# Mahendra Pal Singh (Lekhpal) & Anr v. State of U.P. & Anr

- **Citation:** (2022) 2 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-10
- **Case number:** Application U/S 482 No. 15266 of 2007
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pal-singh-lekhpal-anr-v-state-of-u-p-anr-48109
- **Pages:** 6

## Headnote

Law-
Code
of
Criminal
Procedure, 1973- Section 197- Section 482-
Public Servants- Cognizance of offences
without sanction- Applicants are public
servants and further they were discharging
their official duties- The object of sanction
for prosecution whether under Section 197
of the code of criminal procedure is to
protect a public servant discharging official
duties and functions from harassment by
initiation of frivolous criminal proceeding.
The protection is available only when
alleged act done by the public servant is
reasonably connected with the discharge of
his official duty, an offence committed
outside the scope of the duty of the public
servant
would
certainly
not
require
sanction. If in doing official duty public
officer if committed any mistake or has been
summoned in excess of duty even then the
sanction of the Government as provided
under Section 197 of the Criminal Procedure
Code is mandatory. It is well settled that an
application under Section 482 Cr.P.C. is
maintainable to quash the proceedings,
which are ex facie bad for want of sanction.
If, on the face of complaint, the act alleged
appears to have a reasonable relationship
with official duty power under Section 482
Cr.P.C. would have to be exercised to quash
the proceedings to prevent abuse of process
of Court.

It is settled law that where the alleged act by
the public servant has been done in the official
or purported discharge of his official duties,
then
without
obtaining
the
sanction
for
prosecuting him u/s 197 of the Code, no
cognizance of the offences can be taken by the
magistrate and any such criminal proceeding
should be quashed by exercising the powers u/s
482 of the Code.

Criminal Application allowed. (E-3) ( Para
11, 13, 16, 20)
218 INDIAN LAW REPORTS ALLAHABAD SERIES
Judgements/ Case law relied upon:-

## Text

2 All. Mahendra Pal Singh (Lekhpal) & Anr. Vs. State of U.P. & Anr.
217
with a view to spite him due to private and
personal grudge."

11. Considering the submissions
advanced by the learned counsel for the
parties and the judgements referred above
as also perused the material available on
record, this Court is of the considered
opinion that the service of notice through
registered post was proper and there was no
rebuttal
evidence
to
show
that
the
complainant
had
deliberately
and
intentionally sent the legal notice to some
wrong address or that the applicant had
resided at some other place. Furthermore,
the applicant must have the knowledge of
the cheque having bounced from his bank
statement also. The receipt of notice or its
service on the applicant is a matter of fact
which can only be seen by the Trial Court.
The impugned order, therefore, warrants no
interference.

12. The present application is found
devoid of merits and is hereby dismissed.

13. Interim order, if any, stands
vacated.

14. Certify this order to the Lower
Court immediately.
----------
(2022)02ILR A217
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Application U/S 482 No. 15266 of 2007

Mahendra Pal Singh (Lekhpal) & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Sri Sushant Mishra

Counsel for the Opposite Parties:
A.G.A., Smt. Usha Srivastava, Sri V.K.
Srivastava

(A)
Criminal
Law-
Code
of
Criminal
Procedure, 1973- Section 197- Section 482-
Public Servants- Cognizance of offences
without sanction- Applicants are public
servants and further they were discharging
their official duties- The object of sanction
for prosecution whether under Section 197
of the code of criminal procedure is to
protect a public servant discharging official
duties and functions from harassment by
initiation of frivolous criminal proceeding.
The protection is available only when
alleged act done by the public servant is
reasonably connected with the discharge of
his official duty, an offence committed
outside the scope of the duty of the public
servant
would
certainly
not
require
sanction. If in doing official duty public
officer if committed any mistake or has been
summoned in excess of duty even then the
sanction of the Government as provided
under Section 197 of the Criminal Procedure
Code is mandatory. It is well settled that an
application under Section 482 Cr.P.C. is
maintainable to quash the proceedings,
which are ex facie bad for want of sanction.
If, on the face of complaint, the act alleged
appears to have a reasonable relationship
with official duty power under Section 482
Cr.P.C. would have to be exercised to quash
the proceedings to prevent abuse of process
of Court.

It is settled law that where the alleged act by
the public servant has been done in the official
or purported discharge of his official duties,
then
without
obtaining
the
sanction
for
prosecuting him u/s 197 of the Code, no
cognizance of the offences can be taken by the
magistrate and any such criminal proceeding
should be quashed by exercising the powers u/s
482 of the Code.

Criminal Application allowed. (E-3) ( Para
11, 13, 16, 20)
218 INDIAN LAW REPORTS ALLAHABAD SERIES
Judgements/ Case law relied upon:-

1. Matajog Dubey Vs H. C. Bahri AIR 1956 SC
44

2. Pukhraj Vs St. of Raj. & anr. 1973 (2) SCC
701

3. D.T. Virupakshappa Vs C. Subash, AIR 2015
(12) SCC 231

4. D. Devaraja Vs Owais Sabeer Hussain ,2020
(113) ACC 904

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. The instant application under
Section 482 Cr.P.C. has been filed to quash
the summoning order dated 14.03.for
demarcation.2007
passed
by
Judicial
Magistrate IIIrd, Room No.12 Farrukhabad
in complaint case No.28 of 2006 (Siya Ram
Vs. Mahendra Pal and others).

2. The brief facts of the case are that
applicant No.1 is a Lekhpal in the
Consolidation department and applicant
No.2 is a Kanoongo in the Consolidation
department and both are the public
servants. During consolidation proceedings,
a joint plot was allotted to opposite party
No.2 and one Ram Singh. Opposite party
No.2 filed an application on 28.08.2006
before Settlement Officer of Consolidation
for making measurement of plot No. 372.
The Settlement of Consolidation Officer by
order
dated
29.08.2006
directed
the
Consolidation
Officer
to
make
measurement in accordance with law.

3. In pursuance of the order of
Settlement Officer of Consolidation dated
29.08.2006,
necessary
reports
were
submitted by Consolidation authorities and
applicant Nos. 1 and 2 on 15.11.2006
conducted measurement of disputed plots
with the help of local police and submitted
their
report
before
the
Assistant
Consolidation Officer. The report dated
15.11.2006 has been annexed as Annexure
No.2 to the affidavit accompanying with
the present application, in which it is
mentioned that measurement has been
taken place taking due care of the crop
standing in the disputed plot. Opposite
party No.2 filed a complaint on 27.11.2006
before the Judicial Magistrate, Farrukhabad
with the allegation that applicant Nos.1 and
2 have illegally made measurements of the
plot, in which crops were standing and
there was an order dated 15.11.2006 to stop
the measurement,2 the2 copy of the
complaint has been annexed as Annexure
No.3 and order dated 15.11.2006 has been
annexed as Annexure No.4 to the affidavit.
The Judicial Magistrate IIIrd, Room No.12,
Farrukhabad by order dated 14.03.2007
summoned the applicant under Section 427
IPC, without considering the facts that
applicants are public servant and they were
discharging their official duties.

4. This case was listed on 10th July,
2007 and following order was passed on
that date:

"Heard the learned counsel for
the applicants and the learned A.G.A.

It is contended by the learned
counsel for the applicants are the lekhpal
and Kanoono respectively. They have made
measurement of the land on the basis of the
order passed by the C.O. concerned. They
have discharged their duties and the
allegations against them are false and
frivolous.

Issue
notice
to
O.P.
No.2
returnable within four weeks.

In
view
of
the
facts
and
circumstances,
further
proceedings
of
complaint case No.28 of 2006 pending in
2 All. Mahendra Pal Singh (Lekhpal) & Anr. Vs. State of U.P. & Anr.
219
the Court of Judicial Magistrate, III Room
No.12 Farrukhabad, shall remain stayed
till the next date of listing.

List after four weeks"

5. In pursuance of the order dated
10.07.2007, opposite party No.2 appeared
through counsel before this court and filed
his counter affidavit.

6. Heard Mr. Sushant Mishra, learned
counsel
for
the
applicants
and
Dr.
Hridayawati Mishra, learned A.G.A. for
State.

7. Nobody appeared on behalf of the
opposite party No.2

8. The learned counsel for the
applicants argued that applicant Nos.1
and 2 are public servants and they were
discharging their duties to measure the
plots, as such the private complaint
against
the
applicants
are
not
maintainable unless necessary sanction as
provided under Section 197 of Code of
Criminal Procedure is obtained. It is
further argued that applicants were not
aware about the further order passed by
the Settlement Officer Consolidation to
stop the measurement. It is further argued
that
applicants
have
retired
during
pendency of the case before this Hon'ble
Court, so their case may be considered
sympathetically.

9. On the other hand, learned
A.G.A. has submitted that the applicants
should appear before the Magistrate in
pursuance of summoning order dated
14.03.2007 and take whatever defence
they want, therefore, no interference is
required and application is liable to be
dismissed.

10. Learned counsel for the opposite
party No.2 although is not present, but I
have perused the counter affidavit filed
by him, in which it has been stated that
no ground for interference under Section
482 Cr.P.C. is made out against the
summoning order dated 14.03.2007 and
the application under Section 482 Cr.P.C.
is liable to be dismissed.

11. There is no dispute about the
fact that applicants are public servants
and further they were discharging their
official duties, as such the arguments
advanced by the learned counsel for the
applicants that private complaint against
the public servant for want of sanction
would vitiate criminal proceeding has got
substance.

12. To effectively adjudicate the issue
raised in this case, it is necessary to
examine the scope and effect of Section
197 of the Criminal Procedure Code.
Section 197 of Criminal Procedure Code is
as follows:

"Section 197 in The Code Of
Criminal Procedure, 1973

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
220 INDIAN LAW REPORTS ALLAHABAD SERIES
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: 1
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)
1
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, Magis- trate or public servant is to
be conducted, and may specify the Court
before which the trial is to be held."

13. The object of sanction for
prosecution whether under Section 197 of
the code of criminal procedure is to protect
a public servant discharging official duties
and functions from harassment by initiation
of frivolous criminal proceeding.

14. The Hon'ble Supreme court in a
case of Matajog Dubey vs. H. C. Bhari
AIR 1956 SC 44 has held:

".....Public servants have to be
protected from harassment in the discharge
2 All. Mahendra Pal Singh (Lekhpal) & Anr. Vs. State of U.P. & Anr.
221
of official duties while ordinary citizens not
so
engaged
do
not
require
this
safeguard............There is no question of
any discrimination between one person and
another in the matter of taking proceedings
against a public servant for an act done or
purporting to be done by thhe public
servant in the discharge of his official
duties. No one can take such proceedings
without such sanction....."

15. In Pukhraj vs. State of
Rajasthan and another (1973 2 SCC
701), the Hon'ble Supreme Court has held:

"2.....While the law is well settled
the difficulty really arises in applying the
law to the facts of any particular case. The
intention behind the section is to prevent
public servants from being unnecessarily
harassed. The section is not restricted only
to cases of anything purported to be done
in good faith, for a person, who ostensibly
acts in execution of his duty still purports
so to act, although he may have a dishonest
intention. Nor is it confined to cases where
the act, which constitutes the offence, is the
official duty of the official concerned. Such
an
interpretation
would
involve
a
contradiction in terms, because an offence
can never be an official duty. The offence
should have been committed when an act is
done in the execution of duty or when an
act purports to be done in execution of
duty. The test appears to be not that the
offence is capable of being committed only
by a public servant and not by anyone else,
but that it is committed by a public servant
in an act cone or purporting to be done in
the execution of duty The section cannot be
confined to only such acts as are one by a
public servant directly in pursuance of his
public officer, though in excess of the duty
or under a mistaken belief as to the
existence of such duty. Nor need the act
constituting the offence be so inseparably
connected with the official duty as to form
part and parcel of the same transaction.
What is necessary is that the offence must
be in respect of an act done or purported to
be done in the discharge of an official duty.
It does not apply to acts done purely in a
private capacity by a public servant.
Expressions such as the ''capacity in which
the act is performed', ''cloak of offence' and
''professed exercise of the office' may not
always be appropriate to describe or
delimit the scope of section. An act merely
because it was done negligently does not
cease to be one done or purporting to be
done in execution of a duty....."

16. Every offence committed by
different officer does not attract section 197
of the Code of Criminal Procedure. The
protection given under Section 197 of the
Criminal Procedure Code has its' limitation.
The protection is available only when
alleged act done by the public servant is
reasonably connected with the discharge of
his official duty, an offence committed
outside the scope of the duty of the public
servant
would
certainly
not
require
sanction. If in doing official duty public
officer if committed any mistake or has
been summoned in excess of duty even
then the sanction of the Government as
provided under Section 197 of the Criminal
Procedure Code is mandatory.

17. On the question of the stage at
which trial court has to examine whether
sanction has been obtained and if not
whether the criminal proceedings should be
nipped in the bud, there are decisions of
Apex Court.

18. On the point of stage at which
trial court has to examine sanction question
Hon'ble
Supreme
Court
in
D.T.
222 INDIAN LAW REPORTS ALLAHABAD SERIES
Virupakshappa Vs. C. Subash, AIR 2015
12 SCC 231 has held that High court had
erred in not setting aside an order of trial
court taking cognizance of a complaint in
exercise of power under Section 482
Cr.P.C.

19. The Hon'ble Supreme Court in the
case of D. Devaraja vs. Owais Sabeer
Hussain reported in [2020 (113) ACC
and 904] has held that if the sanction as
provided under Section 197 of Criminal
Procedure Code has not been taken, the
order taking cognizance by the Magistrate
will be illegal and the High Court should
exercise the power under Section 482
Cr.P.C. to quash the proceeding which was
bad for want of sanction.

20. On the basis of law laid down by
Hon'ble Supreme Court as mentioned
above, it is well settled that an application
under Section 482 Cr.P.C. is maintainable
to quash the proceedings, which are ex
facie bad for want of sanction. If, on the
face of complaint, the act alleged appears
to have a reasonable relationship with
official duty power under Section 482
Cr.P.C. would have to be exercised to quash
the proceedings to prevent abuse of process
of Court.

21. In view of the facts and
circumstances stated above, I am of the
view that learned Magistrate has illegally
taken
cognizance
of
the
offence
summoning the applicants under section
427 IPC, which is ex facie bad for want of
sanction. The application under Section 482
Cr.P.C. is allowed. The summoning order
dated 14.03.2007 passed by the Judicial
Magistrate IIIrd Room No.12 Farrukhabad
in complaint case No.28 of 2006 is set
aside and complaint is also quashed for
want of sanction in exercise of power under
Section 482 Cr.P.C. No order as to costs.
----------
(2022)02ILR A222
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Application U/S 482 No. 17510 of 2008

Vinod Sharma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Chandra Bhan Gupta

Counsel for the Opposite Parties:
A.G.A.

(A)
Criminal
Law-
Code
of
Criminal
Procedure - Section 482- Indian Penal
Code,
1860-
Section
499/
500-
Defamation- Offence punishable under
Section
500
I.P.C.
is
to
protect
a
fundamental
right
of
a
person
i.e.
''reputation' which is part of right to
enjoyment of life and liberty and property
having an ancient origin- The word ''Bhu
Maphia' (Hkw&ekfQ;k) has not been used
in the news item- if the word ''Bhu
Maphia' (Hkw&ekfQ;k) has been used by
any
other
newspaper
then
applicant
cannot be prosecuted for the same-
Complaint also in which there are nine
praragraph out of which six paragraph
contain news item of different newspaper
and paragraph no.7, 8 & 9 there are
general allegations collectively against all
the news item in different newspaper
which would not amount to defamation
against the applicant- The learned Chief
Judicial Magistrate without applying the
mind summoned the applicant along with
18 other opposite parties treating all the
news item as common although from
reading
the
news item
no case
of