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Chand Mal Oswal Vs. Shree Nath Bohra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1972CriLJ1400; 1972()WLN317
AppellantChand Mal Oswal
RespondentShree Nath Bohra
Excerpt:
rajasthan government servant's & pensioners conduct rules - rule 122--rules are non-statutory--whether a government servant should obtain permission before filing a complaint under section 500 i.p.c.;the rajasthan government servants' and pensioners' conduct rules, do not appear to have been male in exercise of any powers under any act or rules having the force of law, nor do they appear to have been made under article 309 of the constitution. these rules are thus non-statutory. on account of any breach thereof a government servant might render himself liable to disciplinary action, but the rules cannot be placed at par with any provision of law so as to create a legal bar against a court taking cognisance of an offence on a complaint by the government servant. - section 2(k), 2(1), 7..........of the government for filing the complaint. rule 22 of the aforesaid rules was referred to by the learned magistrate. it reads:a government servant may not without the previous sanction of the government have recourse to any court or to the press for the vindication of his public acts or character from defamatory attacks. in granting sanction to the recourse to a court the government will in each case decide whether the government servant shall institute the proceeding at his own expense and if so whether in the event of a decision in his favour the government shall reimburse him 'to the extent of the whole or any part of the costs. nothing in this rule will limit or otherwise affect the rights of any government servant to vindicate his private acts or character.2. the learned.....
Judgment:
ORDER

Kan Singh, J.

1. The learned Munsif Magistrate. Pali had dismissed a private complaint lodged by Shri Chandmal. Sales Tax Officer for an offence under Section 500 Indian Penal Code against Shri Shrinath Editor Toofan Mail' a local paper of Pali on the around that as required by the rajasthan Government Servants' and Pensioners' Conduct Rules the complainant had not taken the permission of the Government for filing the complaint. Rule 22 of the aforesaid Rules was referred to by the learned Magistrate. It reads:

A Government servant may not without the previous sanction of the Government have recourse to any court or to the press for the vindication of his public acts or character from defamatory attacks. In granting sanction to the recourse to a court the government will in each case decide whether the government servant shall institute the proceeding at his own expense and if so whether in the event of a decision in his favour the government shall reimburse him 'to the extent of the whole or any part of the costs. Nothing in this rule will limit or otherwise affect the rights of any government servant to vindicate his private acts or character.

2. The learned Magistrate held that the meaning of the first half of the above rule was that a Government servant cannot have recourse to the law courts, if the act complained of concerns the public duty of the Government servant and for it he shall have to seek the permission of the Government first. Con-seqtuently he dismissed the complaint as not maintainable.

3. The complainant went un In appeal to the learned Sessions Judge who has come to a contrary conclusion and has accordingly made a reference recommending that the order of the learned Magistrate dismissing the complaint be quashed. He held that the use of the word 'may' in Rule 22 was indicative of a discretion in the Government and if the legislature intended to make it mandatory it would have used the word 'shall' instead of the word 'may.'

4. I have considered the matter Before a complaint can be dismissed as not maintainable the court should be satisfied that the complaint is barred by any provision of law such provision may be contained either in the Criminal Procedure Code itself or in any other law. Regarding complaints of defamation the only condition prescribed under the Criminal Procedure Code is that the complaint shall be filed by the aggrieved person. This condition is amply satisfied in the present case. The next question is whether there is any other condition prescribed under some provision of law. I know of no such provision. I have looked into the Rajasthan Government Servants' and Pensioners' Conduct Rules on which reliance was placed by the learned Magistrate. These Rules do not apnpar to have been made in exercise of any powers under any Act or Rules havinsg the force of law nor do they appear to have been made under Article 309 of the Constitution. These Rules are thus non-statutory On account of any breach thereof a Government servant might render himself liable to disciplinary action but the Rules cannot be placed at par with any Drovision of law so as to create a legal bar against a court taking cognizance of an offence on a complaint by the Government servant.

5. In view of the consideration that is weighing with me, I need not enter into the discussion whether the word 'may' under the relevant Rules is directory or mandatory.

6. The result is that I accept the reference 'though for different reasons. and hereby quash the order of the learned Maeistrate dismissing the complaint. He shall proceed further in the matter according to law.


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