[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLN.NO.309 OF 2008 Shri.Hanumant Dinkar Arjun ..Applicant Vs. Shri.Suresh R.Andhare and Ors. ..Respondents ... Mr.M.J.Bhatt advocate for applicant Ms.P.P.Shinde A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JULY 15, 2008 DATE : JULY 15, 2008 DATE : JULY 15, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the applicant and the learned A.P.P. for the State. 2. The applicant-original complainant has preferred this application against the discharge of the Respondent accused. The applicant had lodged FIR with the police. The case of the complainant is that the respondent did not initially register the FIR but registered it as Accidental Death and Respondent did not conduct proper investigation in the matter. It is further the case of the complainant that the Respondent has caused evidence to disappear and infact, the Respondent had destroyed the evidence. Hence, private complaint [-2-] came to be filed by the applicant against the Respondent. As the Respondent was discharged in the said case, the present application has been preferred. The learned Sessions Judge has considered the matter at length and he has discharged the Respondent-accused. 3. One of the grounds for the learned Sessions Judge to discharge the Respondent is that the Respondent being Police Sub-Inspector was a public servant and no sanction had been granted to prosecute the Respondent. Mr.Bhatt submitted that Respondent has caused evidence to disappear and infact, the Respondent had destroyed the evidence which cannot be said to be part of the official duties of the Respondent and hence, sanction for prosecution was not necessary. 4. The learned advocate for the applicant has placed reliance on the decision of the Supreme Court in the case of S.K.Zutshi and Anr. V. Bimal Debnath and Anr. reported in 2004 All MR (Cri.)2846 (S.C.). In the said case, there was a complaint against personnel of Border Security Force alleging that illegal gratification was [-3-] demanded from complainant. On his refusal to pay, his shop was ransacked and goods taken away and the Supreme Court held that offence cannot be said to have been committed in discharge of official duty. Hence, sanction for prosecution was not necessary in this case. 5. To determine as to whether the act of the Respondent was in discharge of his official duties, useful reference may be made to the case in the matter of State of Orissa and others V. Ganesh Chhandra Jew, reported in AIR 2004 S.C. 2179, wherein "one safe and sure test in this regard would be to consider if the omission and negligence on the part of the public servant committing the act complained of, could have made him answerable for a charge of dereliction of his official duty, if the answer to question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection within the act complained of and the official duty of the public servant." Similar view is taken in the case of (1) Sankaran Moitra V. Sadhana Das and Anr. reported in 2006 AIR SCW 1695, (2) Rakeshkumar [-4-] Mishra V. State of Bihar and others reported in 2006(1) B.Cr.C. 301 (SC), (3) State of Orissa and others Vs. Ganesh Chhandra Jew, reported in AIR 2004 SC 2179 and (4) Rizwan Ahmed Javed Shaikh and others V. Jammal Patel and others reported in 2001(2) B.Cr.C. (SC) 648. In the decision of Sankaran Moitra (Supra) it is held by the Supreme Court that "the real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty, if the act complained of the same transaction in which the official duty was performed or purported to be performed, the public Officer would be protected." 6. Thus, ratio laid down in the said decisions clearly shows that as the accused was exercising his duty as a public servant and was acting in his official capacity and though it is alleged that there is dereliction of the duty. Section 197 of [-5-] the Code of Criminal Procedure is attracted and sanction is must. 7. In the case of Ramesh Mahadeo Sawant Vs. Daulatrao Lembe and another reported in 1998(5) Bom.C.R. 518, it is held therein that "what is barred by section 197 Cr.P.C. is the very initiation of the proceedings against a public servant without a previous sanction. Previous sanction occurring in section 197 Cr.P.C. clearly postulates that even before initiation of a criminal proceedings by a competent court of Criminal jurisdiction against a public servant, the sanction is mandatory. The court cannot even take cognizance without previous sanction. 8. In view of the above decisions, it is clear that both the acts of Respondent i.e. of not registering the FIR and not conducting proper investigation as well as destroying of evidence, would be covered and hence sanction would be necessary. Admittedly, no previous sanction has been granted in the present case. Hence, no case is made out for interference. [-6-] 9. Revision is rejected and is disposed of accordingly. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]