JAYASHREE TIWARI,J. - (1.) HEARD learned counsel for the revisionist, learned counsel for the opposite party as well as learned A.G.A. and perused the record. The present revision has been filed against the order dated 30.3.2012 whereby, the application of the applicant revisionist under Section 197 Cr.P.C. dated 22nd March, 2012 has been rejected.
(2.) LEARNED counsel for the revisionist submits that the court has passed the order erroneously and illegally without appreciating the legal aspect of the matter. Learned counsel for the applicant revisionist further submits that admittedly, the accused applicant is a Government Servant and it is alleged that it is also obvious from the perusal of the order passed by the learned lower court that he acted illegally in the discharge of his official duty. So far as the question of sanction to prosecute, the learned lower court has merely observed in his order that on 21.4.2004 the cognizance has already been taken and the charge-sheet against the accused person has been submitted in the court and the writ petition of Smt. Damyanti vs. state of U.P. & others has been dismissed to quash the F.I.R. on 3rd September, 2011 by the court and the learned lower court has been directed to expedite the hearing of the case. Learned lower court has further observed that it is note-worthy that cognizance in the matter has already been taken and process in the shape of non-bailable-warrant has been issued against the accused person and further learned lower court has observed that the objections taken by the applicant revisionist in the application shall be looked into at the time of framing of charge and hence he rejected the application. Learned counsel for the applicant revisionist has referred to a ruling reported in 2001 SCC (Cri) 18 in the case of Abdul Wahab Ansari vs. State of Bihar and another, wherein Apex Court has held that before taking cognizance of the offence, "plea that sanction was required to be obtained under Section 197 Cr.P.C. can be raised at any stage of the proceedings and it need not be raised only when court reaches the stage or framing charge". Thus, it is clear from the provisions under section 197 Cr.P.C. prior to taking cognizance, previous sanction is must. Apex court ruling is also supports the same contention. Learned A.G.A. as well as learned counsel for the opposite party also submitted their argument. The contention of the learned A.G.A. is that act is not in the discharge of official duty. Learned counsel for the opposite party submits that in case, the sanction has not been duly granted after application for sanction moved within three months then it shall be deemed to have been granted by the lapse of time of three months. After hearing all the parties on the relevant point in question to be considered in the matter is whether prior to taking cognizance of the case. The sanction to prosecute a public servant is an essential ingredient for prosecuting further criminal proceeding under the criminal law and in this regard, it will be expedient to go through the provisions as enunciated under section 197 Cr.P.C. which lays down as follows : " 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 official duty, no Court shall take cognizance of such offence except with the previous sanction-" Thus, the provisions of section 197 Cr.P.C. clearly provide that cognizance shall not be taken by any court against Government Servant, of any offence having been committed or purporting to have been committed in the discharge of official duty except with the previous sanction. The word 'previous sanction' is to be taken into consideration as also the word 'cognizance' is to be taken into consideration and learned Magistrate under the scheme of Cr.P.C. can take cognizance on a police report and on a complaint or on his own motion and from report of any other person. The word 'cognizance' thus indicates that he applies his mind and starts to proceed with the matter which can be termed to be cognizance having been taken under Section 197 Cr.P.C. thus clearly lays down that previous sanction is the essential ingredient to be taken into consideration prior to taking cognizance.
(3.) IN this regard, the ruling reported in (2012) 1 SCC (Cri) in the case of R.R. Chari v. State of U.P., wherein it has been held that " What is 'taking cognizance' has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,-proceeding under Section 200, and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind e.g. ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." In this regard, the ruling reported in AIR 2004 SC 2179 in the Case of State of Orissa and others vs. Ganesh Chandra Jew in para-7, 10 and 11 of the said ruling, wherein it has been held that: "The pivotal issue i.e. applicability of section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and another (AIR 1988 SC 257), this court while emphasising on the balance between protection to the officers and the protection to the citizens observed as follows :- " It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of a duties, and whether the public servant has exceeded his limit. It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in discharge of the official duties then the trial may have to be stayed unless sanction is obtained". "Use of the words 'no' and 'shall' make it abundantly clear that the bar on exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court,therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. " Such being the nature of the provision the question is how should the expression 'any offence alleged to have been committed by him while acting and purporting to act in the discharge of his official duty', be understood? What does it mean? 'official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and others v. M.S. Kochar (1979(4)SCC177, it was held : "The words 'any offence alleged to have been committed by him while acting and purporting to act in the discharge of his official duty' employed in section 197 (1) of the Code, are capable of narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for,'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence,committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which in entitled to the protection of section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and said provision". "Use of the expression' official duty' implies that the act or omission must have been done by the public servant in the course of his public service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty". ;