bearing No. 191 dated

28.4.2001 titled as State Versus Jitender is just and necessary for the proper adjudication of the case in hand. The learned trial Court in its impugned order dated 7.1.2010 has aptly held, that “in so far as statement of Investigating Officer is concerned that is not relevant because the judgment Ex.P3 of the case titled as State versus Jitender is already in the Court file.” Section 197 Cr.P.C. reads as under:- “197. Prosecution of Judges and public servants.-(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 offiical 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, Crl.Misc. No. M-33936 of 2010 4 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 (1) of articles 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 (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression 'state Government” were substituted. (3-A)Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause(1) of article 356 of the Crl.Misc. No. M-33936 of 2010 5 Constitution was in force therein, except with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August,1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause(1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.]

4. The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held”. In the present case, the alleged offence was committed by the respondents while they were not acting in discharge of their official duty. Rather the case of the complainant, as stated in the complaint, is that at about 4.00 a.m. on 27.4.2001, the respondents had entered in his factory by jumping the Wall and had taken away two electric motors. Since the respondents were not acting in discharge of their official duty, no sanction for prosecution of the respondents is necessary in this case. Crl.Misc. No. M-33936 of 2010 6 Hence, no ground for interference is made out. Dismissed. ( Sabina ) Judge November 18, 2010