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Kishorsingh Kisansingh Chungde Vs. State of Maharashtra and Ors. - (High Court of Bombay) (15 Nov 2022)

Previous sanction for prosecution of the public servant is necessary whether the act or omission for which the accused is charged, has a reasonable nexus with discharge of official duty

MANU/MH/3965/2022

Criminal

Present is an application under Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') seeking discharge. The applicant (accused No. 13) has initially applied to the learned Magistrate for discharge, however, the said application was rejected vide order. Being aggrieved, the applicant has filed criminal revision. However, it was dismissed vide order, which is impugned herein.

The applicant is a Government Auditor. He has been arraigned as accused No. 13 in Crime registered for the offence punishable under Sections 406, 409, 420, 120B, 166, 167, 217 and 218 read with Section 34 of the Indian Penal Code, 1860 (IPC). The prosecution was initiated at the instance of report lodged by one of the depositor.

Both the Courts below have held that the applicant has supported co-accused in their illegal activities by not filing the Police Report and therefore, the said cannot be termed to be within the discharge of his official duty. In case of Indra Devi Vs. State of Rajasthan and others, it has been ruled that the previous sanction for prosecution of the public servant is necessary whether the act or omission for which the accused is charged, has a reasonable nexus with discharge of official duty. The very purpose of Section 197 of the CrPC is to protect officer from unnecessary harassment when the act or omission is committed in discharge of official duty. The act of filing a Police Report is certainly a part of official duty of the Government Auditor. The term act includes "omission". There is no justification in saying that the alleged omission the on part of the applicant cannot be a part of his official duty. Therefore, the prosecution against the applicant on said sole count is not maintainable.

It is well settled that at the time of framing charge, it is permissible to sift the available material to limited extent to find out whether the case is made out to proceed further. The reply is totally silent to satisfy regarding existence of material even to make out a case of strong suspicion about commission of offence. Thus, the prosecution is not tenable for want of statutory sanction as well as in absence of sufficient material. The continuation of prosecution amounts to abuse of the process of Court. Both Courts' below erred in rejecting discharge application. Impugned order passed in Criminal Revision is quashed and set aside.Application allowed.

Tags : DISCHARGE   ENTITLEMENT   SANCTION  

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