IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.10439 of 2009 DATE: 08.10.2010 Between: D.Bramaramba and others …… Petitioners And: State of A.P, rep. by Public Prosecutor and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.10439 of 2009 ORDER: The petitioners 1 to 4/A-1 to A-4 are accused of offences punishable under Sections 166, 295, 323, 448, 506/34 I.P.C in C.C. No.77 of 2009 on the file of Judicial Magistrate of the First Class, Kothavalasa, Vizianagaram District. The 1st petitioner/A-1 is Assistant Commissioner of Endowments, Vizianagaram. The petitioners 2 to 4/A-2 to A-4 are employees of Endowments Department. The 2nd respondent/complainant claims to be hereditary trustee of Sri Venugopalaswamy temple, Thummukapalli village. It is alleged that on 23.03.2008 at 12.30 P.M. the accused gained entry into the temple by breaking open locks in the absence of the complainant without giving notice or opportunity either to the complainant or to the Archaka and that when the Archaka by name T.Ramakrishna questioned the accused about their highhandedness, he was threatened with dire consequences and was manhandled causing simple injuries on his body and that the accused removed all ornaments of the idol in the temple. According to the complainant, the temple is not a notified temple under Section 6 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (in short, the Act). The petitioners filed proceedings of the Commissioner, Endowments Department dated 16.11.1987 along with list of institutions published under Section 6(c)(ii) of the Act. 2) It is contended by the petitioners’ counsel that the 2nd respondent/complainant was suspended pending enquiry on 18.09.1991 itself and that fit person was appointed to manage affairs of the temple. There is no information as to what happened to the enquiry initiated against the 2nd respondent by the Department. When the 2nd respondent is stated to have been suspended in the year 1991 itself, it is now known why the incident took place on 23.03.2008. It is contended by the petitioners’ counsel that the entire articles and ornaments in the temple were inventoried and taken possession after breaking open locks of the temple. It is again a question of fact as to what happened after breaking open of the locks on 23.03.2008. It appears to be a dispute regarding management of the temple between the 2nd respondent claiming himself as hereditary trustee of the temple and the accused representing Endowments Department. At the same time, the entire pleas put forward by the petitioners herein are by way of defence for the offences alleged by the 2nd respondent. This Court in this petition under Section 482 Cr.P.C cannot go into and decide defence of the accused based on several documents to be proved by the petitioners. 3) It is contended by the petitioners’ counsel that the petitioners 1 to 4/A-1 to A-4 are Government servants and are entitled to protection under Section 197 Cr.P.C and that without obtaining sanction from the appropriate Government, the petitioners cannot be prosecuted by the 2nd respondent. Section 197 Cr.P.C operates as a bar for institution of prosecution against a person who is a “Public servant not removable from his office save by or with the sanction of the Government”, except with the previous sanction of the appropriate Government, in case the accused was acting or purporting to act in discharge of his official duty. There is absolutely no dispute that A-1 to A-4 are public servants within the meaning of Section 21 I.P.C. It has to be seen whether any of them can be removed from service save by or with the sanction of the Government. The petitioners’ counsel pointed out Section 3 of the Act which deals with appointments of Commissioner, Additional Commissioner, Regional Joint Commissioner, Deputy Commissioner and Assistant Commissioner. As per Section 3(1) of the Act, the Government is the appointing authority in respect of the said officers of Endowments Department. Therefore, they can be removed from their office only by the Government and with its sanction and not otherwise. In so far as other employees in Endowments Department like A-2 to A-4 are concerned, though they are public servants, they need not necessarily be removed with previous sanction of the Government. Therefore, A-2 to A-4 are outside the protection under Section 197 Cr.P.C. It is only A-1 who is entitled for protection under Section 197 Cr.P.C in case she was discharging her duty as Assistant Commissioner of Endowments at the time of offence. Having regard to facts of the case and having regard to the fact that it is a dispute regarding management of the temple, this Court is of the opinion that A-1 was discharging her official duty as Assistant Commissioner of Endowments on the date of offence when the alleged offences were said to have been committed. It is not specifically averred that A-1 indulged in the offence of Section 323 I.P.C against Archaka of the temple. Having regard to totality of the circumstances, this Court is of the opinion that taking cognizance of the case for the above offences against to the 1st petitioner/A-1, is violative of Section 197 Cr.P.C and that therefore, it is not in accordance with law. 4) In the result, the petition is partly allowed quashing proceedings in C.C. No.77 of 2009 on the file of Judicial Magistrate of the First Class, Kothavalasa in so far as the 1st petitioner/A-1 is concerned; and the petition is partly dismissed in so far as the petitioners 2 to 4/A-2 to A-4 are concerned. _______________________________ SAMUDRALA GOVINDARAJULU, J October 08, 2010 KSH