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Judgment
N.K. Gupta, J.—The applicants have preferred the present revision against the order dated 21.5.2004 passed by the learned 4th Additional Sessions Judge, Hoshangabad in Criminal Revision No. 143/2001 whereby the order dated 20.10.2001 passed by the JMFC Itarsi was set aside in which the complaint was dismissed u/s 203 of Cr.P.C. and the matter was remanded back for reconsideration. The prosecution case, in short, is that the respondent No. 1 had lodged a complaint against the applicants that being the office bearers of the Municipality, Itarsi they gave a sum of Rs. 1,18,685/- to a contractor Kamalnarayan Saini for digging jet pump wells and an information was given to the Legislative Assembly of the Madhya Pradesh that in Ward No. 15, 16, 24 and 30 digging of jet pump well was being done, however no jet pump well was dug in those wards, and therefore a complaint was filed by the respondent No. 1 that the applicants have committed the offence under Sections 406, 409, 420, 468, 477, 34 of IPC.
The learned JMFC Itarsi after considering the prosecution evidence under Sections 200 and 202 of Cr.P.C. found that no sanction was received u/s 197 of Cr.P.C. and therefore the case could not be registered. Consequently, the complaint was dismissed u/s 203 of Cr.P.C.
On filing a revision by the respondent No. 1, the learned 4th Additional Sessions Judge, Hoshangabad vide order dated 21.5.2004 remanded the case with the pretext that the objection u/s 197 of Cr.P.C. shall be considered when it is raised by the accused persons after their presence and it cannot be considered initially.
After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, the contention raised by the learned counsel for the applicants appears to be correct. The learned counsel for the applicants has placed his reliance on the various judgments and orders of Hon''ble the Apex Court in the case of Suresh Kumar Bhikamchand Jain Vs. Pandey Ajay Bhushan and Others, , Mohd. Hadi Raja Vs. State of Bihar and Another, and in the case of State of Bihar Vs. Kamla Prasad Singh and Others, . By perusal of the aforesaid orders and judgments of Hon''ble the Apex Court, it is apparent that no prosecution could be initiated against the applicants without any sanction u/s 197 of Cr.P.C. It is alleged that they committed some crime in the course of their public duty, and therefore a sanction u/s 197 of Cr.P.C. was required.
So far as consideration of aforesaid point is concerned, if any complaint which is filed by the complainant appears to be not fit for registration due to any reason, then that reason can be considered by the magisterial court at the time of registration of the complaint. For example, if a complaint is moved against a magistrate, who has protected against the prosecution, then the magisterial court can consider such a provision at the time of registration of the complaint. In the present case, it was apparent that the trial Court could not proceed unless sanction u/s 197 of Cr.P.C. is received. Hence it was necessary for the magisterial court to consider such a point at the time of registration of the complaint otherwise if complaint is registered and thereafter it is required to be dismissed because no sanction was received for prosecuting the complaint, then such order cannot be passed by the magistrate himself, because he did not possess the right of review of his own order.
Under such circumstances, the learned Additional Sessions Judge took an incorrect view in remanding the case. The complaint cannot be prosecuted in absence of sanction u/s 197 of Cr.P.C., and therefore the trial Court has rightly dismissed the complaint u/s 203 of Cr.P.C.
On the basis of the aforesaid discussion, the present revision filed by the applicants can be accepted. Consequently, it is hereby accepted. The order dated 21.5.2004 passed by the learned 4th Additional Sessions Judge, Hoshangabad is hereby set aside and the order passed by the learned JMFC Itarsi is hereby maintained with the effect that the complaint filed by the respondent No. 1 against the applicants is dismissed u/s 203 of Cr.P.C. in want of prosecution sanction u/s 197 of Cr.P.C. A copy of this order be sent to both the courts below for information and compliance, if any.