Code of Criminal Procedure, 1973 – s.197 – Prosecution of Judges and public servants – Appellant-District Town Planner (Enforcement) and 12 others forcibly entered the college of the respondent-chairman, created chaos and took away the college telephone forcibly – Complaint filed but no action taken – Thereafter, the appellant asked for the building map/plan and other documents, and one of the accused demanded illegal gratification but the respondent refused – Consequently, the appellant forcibly entered the college premises along with police personnel with heavy machinery and equipment for demolition and after vacating the campus, the demolition took place – In a writ petition, the Local Commissioner appointed by the High Court submitted his report that the existing building was constructed prior to 2004 much before the notification whereby respondent’s college area was declared controlled area – Private complaint filed – All accused discharged except the appellant-and accused nos.2 and 4 – Summoning order passed against them u/ss. 452, 506, 427, 384, 440, 166 read with s.120-B IPC – Thereafter, petition u/s. 482 CrPC by the appellant seeking quashing of the complaint, all consequential proceedings, and the summoning order – High Court dismissed the petition – Correctness:
Held: Appellant who is accused of carrying out the demolition was doing so within the scope and ambit of her authority – Not a case where appellant carried out the demolition dehors any legal backing or basis; neither was the said act of carrying out of the demolition outside the scope of her authority as the District Town Planner in the Enforcement Division – Appellant was carrying out the orders of the superior officers – There is a correlation between the act of demolition and the discharge of official duty – Demolition was carried out during the course of performance of appellant’s official duties – Fact that an application was filed seeking regularisation of the construction put up by the first respondent would indicate that even according to the first respondent, there was a digression and other irregularities in the construction put up which required regularisation – It cannot be said that when such an application was pending, the appellant had no authority to demolish the construction – Impugned demolition cannot also be termed as an “excess” – First respondent ought to have sought sanction for prosecution u/s.197 – Same, not having been done vitiated the initiation of the criminal proceeding against the appellant – Thus, the summoning order and the consequent steps taken by the trial court pursuant to the said summoning order quashed – Since there was no prior order of sanction passed u/s.197 of the CrPC, the initiation of the complaint itself, is non est. [Paras 32, 33] Code of Criminal Procedure, 1973 – s.197 – Prosecution of Judges and public servants – Object and purpose of s.197: Held: Is to protect officers and officials of the State from unjustified criminal prosecution while they discharge their duties within the scope and ambit of their powers entrusted to them – Reading of s.197 indicate that there is a bar for a Court to take cognizance of such offences mentioned in the said provision except with the previous sanction of the appropriate government when the allegations are made against, inter alia, a public servant – Salient words relevant under sub-section (1) of s.197 are “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction” – Thus, for the purpose of application of s.197, a sine qua non is that the public servant is accused of any offence which had been committed by him in “discharge of his official duty” – Said expression clearly indicate that s.197 would not apply to a case if a public servant is accused of any offence which is de hors or not connected to the discharge of his or her official duty. [Para 22]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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