Section 197 crpc for government employee
Nikul H Patel
(Querist) 25 June 2013
This query is : Resolved
Dear Sir. I seek to know that is the Crpc 197 section is protect all the government employee (Talati ) who actually made offense like Making entry on false sale deed,Made entry without getting proper document (Without getting copy of Power of attorney on which sales deed made ).Re enter same false sales deed which are already remind by Dy collector and proceeding of remind entry under process in court and stay order on same entry of same sale deed in under efect at the time of re entry.taking bribe on duty,not giving intimation to the concern parties through 135D notice regarding new entry?
Kindly let me educate and give such judgment or reference which can help me to catch the guilty Talati in my case.
Regards
Nikul Patel
Nadeem Qureshi
(Expert) 25 June 2013
The Supreme Court has ruled that a public servant cannot be given the protection of sanction under Section 197 CrPC if he is facing allegations of indulging in criminal offences.
A bench comprising Justices Arijit Pasayat (since retired), D K Jain and Mukundakam Sharma, while allowing the appeal of the state of Uttar Pradesh against the acquittal of an officer, Paras Nath Singh, by the trial court as well as by Allahabad High Court, noted in its 12-page judgment that forgery, criminal conspiracy, cheating and taking gratification cannot form part of official discharge of duty by a public servant.
Speaking for the Bench, Justice Pasayat noted in the judgment, ‘If on the facts therefore, it is prima facie found that the act or omission, for which the accused was charged, had reasonable connection with discharge of his duty, then the act must be held as official in which applicability of Section 197 of the Code cannot be disputed.’ ‘A public servant, however, is not entitled to indulge in criminal activities,’ he said.
He added, ‘That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B IPC sanctioned under Section 197 of the code is a condition precedent for launching the prosecution, is equally fallacious.’ The apex court also noted, ‘It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences.
Want of sanction under Section 197 of the code is therefore no bar.’ However, another bench of the SC headed by Justice Altamas Kabir has held the prosecution of some senior police officers of Maharashtra under the Maharashtra Control of Organised Crime Act (MCOCA), on the ground that the accused cannot be prosecuted without prior sanction from the police officer in the rank of Additional Director General of Police.
The eight accused police officers were part of a raiding party that allegedly caught one Himmat Nanda accepting a bribe of Rs three lakhs on behalf of Singh.
The special investigating team was set up by the special judge under JCP (Crime) Meera Borvankar.
After the SC verdict, no proceedings can be continued against the persons named by Singh under MCOCA despite their alleged involvement in organised crime.
The Bombay High Court had directed the special MCOCA judge to consider the complaint made by Mumbai ASI Nitindra Singh on August 19 2004 against 14 persons including eight senior police and government officials and members of the Anti-Corruption Bureau.
Allowing the appeal of Maharashtra government, the apex court bench headed by Justice Kabir ruled that both in case of a private complaint and a police report, sanction from ADGP was a must in view of the provisions of MCOCA which would have an overriding affect over the provisions of the CrPC.
Nikul H Patel
(Querist) 26 June 2013
Thank you very much Rep. Nadeem Sir.
Raj Kumar Makkad
(Expert) 26 June 2013
Lapses in the normal duty of the office cannot be equated with the criminal offence and as such the criminal action cannot be initiated on that ground without obtaining prior sanction.
Nikul H Patel
(Querist) 28 June 2013
Resp. Rajkumar Sir. In my case the Talati has made entry in Hakpatrak even the stay order has been implies and was in effect while making reentry by Talati ( Stay order Dy collector ) and the same sales deed which was enter in Hakpatrak earlier and same challenged in court of Dy collector.
