bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 759 OF 2007 PETITION NO. 759 OF 2007 PETITION NO. 759 OF 2007 1. Ashok Mahadev Desai 2. Keshav Shengale ... Petitioners v/s 1. Haseen Ahmed Qureshi 2. State of Maharashtra ... Respondents Mr.Raja Thakare for the petitioners. Mr.M.K.Kocharekar for the respondent No.1. Mr.D.P.Adsule, A.P.P. for the respondent No.2 State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 20TH JUNE, 2008 20TH JUNE, 2008 20TH JUNE, 2008 P.C. P.C. P.C.: 1. The petitioners have approached this Court in its writ jurisdiction contending that the issuance of process against them on 18.2.2006 is illegal. Petitioner No.1, at the relevant time, was a Senior Police Inspector and is now an Assistant Commissioner of Police. Petitioner No.2 was an Assistant Police Inspector at the relevant time at Pydhoni Police Station. The allegations against the petitioners are that they have assaulted respondent No.1 who is physically challenged and had thereby committed several 2 offences punishable under Sections 420, 467, 468, 406, 323, 324, 325, 506-II(2) read with Sections 114 and 34 of the Indian Penal Code. 2. It is submitted on behalf of the petitioners that the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, has erred in issuing process in respect of the offences punishable under Sections 323 and 325 of the Indian Penal Code. According to the learned advocate appearing for the petitioners, it was necessary to obtain sanction under Section 197 of the Cr.P.C. before prosecuting a public servant. He places reliance on the judgments in the cases of (1) Subhash Manmothe v/s State of Maharashtra reported in 2007 Cri.L.J. 537; (2) Centre of Public Interest Litigation & anr. v/s Union of India & anr., reported in 2006 All.M.R.(Cri.)271 (SC); (3) Jayasingh v/s K.K.Velautham & anr., reported in (2006) 9 SCC 414; (4) Sankaran Moitra v/s Sadhana Das & anr., reported in (2006) 2 SCC 358; (5) Rakesh Kumar Mishra v/s State and anr., reported in (2006) I SCC (Cr.) 432; (6) State of Karnataka v/s Nagarajaswami, reported in (2006) 1 SCC (Cr.) 47; (7) K. Kalimutthu v/s State, reported in (2005) 4 SCC 512; (8) Ashok Meheta v/s Ram Ashray Singh, reported in (2006) SCC (CR.) 530; (9) State of Orissa & ors. v/s Ganesh Chandra Jew, reported in 2004 Cri.L. 2011; (10) 3 Rizwan Ahmed Javed Shaikh v/s Jammal Patel, reported in 2001 All MR (Cri) 1512; (11) Suresh Kumar Bhikamchand Jain v/s Pande Ajay Bhushan & ors., reported in AIR 1998 SC 1524; (12) State of Maharashtra v/s Dr.Budhikota Subbarao (1993) 3 SCC 339; (13) Matajog Dobey v/s H.C.Bhari, reported in AIR 1956 SC 44. He also placed reliance on the judgment in the case of A.K.Sahdev & anr. v/s Ramesh Nanji Shah & anr., reported in 1998 (5) Bom.C.R. 738. According to the learned advocate for the petitioners, all the offences alleged against the petitioners form part of the same transaction and it would be necessary for the complainant to obtain sanction even for prosecuting the petitioners under Sections 323 and 325. He also submits that even if some excesses have been committed by the petitioners in the line of duty, they cannot be faulted nor can they be prosecuted without a sanction under Section 197 of the Cr.P.C. He submits that the facts in the present case do not indicate that the petitioners have committed any excesses or have assaulted the complainant in a manner which does not require sanction under Section 197 for prosecuting them. 3. On perusal of the medical certificate issued by the G.T.Hospital, the Magistrate has thought it fit to issue process under Sections 323 and 325 of the I.P.C. The 4 Sessions Court, in revision has concurred with this finding of the learned Magistrate. 4. In my view, the allegations in the complaint and the medical papers indicate that offences under Sections 323 and 325 have been committed prima facie. However, it is for the trial Court to decide whether these offences have been committed at all and whether they have been committed in the line of duty or otherwise. Taking a conspectus of the judgments cited, it is well settled that the protection afforded to a public servant under Section 197 does not extend to every act or admission done by him while in service but only to those acts which he performs in the discharge of his official duty. 5. In my view, there is no error committed by both the Courts below and hence no interference is called for by this Court in its writ jurisdiction. 6. The judgments cited by the learned advocate for the petitioners are based on the fact situation in each case. Given the circumstances in the present case, it is obvious that the orders passed by both the Courts below cannot be termed as erroneous. 5 7. Writ petition rejected.