Court No. - 1
Case :- CRIMINAL REVISION No. - 2380 of 2017 Revisionist :- Dr. Akhilesh Kumar Chaudhary Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Swati Agrawal,Sameer Jain Counsel for Opposite Party :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Sameer Jain, learned counsel for the revisionist, Sri Pawan Shukla, brief holder for the State and perused the material available on record.
By means of this revision, the revisionist has invoked inherent jurisdiction of this Court with a prayer to set aside the judgement and order dated 01.07.2017 passed by Additional Session Judge, Court No. 05, Firozabad in Session Trial No. 248 of 2015 (State Vs. Rakesh Diwaker and others), under Sections 409, 420 I.P.C. and Section 13(1) C of Prevention of Corruption Act, 1988, Police Station North, District Firozabad.
Learned counsel for the revisionist submitted that the revisionist had filed Criminal Misc. Application u/s 482 Cr.P.C. No. 6916 of 2015 (Dr. Akhilesh Kumar Chaudhary Vs. State of U.P.) which was dismissed by this Court vide order dated 4.4.2016. Against this order, revisionist had moved discharge application before Additional District and Sessions Judge, Court No. 5 on 17.06.2017 and the same was also dismissed by passing the impugned order dated 01.07.2017. He next submitted that the co-accused, Rakesh Diwakar had challenged the charge-sheet no. 107 dated 3.2.2015 along with the order taking cognizance No. 248 of 2015 dated 11.2.2015 passed by District and Sessions Judge/Special Judge, Firozabad by way of filing Criminal Misc. Application u/s 482 Cr.P.C. No. 7087 of 2015 which was dismissed by co-ordinate Bench of this Court vide order dated 10.3.2016.
He further submits that the question of sanction u/s 197 Cr.P.C. was required to be decided by the trial court while considering the application moved on behalf of the revisionist u/s 239 Cr.P.C. but the same was not considered by the trial court and discharge application was accordingly rejected which is illegal and the impugned order suffers from manifest error of law as no offence is disclosed against the revisionist. He lastly submits that the revisionist who is an old person, has retired from the service and suffering from various old age ailments.
On the other hand, learned AGA has opposed the prayer for quashing of the impugned order and submitted that the discharge application which was moved on behalf of the revisionist before the trial court, was not at all maintainable. The petitioner has not yet surrendered before the competent court and obtained bail in the present matter. Moreover, the impugned order passed by the trial court does not suffer from any illegality, therefore the revision being devoid of merit and is liable to be dismissed.
Considering the facts and circumstances of the case and after perusal of the record, we find that the petitioner has retired from service but has not yet surrendered before the court concerned and obtained bail in the present matter and his application u/s 482 Cr.P.C. has been dismissed giving liberty to the applicant to apply for discharge as was ordered by the co-ordinate Bench of this Court in the case of co-accused, Rakesh Diwaker in Criminal Misc. Application u/s 482 Cr.P.C. No. 7087 of 2015 which was dismissed vide order dated 10.3.2016. However, it appears that no order of this Court in both the petitions filed by the applicant as well as the co-accused, Rakesh Diwaker that the petitioner who was given liberty to file discharge application u/s 239 Cr.P.C. for claiming the same without surrendering before the court concerned and obtained bail in the present case.
Counsel for the petitioner has vehemently submitted before us that the Court cannot take cognizance of the case without previous sanction of the State Government as required under Section 197 Cr.P.C. which is a condition precedent as has been laid down in the aforesaid judgments.
The issue with regard to the obtaining of previous sanction qua a person who had been a public servant at the time of commissioning of the alleged offence, in view of the amended provisions of Section 197 Cr.P.C., has been a subject matter of consideration in detail by the Apex Court in the case of Prakash Singh Badal and another Vs. State of Punjab and others, 2007 (1) SCC Pg. 1. The Apex Court has specifically held that subsequent to the amendments in Section 197 Cr.P.C., previous sanction would be required only if the person is a public servant and had not demitted the office.
The Apex Court has gone on to explain that not all acts/offences of public servant may require such previous sanction. Such sanction is required only if the court finds that the acts and the official duty are so interrelated that no one can postulate reasonably that it was done by the accused except in the performance of official duty, though possibly in excess of the needs and requirement of the situation. The Apex Court has further explained that the question of sanction under Section 197 Cr.P.C. is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein.
The question may arise at any stage of the proceedings and similarly the question whether sanction is necessary or not may have to be determined from stage to stage.
Having regard to the laws so explained by the Apex Court in the case of Prakash Singh Badal (supra), it becomes necessary for the court concerned to examine as to whether the act/offence alleged are so interrelated with the performance of the official duty that it can be termed as an act for discharge of official duty or an act performed in purported exercise of official duty. Only when such question is determined that the issue of previous sanction would arise.
From the facts of the case, we find that there are issues/material facts which need to be examined by the trial court itself at the first instance for coming to a conclusion as to whether the acts alleged against the applicant can be termed to be one performed in discharge of his official duties or acts in purported exercise of official duties or not."
In view of above, we are of the view that the impugned order does not suffer any illegality, infirmity or jurisdictional error and is based upon relevant considerations and supported by cogent reasons, hence requires no interference by this Court.
With the aforesaid observation, the revision stands disposed of.
(Dinesh Kumar Singh-I,J.) (Ramesh Sinha,J.) Order Date :- 30.4.2018 Siddhant Sahu