Kallappa Appanna Bebade vs Dattatraya Ramchandra Shejal and others

Sahai, J.—By means of this appeal preferred under S. 378(4), Cr.P.C. the appellant (Orig. complainant) has impugned the judgment and order dated 3-3-1983 passed by the Judicial Magistrate, First Class, Kurundwad District Kolhapur, in C.C. No. 224/80, acquitting the respondent Nos. 1 and 2 for the offence punishable under S. 323 r/w. 34, IPC.

The gravemen of the allegation of the complainant Kallappa Appanna Bebade, as voiced in his complaint is that, he and his son Bharat while being prosecuted in a case under S. 302 r/w. 34, IPC, were physically assaulted by the respondent Nos. 1 and 2 who were police sub-Inspector and constable respectively during the investigation of the said case.

On receiving the said complaint, the predecessor of the Magistrate who passed the impugned order, recorded depositions of the complainant Kallappa Bebade and his son Bharat. Thereafter, process under S. 323 r/w. 34, IPC were issued against the respondent Nos. 1 and 2.

The respondent Nos. 1 and 2 appeared in the trial Court and pleaded not guilty. On the date of trial, i.e. 18-2-1983, their counsel submitted an application (Exhibit 41) stating therein that the said respondents were public servants and consequently, permission under S. 197 Cr.P.C. was a condition precedent for their prosecution. The said application was strenuously opposed by counsel for the original complainant.

The learned Judicial Magistrate, after hearing the rival contentions, through a well-reasoned judgment concluded that since the acts were performed by the respondent Nos. 1 and 2 in the discharge of their official duty, sanction for their prosecution was a condition precedent and since the same was not obtained, the proceedings against the respondent Nos. 1 and 2 are liable to be dropped. Accordingly, he acquitted them under S. 255 Cr.P.C.

The main grievance of Mr. Lele, learned counsel for the appellant is that the learned Magistrate erred in recording an order of acquittal under S. 255, Cr.P.C. because, the same could only have been recorded after the complainant had been afforded an opportunity of producing evidence under S. 254, Cr.P.C.

In order to appreciate Mr. Lele''s submission, it is necessary co peruse the provisions of S. 255, Cr.P.C. S. 255, Cr.P.C. reads thus :-

"255(1) : If the Magistrate, upon taking the evidence referred to in S. 254, and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty he shall record an order of acquittal."

(2) to (3).....

A perusal of S. 255, Cr.P.C. would show that the order of acquittal can only be recorded after the Magistrate has taken evidence referred to in S. 254, Cr.P.C.

In the above view of the matter, there is no escape that the learned Magistrate committed an error by acquitting the respondent Nos. 1 and 2, under S. 255, Cr.P.C.

The question which stares us and a very vexed one too, is whether on this technical flaw in the impugned order, should same be set aside and the matter be remanded to the trial court or in the larger interest of justice, this order be upheld.

There can be no quarrel with the proposition that sanction is a condition precedent for the prosecution of a public servant, for the offences committed by him in the discharge of his official duty as a public servant. There can further be no quarrel that the two respondents are public servants; respondent No. 1 is a Police Sub-Inspector and respondent No. 2 is a police constable. Again, there is no dispute that the learned Magistrate has concluded that they acted in the discharge of their official duty as public servants. This conclusion of his cannot be faulted as perverse.

In such a situation, without sanction, their prosecution could not have proceeded. As a matter of fact in view of the bar contained in S. 197 Cr.P.C. the Magistrate could not have even taken cognizance of the offence.

The Supreme Court in the case of R.P. Kapur Vs. The State of Punjab, has gone to the extent of holding that one of the instances wherein inherent powers can be exercised by this court under S. 561(A) Cr.P.C. (S. 482, Cr.P.C. is an identical provision) and the complaint or the FIR quashed is :-

(6).....

If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance furnish cases under this category.

Bearing in mind the over all facts and considerations like the impugned order was recorded nearly 14 years ago; that the offence is a petty one namely one under S. 323 r/w 34, IPC; and that respondents Nos. 1 and 2 committed this offence in the discharge of their official duty and the embargo imposed by S. 197, Cr.P.C. precludes the Magistrate from even taking cognizance of the offence without prior sanction the ends of justice in our judgment do not warrant our interference in spite of the aforesaid infirmity in the impugned order.

There are cases wherein it is proper and expedient in the interests of justice to give precedence to larger considerations, some of which we have detailed in the proceeding paragraph, instead of taking a hyper-technical view. The instant, in our view, is one of such case.

But, our observations contained in para 12 should not be construed to mean that (A) our non-interfering with the impugned order means that the same is in accordance with law, and (b) as a general rule, we would be interfering with orders of the type of impugned order. The truth is the very converse of it.

13-A. It is only where equity, justice, nature of the offence and the enormous time-lag between the commission of offence/passing of the impugned order per se warrants our interference would be interfere.

We cannot refrain ourselves from parting with this judgment without the observation that the learned Magistrate should have taken the trouble of reading the provisions contained in Ss. 255 and 254, Cr.P.C. before passing an order of acquittal under the former section.

In view of the peculiar facts of this case and the circumstances enumerated above, we uphold the impugned order and dismiss this appeal.

In case an application for a certified copy of this judgment is made, the same shall be issued on an expedited basis.

Appeal dismissed.