Case Note & Summary
The State of Maharashtra, through A.R. Mulik, a Sub-Inspector in the Excise Department, filed a writ petition challenging the order dated 09.10.2002 passed by the Judicial Magistrate First Class, Bhor, rejecting the application for recalling the order of issuance of process in C.C. No. 744 of 2001, and the order dated 26.12.2003 passed by the 7th Additional District Judge, Pune, in Criminal Revision Application No. 618 of 2002. The respondent, Tanaji Shankarrao Jagtap, had filed a private complaint against the petitioner alleging offences under Sections 323, 504, and 506 of the Indian Penal Code, 1860, arising from an incident on 25.09.2001. The petitioner contended that the complaint was false and filed in retaliation for a criminal case registered against the respondent under Sections 332 and 353 IPC. The petitioner, being a public servant, argued that the Magistrate could not take cognizance and issue process without prior sanction under Section 197 of the Code of Criminal Procedure, 1973. The Magistrate rejected the application for recall, and the revisional court dismissed the revision. The High Court allowed the petition, holding that the acts alleged were in discharge of official duty, and sanction under Section 197 CrPC was mandatory. The orders of the Magistrate and the revisional court were quashed, and the complaint was dismissed.
Headnote
A) Criminal Procedure Code - Sanction for Prosecution of Public Servant - Section 197 CrPC - Mandatory Sanction - The court held that for prosecution of a public servant for acts done in discharge of official duty, prior sanction under Section 197 CrPC is mandatory. Issuance of process without such sanction is illegal and the order rejecting recall of process is unsustainable. (Paras 5-6) B) Criminal Procedure Code - Recall of Process - Section 204 CrPC - Abuse of Process - The court held that where process is issued without sanction under Section 197 CrPC, the order is without jurisdiction and amounts to abuse of process of court. The application for recall of process ought to have been allowed. (Paras 5-6)
Issue of Consideration
Whether the issuance of process against a public servant without prior sanction under Section 197 of the Code of Criminal Procedure, 1973 is valid and whether the order rejecting the application for recall of process is sustainable.
Final Decision
The High Court allowed the writ petition, quashed the order dated 09.10.2002 passed by the Judicial Magistrate First Class, Bhor, and the order dated 26.12.2003 passed by the 7th Additional District Judge, Pune. The complaint in C.C. No. 744 of 2001 was dismissed.
Law Points
- Sanction under Section 197 CrPC is mandatory for prosecution of public servant for acts done in discharge of official duty
- Issuance of process without sanction is illegal and liable to be recalled
