1 [PRECEDENT] 15/10/2014. Shri [ENTITY], Advocate for the petitioner. Shri [ENTITY], Advocate for the respondent.
Heard.
Admit.
Since Shri [ENTITY] entered appearance, no notice needs be issued to the respondent.
Return (if any) be filed within four weeks. Parties are heard on [CASE NUMBER] for stay. Shri [ENTITY] submits that the petitioner is a public servant. This Court in a [PRECEDENT], issued certain directions. Thereafter, a [CASE NUMBER] was filed, in which the Corporation/authorities were directed to comply with the order. In obedience of this court's order, the petitioner took action against the respondent in his official capacity in accordance with law. A FIR was also registered against the respondent. As a counter-blast, the respondent filed a private complaint. A police report (page 35) was filed by the concerned police station, which was not considered by the court below while passing the order dated 18.9.2014. It is submitted that the court below without application of mind has taken [PRECEDENT] cognizance by merely recording statements of three persons. The background of the matter has not been considered. In addition, it is submitted that the averments of complaint itself make it clear that the petitioner took action against the respondent in the capacity of a public servant and, therefore, in absence of sanction under [SECTION] [ACT], no cognizance could have been taken. In support of submissions, he relied on certain Supreme Court judgments.
Per Contra, Shri [ENTITY] submits that the order taking cognizance is revisable. By relying on 2012 SAR (Criminal) 267 ([ENTITY] vs. State of Haryana and another), it is submitted that the writ petition under [SECTION] is not maintainable. In addition, it is submitted that the petitioner can put forth his case before the court below because he is merely noticed by the court below. Lastly, it is submitted that the court below is empowered to drop the proceedings under [SECTION] [ACT] The petitioner may satisfy the court below about his stand. It is also submitted that the action of the petitioner is not in exercise of his official duties.
I have heard learned counsel for the parties at length.
[PRECEDENT] It is not in dispute that the petitioner is a public servant. [SECTION] [ACT] 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
(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."
Prima facie, the averments of the complaint shows that the alleged action taken on 18.3.2013 by the petitioner was in the capacity of a public servant. In this view of the matter, the sanction under [SECTION] [ACT] is mandatory. In [PRECEDENT], the Apex Court opined that the use of the words "no court shall take cognizance of such offence except without previous sanction" makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute [PRECEDENT] and complete. The very cognizance is barred. Thus, complaint cannot be taken notice of at all. The court is precluded from entertaining a complaint or taking of notice of it or exercising jurisdiction if it is in respect of a public servant, who is accused of an offence alleged to have been committed during discharge of his official duty. This judgment is followed by Apex Court in [PRECEDENT].
Thus, I find force in the argument of Shri [ENTITY] that without obtaining the sanction the order impugned is bad in law and prima facie without jurisdiction.
So far objection of Shri [ENTITY] based on [ENTITY] (supra) is concerned, a minute reading of this judgment shows that a criminal revision petition filed by the appellant was dismissed by the Punjab & Haryana High Court. This was put to test before the Supreme Court. The question before the Apex Court was whether criminal revision petition against the order of summoning was maintainable ? This question was answered in affirmative. This judgment is of no assistance to the other side in support of the submission that this petition is not [PRECEDENT] maintainable. In other words, in [ENTITY] (supra) it was not decided that a petition under [SECTION] is not maintainable.
In [PRECEDENT], the Apex Court opined that Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under [SECTION], the Court can certainly treat the petition one under [SECTION] or [SECTION] of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief [SECTION] of the Code of [SECTION] may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under [SECTION] and [SECTION] could well be treated under [SECTION] of the [ACT].
This is settled in law that jurisdiction under [SECTION] can be invoked despite availability of other [PRECEDENT] remedy if the order is shown to be without jurisdiction, passed by incompetent authority etc. Prima facie, the order is without jurisdiction because no sanction was taken under [SECTION] [ACT]
In view of aforesaid, a strong prima facie case is made out by the petitioner. Accordingly, the impugned order dated 18.9.2014 and further proceedings of the matter in which Annexure P-1 is passed, shall remain stayed till further orders.
List the matter after four weeks.
Certified copy as per rules.
([ENTITY]) (Yog) Judge.