- (1.) G. B. Singh, J. This criminal revision is directed against the order, dated September 22, 1981 passed by the 1st Additional Sessions Judge, Bahraich, holding that the Magistrate cannot take cognizance against Vidya Sagar Singh, opposite party No. 2 and Nebu Lal, opposite party No. 3, without sanction under Section 197, Cr. P. C.
(2.) DWARIKA Prasad Sharma revisionist filed a complaint against Vidya Sagar Singh and Nebu Lal for offence under Sections 192, 196, 418, 164, 163, 120, 504, 463, 500 and 465, I. P. C. on February 27 1981 on the allegation that Vidya Sagar Singh is Executive Engineer in Asthai Khand No. 2, Sarvjanik Nirman Vibhag, Bahraich and Nabu Lal is an Accountant in that Khand. Five tenders were invited for payment of Bahraich, Barabanki, Banda road between 32 Kms. and 36 Kms. by the Executive Engineer of the aforesaid Khand on November 3, 1980 the revisionist submitted tenders in time and they were accepted but the Executive Engineer and the Accountant did not give any information to the complainant about the same though he had been going to the office very often and making enquiry about the result of his tenders. The complainant gave an application on January 8, 1981 to the Executive Engineer to inform him about the result of his tenders. When no reply was received he gave another application January 24, 1981 by way of reminder. The office of the Executive Engineer sent reply to complainant by a registered letter which was received by him on January 31, 1981 whereby he was intimated that the sum of Rs. 1. 5,000 deposited by him by way of security in connection with the aforesaid tenders stands forfeited. This order of forfeiture has been passed by the Executive Engineer and the Accountant maliciously. The reasons assigned forfeiture of the security is that the complainant did not put in appearance to sign the agreement within one week of the acceptance of the tenders, hence these tenders were cancelled and security was forfeited. It was also made known to the complainant through the aforesaid letter that anoiher registered letter had been sent to the complainant by registered post on December 19, 1980 about acceptance of the tenders but no such notice was in fact sent by the opposite parties. This was done only to cause wrongful loss to the complain ant by misusing the office which the accused opposite parties are holding. Opposite parties Nos. 1 and 2 entered into conspiracy. They manufactured evidence about sending notice and made incorrect entries about the same. Narain Sharma, son of the complainant, had filed a complaint against the predecessor-in-office of opposite party Vidya Sagar Singh and in order to take revenge opposite parties Nos. 2 and 3 conspired to cause wrongful loss to the complainant and wrongfully forfeited his security. The complainant also made a complaint against Vidya Sagar Singh to the Government whereupon the matter had been entrusted to the Vigilance Department. On account of these incidents opposite party No. 2 was harbouring ill-will and threatened the complainant that he would not get any Theka in future unless he made payment like other Thekedars. In connection with this complainant the statement of Dwarika Prasad Sharma complainant was recorded under Section 200, Cr. P. C. and he examin ed two witnesses Angnu Das P. W. 1 and Zahiruddin P. W. 2 in support of his statement. Zahiruddin is a formal witness. He simply produced certain documents summoned by the complainant. Angnu Das P. W. 1 stated about the threats said to have been extended by the Executive Engineer to the com plainant some time before the complaint. On the basis of this evidence learned Magistrate came to the conclusion that a prima facie has been made out against the opposite parties. He, therefore, summoned them for the afore said offences. When the opposite parties put in appearance they moved an appli cation on June 20, 19s1 alleging that they are public servants. Vidya Sagar Singh, accused No. 1, is an officer appointed by the State Government whereas Nebu Lal, accused No. 2, is an officer appointed by the Central Government and they cannot be removed from their office without the sanction of these Governments respectively. They are therefore, entitled to the protection of Section 197, Cr. P. C. Since ths complainant has not obtained such sanction the Magistrate could not take cognizance. The complainant filed objection to it pleading that the accused are not entitled to the protection of Section 197, Cr. P. C. because they entered into a criminal conspiracy, manufactured false evidence and comnitted illegal acts. It was farther pleaded by him th. it cogni zance has already been taken by ths Magistrate and the accused did not oom. nit the alleged offencss in tho discharg; other office duties, so no sanction is necessary. The learned Magistrate held that ths accused-opposite parties have not proved that they are public sjrvants and it will be just and proper to give an opportunity to the partis to lead evidence and the all the points raised shall be decided. He further held that at present the evidence available on record does not show that bar of Section 197, Cr. P. C. is applicable. Against this decision the accused-opposite parties filed revision which was allowed by the learned Additional Sessions Judge. He held that the accused-opposite parties are public servants and they are entitled to the protect ion of Section 197, Cr. P. C. Against this decision the present revision has been filed by Dwarika Prasad Sharma, complainant.
(3.) HEARD learned counsel for the revisionist, learned counsel for the State and learned counsel for the accused-opposite parties Nos. 2 and 3. The record of the lower court had also been summoned and was perused. It was argued by the learned counsel for the revisionist that the accused-opposite parties are not public servants. I do not find any force in this contention. The complaiuant himself described Vidya Sagar Singh as Executive Engineer, Public Works Department and Nebu Lal as Accountant of that department. In view of the description, the definition of 'public servant' given in Section 21 of the Indian Penal Code and the facts disclosed in the complaint there is no room for doubt that they are public servants. It is not less significant to mention that in the application under Section 197, Cr. P. C. the accused had emphatically alleged that they are public servants. One has been appointed by the State Government and the oilier by the Central Govern ment. In the objection to the application the complainant did not dispute the fact that the accused are public servants. He simply pleaded that they did not commit the act complained of in discharge of their official duties. Thus, it remained undisputed even in connection with the application under Section 197, Cr. P. C. that the accused Vidya Sagar Singh and Nebu Lal are public servants. It is, therefore, evident that Vidya Sagar Singh and Nebu Lal are public servants and the argument of the learned counsel for the revisionist to the contrary cannot be accepted.;