No report about service of notices upon opposite parties no. 1 to 3 is on record. But parcha has been filed on behalf of opposite parties which is kept at flag 'A'.
None is present on behalf of revisionist in the revised list.
Hence I heard learned A.G.A..
This revision has been preferred against the order dated 17.05.1990 passed by Sessions Judge, Jalaun at Orai allowing the criminal revision no. 165 of 1989 and setting aside the summoning order dated 21.10.1989 passed by C.J.M., Jalaun at Orai in criminal case no. 2737 of 1989.
Brief facts are that the revisionist filed a complaint against the opposite parties and Dr. H.C.L. Sharma as well as five unknown and unidentified employees of the Civil Hospital, Orai on 04.10.1989 in the court of Chief Judicial Magistrate, Jalaun at Orai under Sections 147, 149, 342, 323, 504, 506, 465, 469, 471 and 114 I.P.C. with the allegations that his son Puspendra Kumar was suffering from fever and was brought before the doctors in District Hospital, Orai at 08:00 A.M. on 14.09.1989. Dr. S.R. Agrawal was not available at his seat. The complainant contacted him in an apartment of the hospital, but he refused to attend the minor patient. He also abused the complainant and started going out of his room. The revisionist again requested opposite party no. 2 to attend his son but the doctor jolted him in a room in presence of the patients. The revisionist went to opposite party no. 1 to complain about the behaviour of opposite party no. 2 but all the opposite parties no. 1 to 3 coupled with Dr. H.C.L. Sharma and five unknown and unidentified employees of the Civil Hospital started hurling, abusing and assulting the revisionist. He was locked inside the room and was not permitted to go out. When telephonic message was sent to police, the revisionist was arrested and a case against him was registered.
Learned C.J.M. heard the complainant and vide order dated 21.10.1989 summoned the accused persons to face the trial. Feeling aggrieved, the opposite parties no. 1 to 3, preferred revision being criminal revison no. 165 of 1989 which was allowed on 17.05.1990 and summoning order dated 21.10.1989 was set aside.
I have perused the judgments of both the courts below.
It is well settled law that while summoning any person to face the trial, the only thing which is to be think as to whether there is sufficient ground to proceed.
In the present case the doctors and other persons were to be on duty when the occurrence took place. There is no doubt that if any person exceeds his rights, he cannot take defence that he was on official duty and he cannot be prosecuted in the present case. It is not disputed that opposite parties no. 1 to 3 were on official duty.
Section 197 Cr.P.C. reads as under:-
"197. 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.] [Explanation.- For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any office alleged to have been committed under Section 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376C, Section 376D or Section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
[(3A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.] [(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
The test lies in the fact whether the public servant, if challenged, can reasonably claim that what he does is in virtue of his office as has been laid down in AIR 1961 Gujarat page 57, (Chiman Bhai Khashi Bhai vs. Jashai).
The section applies to acts committed by the public servant under the cloak of his official position although those acts were not part of his duties and the offence must be so connected with the official act as to form part of the same sanction where the act of complaint was done in discharge of official duty and the offence was so connected with the official act as to form part of the same transaction. The mere fact that the Government servant exceeded in the discharge of his duty in any way shall not come in the way of the application of aforesaid provision. Where a Judge was charged with using defamatory language to a witness during a trial of a suit, it was held that the complaint could not be entertained by a Magistrate without sanction. The test is whether the public servant can reasonable claim that what has been done by him by virtue of his office.
I have found no illegality, impropriety and irregularity in the orders of courts below.
Accordingly the revision is dismissed.
Order Date :- 16.7.2014 sailesh