HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. 9 of 2007 Decided on: 19.5.2008 Mahitender Sharma ………Petitioner. Versus Vibhu Benal & another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Goverdhan Sharma, Advocate. For respondent No.1: Mr.Romesh Verma, Advocate. For respondent No.2: Mr. J.S. Guleria, Law Officer. V.K. Ahuja, J (Oral): Present petition has been filed by the petitioner under Section 482 Cr.P.C. for setting aside the order passed by the learned JMIC, Solan summoning the petitioner under various Sections, which order was affirmed on revision by the learned Additional Sessions Judge, Solan. Briefly stated the facts of the case are that respondent No.1 as complainant filed a complaint before the learned trial Court which recorded the preliminary evidence and summoned the petitioner under Sections 166, 167, 341, 426, 469 and 506 IPC. The petitioner preferred a revision against the said summoning order before the learned Additional Sessions Judge mainly praying _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - that the petitioner was performing his duty as police officer and sanction of the Government under Section 197 Cr.P.C. was not taken before issuing summons to the petitioner. Both these points were considered by the learned Additional Sessions Judge, but these did not find favour with the court which dismissed the petition. The petitioner has filed the present petition before this Court accordingly. The main grievance of the learned counsel for the petitioner is that the petitioner had challaned the scooter of respondent No.1 and impounded the same in accordance with law and once he was performing his duty as a police officer, no cognizance of the offences, as alleged, could be taken by the learned trial Court without taking sanction of the State Government. The sanction of the State Government is required in case the petitioner had committed some offence in performance of his lawful duties. However, in case the accused exceeds his jurisdiction and commits some offence beyond performance of his duties, say the offence under Section 341 or 506, it cannot be said that it was part of his duties to commit this offence. Moreover, the plea of sanction of the State Government has been taken which has been considered by the learned Additional Sessions Judge, who has opined that once the petitioner was removable not by the State Government but by the Police Department i.e. S.P. in question, no prior sanction under Section 197 Cr.P.C. of the State Government is required. In case the powers under Section 397 Cr.P.C. are exercised by the Sessions Judge or the High Court, no further application lies under Section 397 Cr.P.C. and accordingly no second revision was maintainable and the petitioner, therefore, came up with this petition under Section 482 Cr.P.C. However, the provisions of Section 482 Cr.P.C. are to be sparingly used and once the order has - 3 - also been upheld by the learned Additional Sessions Judge in revision and no fresh facts have been brought on record to show that the powers under Section 482 Cr.P.C. should be exercised, in the facts and circumstances of the case, the present petition deserves dismissal and the same is dismissed accordingly. However, the observations made by this Court shall not be considered as an opinion, by the learned trial Court while trying the case. The learned trial Court shall proceed with the case by fixing the dates on day-to-day basis since it is an old case. The petitioner shall be at liberty to take all the points including that of sanction before the learned Magistrate during the trial of the case, who shall decide the matter accordingly. With these observations, the petition stands disposed of. The parties are directed to appear before the learned trial Court on 23.6.2008. Record of the trial Court, if any, be returned back. (V.K. Ahuja), May 19, 2008 Judge. (TILAK)