HIGH COURT OF CHHATTISGARH AT BILASPUR i y: 'G- BSN- II BB KB IR. •'^\ PETITIONBR: CRIMINAI. MISC. PETITIOK N0. 932 OF 2010 Brij Lal Pandey, Son of late Shri Ratu Kuinar Paudey, Aged about62 ycara, Rtd. Sub -Inspector of PoUce Resident of Chakarbhata, Dist. Bilaspur (Chliattisgarli). RESPONDENTS i^'JE'3W^!rE^S^!" ^'1'' Versus 1. 2. 3. State of Chliattisgarh ThrQugh Distnct Magistrate Ra^arh (Chhattisgarh). Brij Mohan Agrawal, S/o Shri KaUcharaaf Agrawal, Aged about 56 years, R/o Darupara, RaigaFh, District Rsdgarh (Chliattisgarh). Jailal, son of Vishwanatti Agharia (dead), resident of ViUage Gudeli, District Raigarh (Chhattisgarh). PETITION UNDBR SECTION 482 OF CODB OF CRIMINAL PROCEDURE. 1973. ^SB sHon'ble Mr. T.P.Sharma, J.) ^e- ',.•'.'..... ' '. . . ' . Present- ShriAshish SIuivastava, Advocate for fhe petitioner. "^u^S&keshJha, Dy. G.A. fortheState/respondeutNo. 1. ORAL-ORDER (Passed on 05/01/2011) 1. 2. He'ard. By this petition under Section 482 qf the Code of Criminat Procedure, 1973 (in short 'the Code') petitioner has challenged the legality and propriety of the order dated 27/7/2010 passed by 4<i>Additional Sessions Judge (F.T.C.) Raigarh in criminal revi'sion No, 73/08 affirming the order dated'8/5/2008 passed by Judicial Magistrate First Cl&ss.Raigarh in criminal case No. 269/06 whereby application filed under Section 197 of i ' ,• ' ! the Code has beeri dismissed by the trial Court while affirming the order revisional Court also dismissed the revision filed on behalf of the petitioner yide order impugned. ^^WK A^==F^^a^^S^"^A^ SS&SKSW SsrSS^se&SS; s^ss^^^sSS^ ff^ :x~:^ I a; ^fe»^Jf i^,.. '^.'r£~!i' -^— L: 8. 3. ShriAshish Shrivastava,Advocate for the petitioner and Shri Rakesh Jha, Dy. G.A. for the State/respondent No. 1 are heard. 4. Leamed couhsel for the petitioner submits that at the time of alleged commission of the offence 5/5/85 present petitioner was working as Assistant Sub Inspector in the Police Force and as per allegation made in the complaint and statement of the complainant respondent No. 3, present petitioner has illegally detained him in police station and compelled for execution of sale deed and finally }ie succeeded in execution of the sale deed which reveal that while dischai^ing his official duty present petitioner has conunitted aforesaid offence therefore any prosecution of such public sferyant i.e. member of arm force without any sanction under Section 197 (3) of the Code was not cpmpetent. 5. Leamed counsel for the petitioner further submits that undivided State of Madhya Pradesh has issued notification under subsection 3 of Section 197 of-^F^'-Qode which is still enforce and without any sanction -ef •. continuation of criminal proceeding would only be abused of process of Court. 6. Leafned counsel for the petitioner also submits that it is not necessary that public servant must act in their official capacity but even where public servants purport to act in their official capacity the same would attract the provisions of Section 197 of the Code. 7. Leamed counsel for the petitioner placed relianoe in the matter of State of Madliva Pradesh v. Sheetla Sahai aad Others1 in which Supreme Court has held that if the public servant is not required to act in his officdal capacity but even public servant purport to act in his official capacity and same would attract the provisions of Section 197 ofthe Code. On 'the other hand, leamed counsel for the respondent No. 1/State opposed the petition and submits that as per allegation made in the (2009) 8 SCG 617 -J- 'a \: ,t". complaint and statement of the complainant petitioner was working as Assistant Sub Inspector on the date of offence but he was not authorized to detain any person in police station or compel any person to execute the sale deed in discharge his official duty or any purport to act in his official capacity therefore rider created under Section 197 (3) of the Code will not attract in the present case and continuation of criminal proceeding before the trial Court would not be abused of process of Court. 9. .As per order impugned, order of the trial Court, copy of complaint and •' copy of statement of complainant present petitioner was working as Assistant Sub Inspector has detained the complainant in police station and has comfSelled for execution of sale deed and he succeeded in execution of sale deed. Present petitioner has not been able to show that whether present petitioner has detained the respondent No, 3 in relation witlT any criminal case or offence or under any provisions of law. As per allegatio^siade in the complaint and statement present petitioner was not authorized to detain respondent No. 3 without any lawfi.il excuse or to compel him for execution of sale deed with a view to attract the provisions of Section 197 of the Code. Petitioner is required toshow that at the time ,s of alleged commission of offence he was public servant and he was discharging his official duty but present petitioner. has failed to show such act. 10. In the present case act of petitioner does not falls under his official capacity or purport to act in his official capacity, in these circuinstances any continuation of criminal proceeding against the petitioner would not be abused of process of Court. I do not find any case to invoke extrfe.ordinary inherent jurisdiction in terms of Section 482 of the Code. Consequently, petition is liable to be dismissed and is hereby dismissed at the stage of motion itself. ' Sd/- T.P. Sharma Judge ^