R.k. Charar v. State Of M.p

(1.) THIS revision petition is directed against the order dated 5-7-1984 passed by the Judicial Magistrate First Class Mandsaur in Criminal Case No. 72 of 1984 whereby he has held that sanction as contemplated under section 197 of the Code of criminal Procedure 1973 (for short the Code) is not necessary.

(2.) THE facts giving rise to the petition are these. The petitioner is a Town inspector of Police in the employment of the State of Madhya Pradesh.

(3.) IN exercise of powers under section 102 of the Code the Police Mandsaur had effected seizure of ornaments and silver from one Shobhalal. On 17-1-1984, the learned Chief Judicial Magistrate Mandsaur ordered that the property be returned to shobhalal on Supratnama on furnishing security in the sum of Rs. 10,000/ -. The petitioner did not comply with the order.

(4.) ON a report being made to the Chief Judicial Magistrate Mandsaur that his order regarding return of the property was not complied with and Shobhalal was dealt with in an unbecoming manner, an inquiry was made.

(5.) AFTER inquiry the learned Chief Judicial Magistrate filed a complaint under section 166, Indian Penal Code, against the petitioner.

(6.) THE contention of the petitioner was that whatever he did, he did while on duty and therefore without the sanction of the State Government cognizance of the offence complained of could not be taken.

(7.) THE learned Magistrate negatived the aforesaid contention holding that it is not that for every offence committed by a public servant sanction under section 1% of the Code is required.

(8.) THE point for consideration is whether the impugned order deserves to be set aside in revision.

(9.) AS pointed out in the decision in M. J. Georges Case, 1984 Cr. LJ. 717 in order that the applicability of the provision under section 197 of the Code regarding sanction is attracted in the case of a public servant other than a Judge or a Magistrate, the status or the position of the public servant should be such that he is not removable from his office save by or with the sanction of the Government. However, by M. P. Amendment the protection contemplated by the provision aforesaid has been extended even to the non-gazetted members of the State Police Force.

(10.) THE crucial question for consideration, therefore, is whether in the instant case, before cognizance of the offence could be taken, sanction under section 197 of the Code was necessary.

(11.) IN paragraph 7 of the complaint it has been stated that from the reply filed by the petitioner, it was clear that he did not return the property in question with a view to cause injury to Shobhalal. In the circumstances of the case, the conclusion is clear that there is no nexus between the offence and the official duty. The petitioner. cannot successfully contend that what he did, he did in the discharge of his official duty. In this connection the decision in Manohar Naths case, 1983 (II) Cr. LJ. 988, makes an illuminating reading. Therein it has been observed as under :-

"where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as an offence has no necessary connection between it and the performance of the duties of $ public servant, the official status furnishing only the occasion or opportunity for the commission of the offence. "

(12.) FOR the foregoing reasons, the revision petition fails and is dismissed. Revision Petition dismissed.