DINESH KUMAR SINGH,J. - (1.) The present petition under Section 482 Cr.P.C. has been filed for quashing of the proceedings of Complaint Case No.14825 of 2006, registered under Sections 147, 323, 451, 427, 504 and 506 IPC, pending in the Court of Chief Judicial Magistrate, Faizabad (Now Aupdhya) as well as the summoning order dated 19.7.2007, by which the learned Magistrate has summoned the petitioner and other accused on an application filed by the respondent no.2 under Section 156 (3) Cr.P.C., which was treated as complaint by the learned Magistrate. The petitioner was Joint Magistrate/Sub-Divisional Magistrate, Ayodhya at the relevant time.
(2.) Learned counsel for the petitioner submits that the petitioner being the public servant, the learned Magistrate ought not to have taken cognizance of the offence and summoned the petitioner without there being sanction by the Government/competent authority under Section 197 Cr.P.C. He further submits that the alleged offence against the petitioner was in discharge of his public duty and, therefore, the provisions under Section 197 Cr.P.C. are attracted in the present case. He also submits that the learned Magistrate without application of mind and ignoring the mandatory provisions of Section 197 Cr.P.C., has summoned the petitioner and other accused in the aforesaid case. He, therefore, submits that the complaint and the summoning order are liable to be quashed by this Court.
(3.) On the other hand, Sri Vinod Kumar Singh-II, learned counsel for respondent no.2 submits that the offence complained of, was not committed by the petitioner in performance of his public duty and, therefore, the provisions of Section 197 Cr.P.C. are not attracted in the present case. When a public servant is an accused in a criminal offence, the learned court is required to see whether the sanction would be required under Section 197 Cr.P.C. by the competent authority to prosecute him or not. This is a question which needs to be decided at the threshold. It is well established that if the offence complained of, has been committed in discharge of public duty, the sanction under Section 197 Cr.P.C. by the competent authority a sine qua non for prosecuting a public servant. ;