# Deepak Kumar v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-18
- **Case number:** Application U/S 482. No. 32791 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-kumar-v-state-of-u-p-anr-50026
- **Pages:** 10

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 197-FIR
lodged-Final report rejected-prior sanction
not taken-Applicant was officer on duty-no
nexus between the official discharge of
duty
by
the
Applicant
and
alleged
commission of crime-no prior sanction
needed.

Application dismissed. (E-9)

List of Cases cited:

## Text

794 INDIAN LAW REPORTS ALLAHABAD SERIES
the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party."

17. In S.B. Shankar v. Amman Steel
Corpn., 2001 SCC OnLine Mad 825: it
was held that if the accused did not
function as Chairman and Director of the
accused company during the period when
cheques were drawn, no liability u/s 138 NI
Act would arise.

18. In P. Dhamodharan v. Palani
Andavar Mills Ltd., 2001 SCC OnLine
Mad 944 : it was held that when the
accused was neither signatory to the
cheques nor was in charge of day-to-day
affairs of the firm, he would not be liable
u/s 138 NI Act.

19. In Gangadhar v. Shrenikmal,
2002 SCC OnLine MP 674: it was held
that the accused was neither running a
partnership firm nor was a partner nor
signed the cheque hence, he would not be
liable u/s 138 of the NI Act.

20. In G. Hubert Fenelon v. D.
Sridharan, 2002 SCC OnLine Mad 547:
the accused was not Director of the
company on the date of the commission of
the offence hence, he was not held liable
under section 138 NI Act.

21 All the above citations are in
support of the defence taken by the
applicant. Hence, the applicant cannot be
summoned as accused under Section 138 of
the NI Act and the summoning order in
respect of the applicant is bad in law in
light of the above facts and circumstances
of the case.

O R D E R

This application under section 482
Cr.P.C is allowed and the impugned order
dated 12.08.2021, so far as it relates to the
applicant, is hereby quashed.
----------
(2023) 4 ILRA 794
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 32791 of 2022

Deepak Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Mukesh Kumar, Sri R.K. Saxena

Counsel for the Opposite Parties:
G.A., Sri Shailendra Kumar Sharma, Sri
Surendra Kumar

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 197-FIR
lodged-Final report rejected-prior sanction
not taken-Applicant was officer on duty-no
nexus between the official discharge of
duty
by
the
Applicant
and
alleged
commission of crime-no prior sanction
needed.

Application dismissed. (E-9)

List of Cases cited:

1. Mahendra Pal Singh Lekhpal & anr. Vs St. of
U.P. & anr., 2022 0 Supreme (All) 15

2. Anil Kumar Yadav Vs St. of U.P. & anr., 2022
(4) JIC 223 (SC)
4 All. Deepak Kumar Vs. State of U.P. & Anr.
795
3. Ajit Shukla & ors. Vs St. of UP through
Principal
Secretary
Home
Civil
Sectt.
&
ors.,Application U/S 482 No.5776 of 2017,
decided on 10.08.2022

4. D. Devaraja Vs Owais Sabeer Hussain, 2020 0
Supreme (SC) 413

5. St. through CBI Vs BL Verma & ors., (1997)
10 SCC 772

6. Shantaben Bhurabhai Bhuriya Vs Anand
Athabhai Chaudhari & ors., 2021 SCC OnLine
974

7. Fertico Marketing Vs Central Bureau of
Investigation CBI (2021) 2SCC 525

8. Inspector of Police & ors. Vs Battenaptala
Venkata Ratnam, AIR 2015 (SC) 2403

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri R.K. Saxena, advocate
holding brief of Sri Mukesh Kumar,
learned counsel for the applicant, Sri
Pankaj Kumar Tripathi, learned AGA for
the State and Sri Surendra Kumar, learned
counsel for opposite party no.2.

2. This application has been filed to
quash the entire proceedings of Misc. Case
No.817 of 2020 (State Vs. Mahesh Kumar)
arising out of Case Crime No.595 of 2018,
under Sections 147, 323, 504, 452, 342,
420, 467, 468, 471 IPC, Police Station
Fatehgarh Kotwali, District Farrukhabad
pending in the Court of Chief Judicial
Magistrate, Farrukhabad as well as the
impugned
summoning
order
dated
07.08.2022.

3. In brief, facts of the case are that
Constable 1107 CP Mahesh Kumar
posted at the residence of District Judge,
Fatehgarh, Farrukhabad lodged an FIR on
23.07.2018 at 10:10 a.m. about the
offence committed on 22/23.07.2018
between 10:00 p.m. and 02:00 a.m. in the
night at Crime No.595 of 2018, under
Sections 147, 323, 504, 452, 342 IPC that
he was deputed duty as guard in the night
of 22.07.2018 from 10:00 p.m. to 02:00
a.m. Chaukidar Sudhis Kumar and Pankaj
Yadav were also on duty. At about 11:15
p.m. a person in simple dress came with
6-7 persons in police uniform crossing
the main gate of the residence of District
Judge as it was locked. He ran towards
the gate and saw that two constables were
cutting the sandal wood already lying on
the earth and some constables and SSI
Deepak
Kumar
was
keeping
the
chaukidars in police jeep in drunken
condition. When he forbidden, leaving
the wood, carried the guards, abused
them
and
ran
away.
Guard
and
commander informed R.I. at once at
about 01:00 am. Both the chaukidars
returned and informed that SSI Deepak
Kumar and other constables had abused
and beaten them by sticks in which they
have received injuries. During the course
of investigation informant Mahesh Kumar
filed an affidavit to S.P. Fatehgarh
denying
the
contents
of
his
FIR.
Chaukidars Sudhis Kumar and Pankaj
Yadav
stated
in
support
of
the
prosecution in their statement under
Section 161 CrPC.

4.

After
investigation,
the
investigating
officer
submitted
final
report to the effect that no independent
and corroborative piece of evidence was
available. Injured opposite party no.2,
Pankaj Yadav filed protest petition which
was accepted and the final report was
rejected on 07.08.2022 and cognizance
has been taken against the applicant
under Sections 147, 323, 504, 452, 342,
420, 467, 468, 471 IPC. It has also been
796 INDIAN LAW REPORTS ALLAHABAD SERIES
directed that the case would run as State
case.

5. The injury report of opposite party
no.2, Pankaj Yadav is on record which
discloses four injuries, two as contusion
and two injuries as complaint of pain.

6. Before the aforesaid FIR, an FIR
under Section 379 IPC had been lodged by
Sri Mohammad Ibrahim, Central Nazir,
Civil Court, Farrukhabad regarding cutting
of two sandal trees against the unknown
thieves.

7. The applicant has taken ground that
as per affidavit of Constable Mahesh
Kumar (informant), the applicant was not
seen at the place of occurrence. Though the
injured Pankaj Yadav has supported the
prosecution version. The investigating
officer has submitted the final report as he
found no offence against the applicant and
he exonerated him from the aforesaid
offence. The applicant is a government
servant and police officer. Hence, prior
sanction for initiating the prosecution
against him was required under Section 197
CrPC which has not been taken from the
concerned department. Opposite party no.2,
Pankaj Yadav himself managed the injury
report in his favour which are simple in
nature. The applicant never made any
forged signature of opposite party no.2 and
his companion Shudhis Kumar but without
calling a report from expert, the Magistrate
summoned the applicant under Sections
420. 467. 468, 471 IPC in summary manner
which is not permissible in law.

8. After submission of the final
report, a right to defend his case was
accrued to the applicant but without
issuing any notice and without giving
opportunity of hearing to him the
impugned order has been passed which is
not permissible in law. The impugned
order is illegal. arbitrary and contrary to
the evidence and is liable to be quashed.
The applicant never beaten opposite party
no.2 and his companion at any point of
time as he was not present at the place of
occurrence and only to hide the illegal
theft of sandal wood, opposite party no.2
had falsely implicated him. Learned
Magistrate had taken cognizance without
applying his judicial mind which is not
sustainable in the eye of law. The
applicant has no criminal history. If he is
put behind the bar, he will suffer
irreparable loss. Hence, the application be
allowed and the entire proceedings of the
aforesaid case be quashed.

9.

The
applicant
has
filed
supplementary affidavit by which the
applicant has annexed the copy of G.D.
as annexure-SA-2 and supplementary
medical report of the injured Pankaj
Yadav, Opposite party no.2.

10. Since the applicant claims
protection under Section 197 CrPC,
hence it is produced as under:-

"197. Prosecution of Judges
and public servants.--(1) When any
person who is or was a Judge or
Magistrate or a public servant not
removable from his office save 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 such offence except with
the previous sanction-

(a) in the case of a person who is
employed or as the case may be, was at the
4 All. Deepak Kumar Vs. State of U.P. & Anr.
797
time of commission of the alleged offence
employed, in connection with the affairs of
the Union, of the Central Government;

(b) in the case of a person who is
employed or as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
a State, of the State Government: I
Provided that where the alleged offence
was committed by a person referred to in
clause (b) during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
in a State, clause (b) will apply as if for the
expression" State Government" occurring
therein,
the
expression"
Central
Government" were substituted.

(2)
No
Court
shall
take
cognizance of any offence alleged to have
been committed by any member of the
Armed Forces of the Union while acting or
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government.

(3) The State Government may,
by notification, direct that the provisions of
sub-section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public
order as may be specified therein, wherever
they may be serving, and thereupon the
provisions of that sub- section will apply as
if for the expression" Central Government"
occurring therein, the expression" State
Government" were substituted.

(3A) Notwithstanding anything
contained in sub-section (3), no court shall
take cognizance of any offence, alleged to
have been committed by any member of the
Forces charged with the maintenance of
public order in a State while acting or
purporting to act in the discharge of his
official duty during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
therein, except with the previous sanction
of the Central Government.

(3B) Notwithstanding anything to
the contrary contained in this Code or any
other law, it is hereby declared that any
sanction accorded by the State Government
or any cognizance taken by a court upon
such
sanction,
during
the
period
commencing on the 20th day of August,
1991 and ending with the date immediately
preceding the date on which the Code of
Criminal Procedure (Amendment) Act,
1991, receives the assent of the President,
with respect to an offence alleged to have
been committed during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
in the State, shall be invalid and it shall be
competent for the Central Government in
such matter to accord sanction and for the
court to take cognizance thereon.

(4) The Central Government or
the State Government, as the case may be,
may determine the person by whom the
manner in which, and the offence or
offences for which, the prosecution of such
Judge, Magistrate or public servant is to be
conducted, and may specify the Court
before which the trial is to be held."

11. There are difference of opinions
between the parties about the applicability
of Section 197 CrPC. According to the
learned counsel for the applicant before
proceeding against the applicant, a prior
sanction under Section 197 CrPC was
required whereas learned AGA and learned
counsel for opposite party no.2 are of the
view that the alleged commission of crime
798 INDIAN LAW REPORTS ALLAHABAD SERIES
is a separate act from the act of discharge
of official duty. In this regard both the
parties have relied on some judgments
which are as under:-

(i)
Mahendra
Pal
Singh
Lekhpal and another Vs. State of UP and
another, 2022 0 Supreme (All) 15. In this
case applicant nos.1 and 2 were the public
servant
in
consolidation
department.
During consolidation proceeding a joint
plot was allotted to them. Opposite party
no.2 filed an application before the SOC
for making measurement of plot no.372.
SOC directed consolidation officer for
measurement. The question arose as to
whether Section 197 CrPC is available here
to protect the public servant discharging
official
duties
and
functions
from
harassment by initiation of frivolous
criminal proceedings. The Court observed
that if on the face of complaint, act alleged
appears to have a reasonable relationship
with official duty, power under Section 482
CrPC would have to be exercised to quash
proceedings to prevent the abuse of process
of Court. The Court further observed that
the
Magistrate
has
illegally
taken
cognizance of the offence summoning the
applicants under Section 427 IPC which is
ex facie bad for want of sanction.

(ii) Anil Kumar Yadav Vs. State
of UP and another, 2022 (4) JIC 223 (SC).
In this case appellants were working in
railway department. They removed illegal
constructions of respondent no.2 under the
judicial order passed under Section 133
CrPC. The complainant/respondent no.2 filed
an application under Section 156(3) CrPC
against the appellant for registration of FIR.
Police
submitted
report
that
accused/appellant had removed the illegal
constructions acting in his official capacity as
a public servant. Ignoring the police report,
the Magistrate summoned the appellant under
Section 204 CrPC. The High Court refused to
quash the criminal proceedings as well as the
summoning order. The Apex Court held that
issuance of process under Section 204 CrPC
in ignorance of police report was unjust. The
appellant had taken bona fide action in
discharging his duty. Hence, no offence is
made out. Accordingly, the complaint was
quashed and the order of the High Court was
set aside.

(iii) Ajit Shukla and others Vs.
State of UP through Principal Secretary
Home Civil Sectt. and others, Application
U/S 482 No.5776 of 2017, decided on
10.08.2022. The relevant portion of the
judgment is reproduced as under:-

"9. On behalf of the applicants, it
has been submitted that the applicants were
discharging official/public duty when the
alleged incident took place for which two
complaints came to be filed and the
applicants had been summoned as accused;
mandatory provision of sanction by the
competent authority under Section 197
Criminal Procedure Code, 1973 (for short
'CrPC) could not have been ignored by the
learned Chief Judicial Magistrate before
taking cognizance and summoning the
applicants as accused; the information
received on Dial-100 through Mr. Anvar
Khan, Advocate was recorded in the G.D.
dated 21.05.2014. In the G.D. dated
22.05.2014 the extract of incident was also
recorded.
The
police
personnel,
after
receiving information. which got recorded in
the G.D., reached to the District Court to
control the situation in discharge of their
official/public duty.

14. Section 197 in The Code of
Criminal Procedure, 1973 is extracted
herein below for convenience:-
4 All. Deepak Kumar Vs. State of U.P. & Anr.
799

"197 Prosecution of Judges and
public servants.-(1) When any person who
is or was a Judge or Magistrate or a public
servant not removable from his office save
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 such offence except with the
previous sanction-

(a) in the case of a person who
is employed or as the case may be, was at
the time of commission of the alleged
offence employed, in connection with the
affairs of the Union, of the Central
Government;

(b) in the case of a person who is
employed or as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
a State, of the State Government,"

Notification No. 1841 (3)/V1-53871 dated 30th January 1975 reads as
under:-

"Grth Vibhag (Police), Anubhag9, Notification No. 1841 (3)/N1-538-71,
dated January 30, 1975-

In
exercise
of
the
powers
conferred by sub-section (3) of Section 197
of the Code of Criminal Procedure, 1973
(Act No. 2 of 1974), the Governor is
pleased to direct that the provisions of subsection (2) of the aforesaid section shall
apply to all members of the following
forces of the State, charged with the
maintenance of public order wherever they
may be serving, namely:

(i) UP Police Force

(ii)
U.P
Pradeshik
Armed
Constabulary"

(iv) In D. Devaraja Vs. Owais
Sabeer Hussain, 2020 0 Supreme (SC)
413, the matter was in respect of the
Karnataka Police Act, 1963 and Section
197 CrPC. It was held that Section 170 of
the Karnataka Police Act read with Section
197 CrPC has its limitations. Protection is
available only when alleged act done by the
public servant is reasonably connected with
discharge of his official duty and is not
merely a cloak for objectionable act. An
offence committed entirely outside scope of
duty of police officer, would certainly not
require sanction. If there is a reasonable
connection between the act and the
performance of official duty, fact that the
alleged act is in excess of duty will not be
ground enough to deprive policeman of
protection of government sanction for
initiation of criminal action against him. It
is further held that sanction is required not
only for acts done in discharge of official
duty, it is also required for an act purported
to be done in discharge of official duty
and/or act done under colour of or in excess
of such duty or authority. The act of a
policeman or any other public servant
unconnected with official duty, there can be
no question of sanction. For ready
reference relevant parts of the aforesaid
judgment are reproduced herein below:-

"59. In the context of aforesaid,
this Court held that an act is not "under" a
provision of law merely because the point
of time at which it is done coincides with
the point of time when some act in the
exercise of the powers granted by the
provision or in performance of the duty
imposed by it. To be able to say that an act
is done "under" a provision of law, one
must discover the existence of a reasonable
800 INDIAN LAW REPORTS ALLAHABAD SERIES
relationship between the provisions and the
act. In the absence of such a relation, the
act cannot be said to be done under the
particular provision of law. It cannot be
said that beating a person suspected of a
crime or confining him or sending him
away in an injured condition, at a time
when
the
police
were
engaged
in
investigation, were acts done or intended to
be done under the provisions of the Madras
District Police Act or the Code of Criminal
Procedure or any other law conferring
powers on the police. It could not be said
that the provisions of Section 161 of the
Code of Criminal Procedure authorised the
police officer examining a person to beat
him or to confine him for the purpose of
inducing him to make a particular
statement.

64. In Pukhraj Vs. State of
Rajasthan and another, (1973) 2 SCC 701
the
Accused
Post
Master
General,
Rajasthan had allegedly kicked and abused
a union leader who had come to him when
he was on tour, to submit a representation.
This Court held that Section 197 of the
Code of Criminal Procedure, which is
intended to prevent a public servant from
being harassed does not apply to acts done
by a public servant in his private capacity.
This Court however left it open to the
Accused public servant to place materials
on record during the trial to show that the
acts complained of were so interrelated
with his official duty as to attract the
protection of Section 197 of the Code of
Criminal Procedure.

68. Sanction of the Government,
to prosecute a police officer, for any act
related to the discharge of an official duty,
is imperative to protect the police officer
from
facing
harassive,
retaliatory,
revengeful and frivolous proceedings. The
requirement
of
sanction
from
the
government, to prosecute would give an
upright police officer the confidence to
discharge his official duties efficiently,
without fear of vindictive retaliation by
initiation of criminal action, from which he
would be protected Under Section 197 of
the Code of Criminal Procedure, read with
Section 170 of the Karnataka Police Act. At
the same time, if the policeman has
committed a wrong, which constitutes a
criminal offence and renders him liable for
prosecution, he can be prosecuted with
sanction from the appropriate government.

69. Every offence committed by a
police officer does not attract Section 197
of the Code of Criminal Procedure read
with Section 170 of the Karnataka Police
Act. The protection given Under Section
197 of the Code of Criminal Procedure
read with Section 170 of the Karnataka
Police
Act
has
its
limitations.
The
protection is available only when the
alleged act done by the public servant is
reasonably connected with the discharge of
his official duty and official duty is not
merely a cloak for the objectionable act.

70. An offence committed entirely
outside the scope of the duty of the police
officer,
would
certainly
not
require
sanction. To cite an example, a police man
assaulting a domestic help or indulging in
domestic violence would certainly not be
entitled to protection. However if an act is
connected to the discharge of official duty
of investigation of a recorded criminal
case, the act is certainly under colour of
duty, no matter how illegal the act may be.

71. If in doing an official duty a
policeman has acted in excess of duty, but
there is a reasonable connection between
the act and the performance of the official
4 All. Deepak Kumar Vs. State of U.P. & Anr.
801
duty, the fact that the act alleged is in
excess of duty will not be ground enough to
deprive the policeman of the protection of
government sanction for initiation of
criminal action against him.

72. The language and tenor of
Section 197 of the Code of Criminal
Procedure
and
Section
170
of
the
Karnataka Police Act makes it absolutely
clear that sanction is required not only for
acts done in discharge of official duty, it is
also required for an act purported to be
done in discharge of official duty and/or
act done under colour of or in excess of
such duty or authority.

73. To decide whether sanction is
necessary, the test is whether the act is
totally unconnected with official duty or
whether there is a reasonable connection
with the official duty. In the case of an act
of a policeman or any other public servant
unconnected with the official duty there can
be no question of sanction. However, if the
act alleged against a policeman is
reasonably connected with discharge of his
official duty, it does not matter if the
policeman has exceeded the scope of his
powers and/or acted beyond the four
corners of law.

74. If the act alleged in a
complaint purported to be filed against the
policeman is reasonably connected to
discharge of some official duty, cognizance
thereof cannot be taken unless requisite
sanction of the appropriate government is
obtained Under Section 197 of the Code of
Criminal Procedure and/or Section 170 of
the Karnataka Police Act.

76. While this Court has, in D.T.
Virupakshappa Vs. C. Subash, (2015) 12
SCC 231 held that the High Court had
erred in not setting aside an order of the
Trial Court taking cognizance of a
complaint, in exercise of the power Under
Section
482
of
Code
of
Criminal
Procedure, in Matajog Dobey Vs. H.C.
Bhari, AIR 1956 SC 44 this Court held it is
not always necessary that the need for
sanction Under Section 197 is to be
considered as soon as the complaint is
lodged and on the allegations contained
therein. The complainant may not disclose
that the act constituting the offence was
done or purported to be done in the
discharge of official duty and/or under
colour
of
duty.
However
the
facts
subsequently coming to light in course of
the trial or upon police or judicial enquiry
may establish the necessity for sanction.
Thus, whether sanction is necessary or not
may have to be determined at any stage of
the proceedings."

12. In the cited case, the appellant
was the police officer of rank of S.P. It was
held that on face of complaint, if act
alleged appears to have a reasonable
relationship with official duty, where
criminal proceeding is apparently prompted
by mala fides and instituted with ulterior
motive, power under Section 482 CrPC
would have to be exercised to quash
proceedings, to prevent abuse of process of
Court.

13. Records of the instant case clearly
reveal that that complainant alleged that the
police exceeded while respondent was in
custody, in course of investigation In
connection.

14. Learned counsel for opposite
party no.2 and learned AGA have argued
that the applicant is denying his presence at
the time and place of occurrence, hence he
cannot claim protection under Section 197
CrPC. The applicant's counsel has argued
802 INDIAN LAW REPORTS ALLAHABAD SERIES
necessity of previous sanction before
initiation
of
the
impugned
criminal
proceeding without accepting the presence
of the applicant as officer on duty on the
alleged date, time and place of occurrence.
It has also been argued by the learned
counsel for opposite party no.2 that there is
no GD entry that the applicant had visited
the place of occurrence that time to record
the evidence in connection of investigation
of the prior case. The applicant has also not
admitted that he had visited the District
Judge,
residence
for
inspection
in
connection of the FIR dated 21.07.2018,
under Section 379 IPC lodged earlier with
regard to theft of sandal tree.

15. Thus it is concluded that since
there is complete denial by the applicant
from the commission of the alleged crime,
therefore, the present case is a separate and
distinct crime from the previously lodged
FIR under Section 379 IPC and also from
the official discharge of duty of the
applicant for which no prior sanction was
required.

16. In the above judicial precedents it
has been held that if the accused was
discharging official duty when the alleged
incident took place or the alleged incident
was
reasonably
connected
with
the
discharge of official duty, the previous
sanction for prosecution of a public servant
under Section 197 CrPC would be
mandatory but if the offence ought to have
been committed by the accused is entirely
outside of the scope of the duty of a police
official,
there
would
not
be
any
requirement of prior sanction. Here the
applicant is denying the commission of the
alleged crime in which opposite party no.2
has received injuries and FIR had also been
lodged in due course and only on the basis
of submission of two affidavits, one of
Mahesh Kumar and another by Chaukidar,
Sudhish Kumar, final report was produced
ignoring
the
statement
and
injuries
sustained by Pankaj Yadav, opposite party
no.2. Whether the alleged offence had been
committed by the applicant or not, can be
decided only after taking evidence and
during the trial. Only on the basis of status
of the applicant that he is a police officer,
he can not claim exemption under Section
197 CrPC. The protection under Section
197 CrPC is available only when the
alleged offence had been committed in
connection of discharge of official duty in
due course. If such alleged offence has no
connection with the discharge of official
duty there would not be any need of prior
sanction under Section 197 CrPC. It is not
the case of the applicant that acting as I.O.
he exceeded his duty and that is why the
alleged occurrence has been committed.
This Court is of the view that there is no
nexus or connection between the official
discharge of duty by the applicant and the
alleged commission of crime, hence, there
was no need for taking prior sanction under
Section 197 CrPC.

17. I n some of the judgments, it has
been held that no cognizance can be taken
if prior sanction is pending consideration
but contrary to that in State through CBI
Vs. BL Verma and others, (1997) 10 SCC
772; Shantaben Bhurabhai Bhuriya Vs.
Anand Athabhai Chaudhari and others,
2021 SCC OnLine 974, it has been held
that the order of the High Court to drop the
proceeding for want of sanction under
Section 197(1) CrPC is bad. It will be
perfectly valid and open to the petitioner to
activate
the
prosecution
against
the
respondent.

18.

In
Shantaben
Bhurabhai
Bhuriya (supra) it was held that absence of
4 All. Smt. Sonia Srivastava & Anr. Vs. State of U.P. & Anr.
803
sanction can not be a ground to quash the
criminal proceeding in exercise of power
under
Section
482
CrPC
is
rather
impermissible and if there is need of
sanction under Section 197 CrPC, the Court
may direct the authority to take sanction
and then proceed in stead of quashing the
entire proceeding. The same view has been
taken in Fertico Marketing Vs. Central
Bureau of Investigation CBI (2021) 2SCC
525.

19. In para 11 of Inspector of Police
and others Vs. Battenaptala Venkata
Ratnam, AIR 2015 (SC) 2403, it has been
held that the alleged indulgence of the
officers in cheating, fabrication of records
or misappropriation cannot be said to be in
discharge of their official duty. Their
official duty is not to fabricate records or
permit evasion of payment of duty and
cause loss to the Revenue. Unfortunately,
the High Court missed these crucial
aspects. The learned Magistrate has
correctly taken the view that if at all the
said view of sanction is to be considered, it
could be done at the stage of trial only.

20. Here the learned Trial Court has
not opined that the alleged commission of
crime by the applicant is in connection or
nexus with his official discharge of duty,
hence, he proceeded with the case in
absence of prior sanction under Section 197
CrPC.

21. This Court is also in conformity
with the conclusion of the learned Trial
Court. This Court does not find the alleged
occurrence having any connection with the
discharge of official duty entrusted to the
applicant. Hence, there would be no need
of prior sanction before taking cognizance
and passing the impugned summoning
order.

22. On the basis of above discussion,
this Court is of the considered view that
this application under Section 482 CrPC is
not maintainable and is liable to be
dismissed.

23. This application under Section
482 CrPC is dismissed accordingly.
----------
(2023) 4 ILRA 803
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application U/S 482. No. 35136 of 2022

Smt. Sonia Srivastava & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ashwani Kumar Sachan, Sri Saurabh
Sachan

Counsel for the Opposite Parties:
G.A., Sri Anil Kumar Mishra

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 125 - Application
u/s 125(6) Cr.P.C. rejected-Applicant defrauded
by opposite party stating himself to be widowerapplicant no.2 was born out of their wedlockopposite party was ready to give sample for
D.N.A. test but did not appeared for it-nor paid
the fees- and has recalled the order for D.N.A.
test-Trial Court without adjudicating opposite
party
as
biological
father
under
legal
presumption u/s 14 of Evidence Act-without
D.N.A. test-bad- one more opportunity granted
for giving D.N.A. sample and depositing the
fees-if fails Family Court would be free to draw
the inference-if D.N.A. test found positive -
Applications u/s 125 & 125 (6) Cr.P.C. shll be
decided.

Application allowed. (E-9)