*THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY +Criminal Revision Case No.1612 of 2010 % 24-12-2010 Mamidi Venu Madhav … Petitioner Vs. $ Sri Ramakanth Reddy, Chief Secretary to Government of Andhra Pradesh and others … Respondents ! Counsel for the Petitioner : Mamidi Venu Madhav Party-in-person Counsel for the Respondents: < Gist: > Head Note: ? Cases referred: 1998-ALT (Crl.) 176 1993 (2) Crimes 102 AIR 2001 SUPREME COURT 2547 AIR 2002 SUPREME COURT 2861 (1993)3 SCC 339 1997(10)SCC 772 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.1612 of 2010 (Dated : 24-12-2010) Between: Mamidi Venu Madhav Nallakunta, Hyderabad …Petitioner A n d Sri Ramakanth Reddy, Chief Secretary, Government of A.P., and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.1612 of 2010 ORDER: Dismissal of complaint under Section 203 Cr.P.C filed by the petitioner herein is under challenge in this revision. 2. The petitioner filed complaint under Section 200 Cr.P.C against respondents 1 to 12 herein for the offences under Sections 277, 268, 425 of IPC and Section 23(3) read with Section 35(1)(2) of Walta Act, 2002 and under Sections 107, 116 of IPC read with 144(2) and 133 of Cr.P.C. 3. The averments, in brief, are:- Hussain Shavali constructed Tank Bund during 1562 A.D. It became a bridge joining Hyderabad and Secunderabad. It provided drinking water to Hyderabad city up to 1955. The total extent of lake was 1,356 acres and out of it 290 acres have been encroached and thereby, the total extent of tank bund has been reduced from 1,356 to 1,066 acres. Every year Ganesh Idols are being immersed in the tank during Ganesh Navaratri festival. The depth of the tank has been reduced from 65 feet to 40 feet. Around 30 thousand idols are being immersed during Ganesh Navaratri festival every year. Number of idols that are immersed is being increased from year to year. On account of immersion, not less than 500 lorries load wastages have been depositing in the tank. 7500 tones of plaster of paris, 200 tones of iron pieces, 75 tones of wooden planks and more than 10,000 litres of synthetic paints, coir etc are being immersed in the form of idols. Only 10 to 15% of debris have been removed from the lake. 4. The Central Government included Hussain Sagar in the list of National Lakes Protection Scheme. For purification of Hussain Sagar, State Government obtained Rs.320 crores loan from Japan Bank of International Cooperation (JBIC). The authorities are not taking proper steps for removal of the debris from the tank and therefore, they are liable for prosecution for the offences under Sections 277, 268, 455 IPC. 5. The learned Magistrate recorded the sworn statement of the complainant. After considering the sworn statement and the contents of the complaint, the learned Magistrate dismissed the complaint under Section 203 Cr.P.C., by order dated 18.6.2010, on the ground that the complaint is not maintainable for want of sanction as provided under Section 197 Cr.P.C. The said order is assailed in this revision. 6. Heard Mamidi Venu Madhav, petitioner-party-in-person, and perused the material brought on record. 7. The petitioner contends that once the learned Magistrate recorded the sworn statement of the complainant, it constitutes taking cognizance of the offences and in which case, dismissal of the complaint does not arise. In support of his contention, he placed reliance on the judgment of Karnataka High Court in Visva Cement Products v. Karnatka State Financial Corporation, Gadag[1]. In the cited case, the learned Magistrate recorded the sworn statement of the complainant and considered the material brought on record and took cognizance of the offence. The cited decision does not help the petitioner. What is held in the cited decision is that application of judicial mind before taking cognizance of the offence is essential. Para (2) of the cited judgment needs to be noted and it is thus:- “2. As far as the 1st contention of the petitioner that the Magistrate has not taken cognizance but proceeded to record the sworn statement and hence it is illegal, is unsustainable in view of the decisions rendered by their Lordships in AIR 1996 SC 204: (1994 CRi LJ 408) : AIR 1972 SC 2639: AIR 1976 SC 1672: (1976 CRi LJ 1361) AND ILR 1994 KANT 2991 : (1994 CRi LJ 3115), wherein it is held that cognizance is deemed to have been taken when the Magistrate applied his judicial mind for proceeding under S.200 and this position has been explained in the decisions referred to above. In this case, the Magistrate has recorded the sworn statement of the witnesses and after being satisfied he had directed to issue process to the accused persons. Under these circumstances I have no hesitation to hold that the Magistrate has taken cognizance in this case. Accordingly, the argument on this point is rejected”. 8. The issue that fell for consideration in the cited case is whether the Magistrate was required to apply his judicial mind before taking cognizance of the offence. Whereas coming to the facts of the case on hand, the learned Magistrate after considering the application and sworn statement, came to the conclusion that the complaint suffers from serious defect of want of sanction. Therefore, the proposition of law laid down in the cited case has no application to the facts of the case on hand. 9. The petitioner contends that sanction is not necessary before taking cognizance of the offence and therefore, the order impugned in the revision cannot be sustained and the same is liable to be set aside. In support of his contention, the petitioner placed reliance on the judgment Gujarat High Court in Prabhudas Badaji Pandav v. Faridmiya Hussainmiya Kadari[2] and the decisions of Supreme Court in P.K.Pradhan Vs. State of Sikkim[3] and Raj Kishore Roy v. Kamaleshwar Pandey[4]. In Prabhudas Pandav’s case (2nd supra), the Gujarat High Court held that the words employed in Section 197 Cr.P.C are capable of narrow as well as wide interpretation and the right approach to the import of these words lies between these two extremes. It is the quality of the act that is important if it falls within the scope and range of official duties. In P.K.Pradhan’s case (3rd supra), the Supreme Court held that the legislative mandate engrafted in Section 197(1) debarring a Court from taking cognizance of an offence except with the previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under S.197 , unless the act complained of is an offence, the only point for determination is whether it was committed in the discharge of official duty. In Raj Kishore Roy’s case ( 4 supra), it has been held that in cases where the accused acted in official duty or not and whether therefore sanction is necessary or not should be left open to be decided in the main judgment which may be delivered upon conclusion of trial. 10. Coming to the facts of the case on hand, there is no dispute that the respondents are public servants and the alleged omissions on the part of the respondents are only by virtue of their office. In State of Maharashtra V. Dr.Budhikota Subba Rao[5] and State through CBI Vs B.L.Verma and another[6], the Supreme Court held that bar under Section 197 Cr.P.C is mandatory where the acts have been done by the public servant in the course of his service or in the discharge of his duty. 11. Since the complainant questions omission of the respondents by virtue of their office and which omission according to him constitutes an offence, sanction as provided under Section 197 Cr.P.C to prosecute them is mandatory. Therefore, the trial Court is justified in dismissing the complaint for want of sanction. The order impugned in the revision does not suffer from any illegality or irregularity warranting interference by this Court in exercise of powers under Section 397 read with 401 Cr.P.C. 12. The Criminal Revision Case fails and the same is accordingly hereby dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.24-12-2010 Note:- L.R Copy to be marked (B/o) RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.1612 of 2010 (Dated : 24-12-2010) [1] 1998-ALT (Crl.) 176 [2] 1993(2) Crimes 102 [3] AIR 2001 SUPREME COURT 2547 [4] AIR 2002 SUPREME COURT 2861 [5] (1993)3 SCC 339 [6] 1997(10) SCC 772