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Mukanchand Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 2213 of 1970
Judge
Reported in1971WLN616
AppellantMukanchand
RespondentThe State of Rajasthan and ors.
DispositionPetition allowed
Cases Referred and Ranchhod Zina v. Patnakar and Anr. A.I.R.
Excerpt:
.....227 and criminal procedure code--section 197--sanction to prosecute a public servant granted by state government--whether it can be withdrawn.;in my opinion the appropriate government having once exhausted its powers under section 207, cr.p.c. cannot invoke the provision of section 21 of the general clauses act to withdraw the sanction, as the government does not enjoy any such powers under the specific provisions of any law. in this view of the matter the order impugned is without jurisdiction and cannot, therefore, be sustained. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have..........nos. 4 and 5, be quashed.2. this writ petition raises an important question of law whether state government is competent to withdraw the sanction once accorded by it under section 197 of the code of criminal procedure to prosecute a public servant.3. the facts giving rise to this petition in a nut shell are as follows.4. respondent no. 4 shri bahadurisingh was the sarpanch of village ranideshipura, while respondent no. 5 magna was the panch of that panchayat a notice was issued by the gram panchayat, ranideshipura to the petitioner along with 8 other residents of that village directing them to remove the unauthorised construction of chabutaries within a period of seven days from the date of the date of the service of the notice this notice was served on the petitioner on 17th.....
Judgment:

V.P. Tyagi, J.

1. Petitioner Makanchand has filed this writ petition under Article 226 of the Constitution praying that by issuing an appropriate writ order or direction the order of the Government dated 21st March, 1970, canceling the sanction accorded on 19th January, 1970, to prosecute the respondents Nos. 4 and 5, be quashed.

2. This writ petition raises an important question of law whether State Government is competent to withdraw the sanction once accorded by it under Section 197 of the Code of Criminal Procedure to prosecute a public servant.

3. The facts giving rise to this petition in a nut shell are as follows.

4. Respondent No. 4 Shri Bahadurisingh was the Sarpanch of village Ranideshipura, while respondent No. 5 Magna was the Panch of that Panchayat A notice was issued by the Gram Panchayat, Ranideshipura to the petitioner along with 8 other residents of that village directing them to remove the unauthorised construction of Chabutaries within a period of seven days from the date of the date of the service of the notice This notice was served on the petitioner on 17th April, 1967 It is alleged that the petitioner filed an appeal against the said notice in the Panchayat Samiti, Siwana and that body granted stay order on the 20th April, 1967 According to the averments made in the writ petitioner took the copy of the stay order issued by the Panchayat Samiti, Siwana, to respondent No. 4 Shri Bahadursingh, but he refused to accept that copy of the stay order and stated that he would receive it after the chabutaries were removed. It is said that on the 24th April, 1967, when clear seven days were not completed, Shri Bahadursingh came to the Panchayat office and decided to get the Chabutaries demolished. When the petitioners came to know of this intention of respondent No. 4 he again went to him and brought to his notice the stay order passed by the Panchayat Samiti, but he refused to take any notice thereof and with the help of respondent No. 5 Shri Magna demolished the Chabutaries despite the repeated protest made by the owners of those Chabutaries. The petitioner, when he was convinced that the respondent No. 4 was bent upon to harass the petitioner by illegally demolishing the Chabutaries, went to the Additional Superintendent of Police, Barmer, for help, but before any police help could reach the village the Chabutaries were removed.

5. Thereupon the first information report was lodged by the petitioner with the Superintendent of Police, Barmer, alleging that the respondents Nos. 4 and 5 had committed an offence under Sections 147, 427 and 447, I.P.C. Since the police could not investigate the offence committed by the Sarpanch and Panch without the sanction of the State Government, the matter was moved to the District Magistrate Barmer, by the police to obtain the sanction of the State Government. On the request of the District Magistrate the State Government accorded sanction to prosecute the respondents Nos. 4 and 5. This order of sanction is dated 19th January, 1970 and it has been marked as Ex.4.

6. The allegation of the petitioner is that respondent No. 4 Shri Bahadursingh is an influential man and he happened, to be a friend of relations of the Deputy Minister and, therefore, that influence was used by the respondent Shri Bahadursingh and got another order of the State Government dated 21st March, 1970 (Ex.5) cancelling the sanction accorded by it (State Government) on 19th January 1970. This order of the Government has been impugned by the petitioner inter alia on the ground that the State Government having once issued a sanction to prosecute a public servant, cannot withdraw that sanction and that the impugned order passed by the State Government is not a bona fide order and, therefore, he has prayed that the impugned order may be quashed.

7. The State Government has filed the reply and therein it has been stated that after the sanction was accorded the Panchayat Samiti dismissed the appeal filed by the petitioner and it was held that by a constructing the chabutari infront of the 'Upasara' the Jains of the village have encroached upon the Panchayat land and, therefore, the order of the Panchayat removing the Chabutaries within seven days was upheld and the Panchayat Samiti, while disposing of the appeal, was of opinion that Sarpanch Bahadursingh and Panch Magna did not commit any illegality when they removed the Chabuttries of the petitioner and 8 others persons When this judgment was passed by the Panchayat Samiti the Government reconsidered the matter and having felt that the order of the Panchayat removing the chabutaris within 7 days, was upheld by the Panchayat Samiti it thought advisable to withdraw the sanction to prosecute the respondents Nos. 4 and 5 On these facts it is averred that it was a bonafide exercise of the jurisdiction that the sanction accorded was withdrawn by the State Government.

8. Learned Counsel appearing on behalf of the petitioner, however, did not press the point of the malafide on the part of the State Government. The only question that was canvassed before me was whether the State Government having exhausted its power under Section 197, Cr.P.C., by according sanction to prosecute public servant, could withdraw it when no such specific powers are given by the law to withdraw the sanction once accorded?

9. Every citizen has a right to prosecute a person or a body of persons by whom he has been injured, when such injury gives rise to an offence. This right of prosecution is a common right which can only be limited by special legislation Section 197, Cr.P.C., puts a rider on the right of a citizen to prosecute a public servant who has caused injury to him. This safeguard has, however, been provided by Section 197. Cr.P.C. only for the public servant. The object of the section is to guard against vexatious proceedings against public servants and to secure the well-considered opinion of a superior authority before a prosecution is a launched against them. Effect of Section 197 Cr. P.C, therefore, is that a Court of law cannot take congizance of a complaint against a public servant unless a ban created under Section 197, Cr.P.C., is removed by the Government by according sanction to prosecute such a public servant. When once the ban is removed the court assumes jurisdiction to proceed with the prosecution of a public servant The scheme of Section 197, Cr P.C, clearly shows that the ban so created, if removed, hen there is no hurdle in the way of a competent court to take cognizance of the offence alleged to have been committed by a public servant. After the sanction under Section 197, Cr.P.C., is given by an appropriate Government the right of a citizen to launch criminal proceeding against a public servant is revived to him and it cannot be taken away unless law specifically empowers the appropriate Government to extinguish it by revoking or withdraw the sanction once accorded by it. It may be mentioned that the courts have attached due importance to the act of the appropriate' Government in according sanction and have laid down that sanction shall be given after applying its minds to the facts and circumstances of each case leading to the commission of the offence which the prosecution wants to take to the criminal courts and therefore, certain amount of sanctity shall have to be attached to it. The law does not envisage that the appropriate Government, while giving sanction, shall act in a cursory manner and if once sanction is accorded it will be at liberty to change its mind by giving a second thought to that matter.

10. It is admitted by learned Counsel for the parties that there is no such specific provision in the Code of Criminal Procedure which empowers the appropriate Government to review its order granting sanction. Learned Deputy Government Advocate and Mr. Shrikishanmal Lodha, appearing on behalf of respondent No. 4. however, relied on the provisions of Section 21 of the General Clauses Act, 1897, which confer powers on the appropriate Government to add, to amend, vary or rescind the orders issued by the appropriate Government and according to them it applies to sanction given by the Government under Section 197, Cr.P.C., to prosecute a public servant. They referred in this connection to various judgments of different High Courts viz. in P. Raman Nair v. The State A.I.R. 1957 Travancore & Cochin 220, Shri Chand Karan Sarda v. The State of Ajmer A.I.R. 1950 Ajmer 57, Durga Prasad v. State of Uttar Pradesh : AIR1952All959 and Ranchhod Zina v. Patnakar and Anr. A.I.R. 1966 Guj. 243.

11. Section 21 of the General Clauses Act embodies in itself a rule of construction which should be appealed if the construction cannot be arrived at or determined with reference to the context or subject matter of a particular statute. There is no doubt that the act of according sanction is an administrative act of the Government where it is not necessary for the Government to send for the person against whom the order is to be passed or to call for his explanation before the final order is issued by the Government, but 'hat does not necessarily bestow the Government with a power to withdraw or amend the sanction once accorded by it. When the appropriate Government acts under Section 197, Cr.P.C., and accords sanction, then the effect of that order is to receive the right of an injured person to prosecution public servant, which he could not otherwise do because of the provisions of Section 197, Cr.P.C. The order sanctioning the prosecution under Section 197, Cr.P.C., also confers jurisdiction on a Court to take cognizance of an offence alleged to have been committed by a public servant If the appropriate Government by applying Section 21 of the General Clauses Act is permitted to modify, vary or rescind its order under Section 197,Cr PC. then it would definitely confer a power on the State Government to interfere with the jurisdiction of a competent criminal Court, which it had acquired because of the removal of ban imposed by Section 197. Cr.P.C. The withdrawal of sanction would also take away common right of a citizen to prosecute a public servant, who has caused injury to him by committing an offence. The authorities cited by learned Counsel for respondent No. 4, in my opinion, have no bearing on the question that has been posed by the circumstances of this case for the determination of the court. Those authorities deal with the circumstances where actually an administrative order passed by the State Government was either modified, varied or rescinded not affecting in any manner the jurisdiction of a criminal court or a valuable right of a citizen which he enjoyed on account of the removal of ban on the right by according sanction under Section 197, Cr.P.C. The rulings cited by Mr. Lodha, therefore, have hardly any bearing on the circum stances of the case. In my opinion the appropriate Government having once exhausted its powers under Section 197, Cr.P.C., cannot invoke the provision of Section 21 of the General Clauses Act to withdraw the sanction, as the Government does not enjoy such powers under the specific provision of any such powers under the specific provisions of any law. In this view of the matter the order impugned is without jurisdiction and cannot, therefore be sustained.

12. The writ petition is, allowed and the order passed by the State Government on 21st March, 1970 is hereby quashed. No order as to costs.


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