IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH DECEMBER 2008 / 28TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3860 of 2008() ----------------------------------------- SC NO.604/2007 OF ASST. SESSIONS COURT, MAVELIKKARA ............................. REVN. PETITIONER/1ST ACCISED: ------------------------------------------------ T.N. VINOD KUMAR, S/O. NANU, THADIKAYAL HOUSE, IROOPPA FATHIMAPURAM P.O., CHANGANASSERY. BY ADV. SRI.S.SREEKUMAR RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 3860 of 2008 ORDER ON CRL.MA. NO.11839/2008 IN CRL. RP. NO.3860/2008. DISMISSED 19/12/2008. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3860 OF 2008 ............................................ DATED THIS THE 19th DAY OF DECEMBER, 2008 ORDER Revision petitioner is first accused in S.C.604 of 2007 on the file of Assistant Sessions Judge, Mavelikkara. He, along with four other accused, were alleged to have committed offences under Section 395, 342 and 120B of IPC. Case was committed to Sessions Court by Judicial First Class Magistrate-I, Mavelikkara as per order in C.P.46 of 2007. At the time of hearing the prosecution and defence, as provided under Section 227 of Code of Criminal Procedure, petitioner sought discharge contending that he being a C.I of Police, and as no sanction was obtained as provided under Section 197 of the Code, cognizance could not have taken against him and charge also cannot be framed and he is entitled to be discharged. Petitioner pointed out that before Assistant Sessions Judge, Public Prosecutor had filed an application on 19.9.2008 stating that prosecution had sought sanction of the Government to prosecute first petitioner and sanction was not so far obtained and they need some more time to produce the sanction. 2. Learned Assistant Sessions Judge, finding that no CRRP 3860/2008 2 sanction is necessary, rejected the claim for discharge raised by petitioner as per order dated 5.11.2008. The order is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 3. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. Learned counsel pointed out that prosecution has no case that sanction is not necessary to prosecute revision petitioner and their only case was that they had sought sanction before the proper authorities and it is pending and not that sanction was not necessary. If sanction as provided under Section 197(1) of Code of Criminal Procedure is necessary, court cannot take cognizance of the offence and Assistant Sessions Judge should not have rejected the claim for discharge and as there is no sanction, petitioner is to be discharged. Learned Public Prosecutor on instructions submitted that the sanction sought for by prosecution is not so far granted and it is pending before the Government. 4. As rightly pointed out by learned counsel appearing for revision petitioner, when prosecution has no case that sanction provided under Section 197(1) of Code of Criminal Procedure is not necessary to prosecute revision petitioner and instead the CRRP 3860/2008 3 specific case is that sanction is necessary and application is filed before the government seeking sanction, learned Assistant Sessions Judge was not justified in holding that no sanction is necessary. In such circumstances, the finding of the learned Assistant Sessions Judge that no sanction under Section 197 of Code of Criminal Procedure is necessary to prosecute revision petitioner is not sustainable. 5. The question is what is the consequence. Sub-section (1) of Section 197 provides that when any person who is a public servant not removable from his office, say by or with the sanction of the government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of the offence, except with the previous sanction of the authority. Therefore when the offence is allegedly committed by a public servant and to prosecute him sanction is necessary as the act was done or purported to be done in discharge of his official duty, sanction is a pre-requisite to take cognizance. Without sanction as provided under Section 197(1) of Code of Criminal Procedure, Assistant Sessions Judge cannot frame charge as against revision petitioner for the offences, in view of the CRRP 3860/2008 4 admission of the prosecution that sanction is necessary. Therefore the order passed by Assistant Sessions Judge is set aside. 6. Revision petition is allowed. The order passed by Assistant Sessions Judge, Mavelikkara in S.C.604 of 2007 dated 5.11.2008 is set aside. Revision petitioner is discharged under Section 227 of Code of Criminal Procedure. It is made clear that the discharge will not prevent the court from proceeding against revision petitioner if and when sanction is obtained. M.SASIDHARAN NAMBIAR, JUDGE lgk/-