1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION WRIT PETITION NO.2617 OF 2009 Arvind D. Ingale ...Petitioner. v. Vishwanath L. Pawar & Anr. ...Respondents. Mr.S.S.Salunkhe, adv. For the Petitioner. CORAM : J.H. BHATIA, J. DATED : JUNE 16, 2010 P.C. 1 Petitioner before this Court is a junior engineer working with Maharashtra State Electricity Distribution Company also known as Mahavitaran, which was previously known as Maharashtra State Electricity Board. A complaint was filed by the respondent no.1 under Section 353, 323, 504 and 506 of the I.P.C. against the petitioner in the Court of J.M.F.C., Karmala, District: Solapur. The learned Magistrate observed that there was nothing on record to show that the alleged offences were committed by the accused while discharging his official duty, therefore, he directed for verification of the statements of the complainant and the witnesses. Later on, process was issued against the accused. That order was challenged by the petitioner before the Sessions Court by filing revision application. That revision application was 2 dismissed. Hence, this petition. 2 The learned counsel for the petitioner contends that on 1.8.01 The learned Magistrate had observed that the complaint being against the public servant unless the sanction is accorded for prosecution under Section 197 of the Cr.P.C., no Court can take cognizance of offence and, therefore, complainant was directed to produce sanction order for the prosecution. The learned counsel contends that having passed that order once, Magistrate could not review and recall that order and could not hold that sanction was not required. For this, he relied upon Adalat Prasad v. Rooplal Jindal and Ors. (2004) 7 SCC 338 wherein the Supreme Court held that the Magistrate has no power to recall the process issued. In the present case by the first order dated 1.8.01, neither process was issued nor the complaint was rejected. Magistrate had only directed the complainant to produce sanction order. Later on, 4.12.2001, the learned Magistrate observed that after perusal of the record, he did not find that alleged offence was committed by the accused while discharging official duty, therefore, he simply directed recording of the verification statements of the complainant and the witnesses. Even by that order, he did not issue any process nor he dismissed the application. Sessions Court in the Revision held that the 3 petitioner is not entitled to protection under Section 197 of the Cr.P.C. and sanction is not required. 3 Admittedly, the petitioner is junior engineer working with Mahavitaran and he can be removed from the service by the management of that company even though he may be public servant under the Electricity Act, 2003. Sanction is required for prosecution under Section 197 of the Cr.P.C. only if the public servant can not be removed from service save by or with the sanction of the Government, even though offence is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. That protection is available only to public servant, who can not be removed from his office save by or with the sanction of the Government. The petitioner is not a such public servant. Therefore, protection under Section 197 is not available to him. Hence, I find no illegality or irregularity either in the order of the revisional Court or in the order of the Magistrate directing to record verification statement. 4 Petition stands dismissed. (J.H. BHATIA,J.)