Tek Chandra vs State of U.P.

Virendra Vikram Singh, J.—By moving the present application u/s 482 Cr.P.C., the applicant, constable Tek Chandra, has requested that chargesheet against him in Case Crime No. 312 of 2011, under Sections 223 and 224 I.P.C., Police Station Janakpuri, District Saharanpur, be quashed along with entire proceedings in Case Crime No. 358 of 2012 arising out of the above chargesheet. It has been argued that the applicant at the time of occurrence was a constable and, as such, he being a public servant, the prosecution against him without obtaining this sanction is legally not maintainable and, as such, the entire proceedings deserves to be quashed being violative of Section 197 Cr.P.C.

Heard learned counsel for the applicant and learned AGA for the State.

The only question to be decided is whether any person is immune from being prosecuted on the sole ground that he was public servant at the time when the offence is to have been committed by him.

Section 197 Cr.P.C. reads as follows:-

Prosecution of Judges and public servants-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government;

(Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.)

The prosecution version in brief is that the applicant, a police constable was instrumental in escape of two criminals who were detained in jail for several offences against them. It is not disputed that the applicant is a public servant but perusal of Section 197 Cr.P.C. shows that every public servant is not protected or immune from prosecution without sanction. Before availing the benefit of Section 197 Cr.P.C., the applicant will have to establish that he was a public servant of the category, who could not have been removed from his post without prior sanction of the State or Central Government. Apart from it, the applicant will also have to establish that the act done by him amounting to offence was the discharge of his official duty or, in any case, such act had some nexus with the discharge of his official duty.

Thus, whether the applicant was entitled to the protection from being prosecuted in view of Section 197 Cr.P.C., is a mixed question of law and fact which has to be decided by the trial court itself. Since, as argued, the prosecution has been launched without obtaining sanction, the prosecution will have to undertake the risk that if the case of the applicant is found to be covered under the provision of Section 197 Cr.P.C., as discussed above, the prosecution shall be bad in view of the provisions of Section 197 Cr.P.C.

In any case, on behalf of the applicant, no evidence has been filed to show that a constable is a post for which a person cannot be removed without prior sanction of the State Government.

Having considered the facts and circumstances of the case, the court do not find any ground to quash the proceedings, as requested. The application is hereby dismissed.