# N.K. Mehrotra v. Chief Judicial Magistrate, Lucknow & Anr

- **Citation:** (2019) 3 ILRA 23
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-15
- **Case number:** U/S 482/378/407 No. 2916 of 2016
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/n-k-mehrotra-v-chief-judicial-magistrate-lucknow-anr-44832
- **Pages:** 14

## Headnote

Law-Code
of
Criminal
Procedure, 1973 - Section 197; Uttar
Pradesh Lokayukta and Up-Lokayuktas
Act, 1975- Protection under Section 17
(1) of the Lokayukta Act- has to be
24 INDIAN LAW REPORTS ALLAHABAD SERIES
strictly interpreted- Held- Complaint
barred under Section 17(1) of the Act.

B. Section 200 Cr.Pc- Uttar Pradesh
Lokayukta and Up-Lokayuktas Act, 1975-
Section 21 of the I.P.C- Section 197 of
the Cr.P.C. The order passed by the
applicant acting as a Lokayukta was in
discharge of his official capacity which
he was authorised to perform under the
provisions of the U. P. Lokayukta Act -
No cognizance could be taken by the
Magistrate
without
sanction
under
Section
197
Cr.P.C.
Impugned
proceedings of criminal case and order
taking cognizance accordingly quashed.

C. Complaint - "taking cognizance"-
Section 200 and Section 202 Cr.P.C.-
Held - the Magistrate recording the
statements under Section 200 Cr.P.C.
and fixing date for recording of the
statement under Section 202 Cr.P.C.
would fall within the expression "taking
cognizance", as used in Section 200
Cr.P.C.

D.

"Public
Servant"-
Section
21
(Seventh Explanation) of the I.P.C. read
with Section 13 (6) of the Lokayukta Act
-Held- Applicant would fall within the
definition of ''public servant' and cannot
be
removed
without
following
the
procedure as prescribed under Section 6
of the Lokayukta Act and without the
sanction of the Governor.

Application u/s 482 Cr.P.C. disposed of.
 (E-3)

List of Cases cited: -

## Text

_Characters 0–39,601 of 44,492. This is a partial read: ask again with offset=39601 for what follows._

3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
23
quoted the ratio in Mahesh Chand (supra)
discussed hereabove.

Following
the
aforesaid
principles which are more or less settled
and are holding the field since 1962 and
have been repeatedly followed by this
Court, we are of the view that the second
complaint in this case was on almost
identical facts which was raised in the
first complaint and which was dismissed
on merits. So the second complaint is not
maintainable. This Court finds that the
core of both the complaints is the same.
Nothing has been disclosed in the second
complaint which is substantially new and
not disclosed in first complaint. No case
is made out that even after the exercise of
due diligence the facts alleged in the
second complaint were not within the
application of the first complainant. In
fact such a case could not be made out
since the facts in both the complaints are
almost identical. Therefore, the second
complaint
is
not
covered
within
exceptional circumstances explained in
Pramatha Nath (supra). In that view of
the matter the second complaint in the
facts of this case, cannot be entertained."

15. In the present case, a perusal of
the complaint and the order passed earlier
rejecting the complaint makes it clear that
the second complaint (under challenge in
the present proceeding) is nothing but a
mere repetition and nothing has been
argued to demonstrate that any of the
exceptional circumstances as enumerated
in the judgement of Poonam Chand Jain
(supra) were available while filing the
second complaint.

16. On this count alone and placing
reliance on the judgement of Poonam
Chand Jain (supra) I have no hesitation
in holding that the summoning order
dated 18.10.2013 passed in Complaint
Case No. 433 of 2013 as well as the
revisional order dated 23.12.2015 are in
ignorance the settled position of law and
thus cannot be sustained and are quashed.

17. Consequently, the Complaint
Case No. 433 of 2013, pending before the
court of Additional Civil Judge (Junior
Division)/Magistrate,
Court
No.
22,
Raebareli is hereby quashed.

18. The application u/s 482 Cr.P.C.
is disposed off.

19. Let a copy of this order be sent
to the court concerned for it being placed
on record.
----------
(2019)11ILR A23

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.11.2019

BEFORE
THE HON'BLE PANKAJ BHATIA , J.

U/S 482/378/407 No. 2916 of 2016

N.K. Mehrotra ...Applicant
Versus
Chief Judicial Magistrate, Lucknow &
Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Anupam Mehrotra

Counsel for the Opposite Parties:
Govt. Advocate, Dr. Nutan Thakur (In
Person)

A.
Crimina
Law-Code
of
Criminal
Procedure, 1973 - Section 197; Uttar
Pradesh Lokayukta and Up-Lokayuktas
Act, 1975- Protection under Section 17
(1) of the Lokayukta Act- has to be
24 INDIAN LAW REPORTS ALLAHABAD SERIES
strictly interpreted- Held- Complaint
barred under Section 17(1) of the Act.

B. Section 200 Cr.Pc- Uttar Pradesh
Lokayukta and Up-Lokayuktas Act, 1975-
Section 21 of the I.P.C- Section 197 of
the Cr.P.C. The order passed by the
applicant acting as a Lokayukta was in
discharge of his official capacity which
he was authorised to perform under the
provisions of the U. P. Lokayukta Act -
No cognizance could be taken by the
Magistrate
without
sanction
under
Section
197
Cr.P.C.
Impugned
proceedings of criminal case and order
taking cognizance accordingly quashed.

C. Complaint - "taking cognizance"-
Section 200 and Section 202 Cr.P.C.-
Held - the Magistrate recording the
statements under Section 200 Cr.P.C.
and fixing date for recording of the
statement under Section 202 Cr.P.C.
would fall within the expression "taking
cognizance", as used in Section 200
Cr.P.C.

D.

"Public
Servant"-
Section
21
(Seventh Explanation) of the I.P.C. read
with Section 13 (6) of the Lokayukta Act
-Held- Applicant would fall within the
definition of ''public servant' and cannot
be
removed
without
following
the
procedure as prescribed under Section 6
of the Lokayukta Act and without the
sanction of the Governor.

Application u/s 482 Cr.P.C. disposed of.
 (E-3)

List of Cases cited: -

1. M/s Pepsi Foods Ltd. & anr. Vs Special Judicial
Magistrate & ors., (1998) SCC (Cri) 1400

2. Institution of A.P. Lokayukta Vs T. Rama
Subba Reddy; (1997) 9 SCC 42,

3. St. of U.P. Vs Sheo Shanker Lal Srivastava;
(2006) 3 SCC 276

4. M.P. Special Police Establishment Vs St. of
M.P.; (2004)8 SCC 788
5. Rang Nath Mishra Vs St. of U.P.; (2015) 8
SCC 117

6. St. of Rajasthan Vs Shamsher Singh; (2015)
4 SCC (Cri) 421

7. St. of Orissa Vs MESCO Steels Ltd..; (2013)
4 SCC 340

8. Matajog Dubey Vs H.C. Bhari; AIR (1956)
SC 44

9. Ramayya Vs St. of Bombay; AIR (1955) SC
287

10. Amrik Singh Vs St. of Pepsu; AIR (1955)
SC 309

11. N.K. Ogle Vs Sanwaldas; (1999) 3 SCC 284

12. Manharibhai Muljibhai Kakadia & anr. Vs
Shaileshbhai Mohanbhai Patel & ors.; (2012)
10 SCC 517

13. Suresh Kumar Bhikamchand Jain Vs
Pandey Ajay Bhushan; (1998) 1 SCC 205

(Delivered by Hon'ble Pankaj Bhatia, J. )

1. Heard Sri Anupam Mehrotra,
Advocate on behalf of the applicant. No
one appears for the opposite party no. 2. I
have also heard learned AGA for the
State.

2. The present petition has been
filed seeking quashing of Case No. 8737
of 2015 (Dr. Nutan Thakur v. Sri N.K.
Mehrotra) pending in the Court of Chief
Judicial Magistrate, Lucknow for the
offences allegedly committed by the
applicant as Lokayukta, U.P. under
Sections 166, 167, 195, 195-A, 196, 200,
211, 219, 500 I.P.C.

3. The brief facts, giving rise to the
present application under Section 482
Cr.P.C., are as under:-
3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
25

4. The petitioner, a retired Judge of
this Court, was appointed as a Lokayukta,
Uttar Pradesh under the U.P. Lokayukta
and
Up-Lokayuktas
Act,
1975
(hereinafter referred to as the 'Lokayukta
Act') and acted as a Lokayukta from
16.3.2006 till 31.1.2016.

5. It has been stated in the
application that while the applicant was
acting as a Lokayukta, a Complaint Case
No. 3540 of 2014 dated 26.12.2014 was
filed by the OP No. 2 before the
applicant. The applicant in exercise of his
powers found the complaint of the OP
No. 2 as vexatious and frivolous and
passed relevant orders under Section 10
(5) read with Section 10 (4) of the
Lokayukta Act. A copy of the said
decision has been annexed as Annexure-2
to the application.

6. The OP No. 2 herein challenged
the said order dated 25.5.2015 passed by
the applicant in a writ petition before this
Court being Writ Petition No. 11178
(MB) of 2015 (Nutan Thakur v. State of
U.P. and others), which is pending.

7. On 21.7.2015, a complaint was
filed before the applicant acting as a
Lokayukta against the husband of the
opposite party no. 2 and on the said
complaint the applicant acting as a
Lokayukta conducted the investigation
and
after
conducting
the
said
investigation, submitted his report no. 04
of 2015 dated 24.8.2015 to the Chief
Secretary, Government of U.P. with his
findings and recommendations, along
with relevant document, material and
evidence. The applicant, acting as a
Lokayukta vide his said report dated
24.8.2015 made several recommendations
against the husband of OP No. 2. The
husband of the OP No. 2 challenged the
said report of the Lokayukta dated
24.8.2015 by filing a Writ Petition No.
7964 (MB) of 2015 (Amitabh Thakur v.
Sri N.K. Mehrotra and Others), which is
pending.

8. In pursuance of the report of the
Lokayukta dated 24.8.2015, the State
Government
acting
upon
said
recommendation, lodged an F.I.R. dated
16.9.2015
through
the
Vigilance
Establishment, Government of U.P. at
Police Station Gomti Nagar, Lucknow
under Section 13(2) read with Section 13
(1) (e) of Prevention of Corruption Act,
1988.

9. Prior to the submission of the
report dated 24.8.2015, a notice was got
served on behalf of the parents of the
husband of OP No. 2 dated 22.8.2015
purporting to be legal notice under
Section
80
C.P.C.
threatening
the
institution of a suit for damages and
compensation.

10. On 3.9.2015, a complaint was
filed under Section 200 Cr.P.C. before the
C.J.M.,
Lucknow
alleging
that
the
complainant is a civil activist and an
advocate and is filing the complaint for
the illegal acts of the applicant against the
husband of the complainant while passing
orders in Case No. 2583 of 2015. It was
further alleged that while acting as a
Lokayukta, the applicant has deliberately
relied upon the evidences which he knew
to be wrong and false and on half baked
facts, which were well within the personal
knowledge of the applicant and thus was
guilty of wrongly relying upon nonexistent evidence and knowing that the
evidence was non-existent proceeded to
pass an order against the provisions of the
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Lokayukta
Act
and
the
Lokayukta
Complaint Rules, 1977. It was further
alleged
that
the
husband
of
the
complainant had informed the applicant
about
the
facts
through
written
communication
dated 12.8.2015
and
19.8.2015. In sum and substance, the
allegations made in the complaint were
that the applicant has passed a wrong
order relying upon evidences which he
knew were incorrect and half baked and
wrong facts with a view to harm the
complainant's husband. A copy of the
complaint which is on record clearly
reveals that the entire allegations were in
relation to the order passed by the
applicant in exercise of his power under
the Lokayukta Act.

11. The C.J.M. vide his order dated
3.9.2015 took cognizance of the offence
alleged and directed for registration of the
complaint and for recording of the
statements under Section 200 Cr.P.C. on
10.09.2015.

12. On 10.09.2015, one Sri Sanjay
Sharma intervened in the said Complaint
Case No. 8737 of 2015 and requested for
rejection of the complaint and informed
the C.J.M. that the cognizance of the
complaint was barred under Section 17 of
Lokayukta Act and Section 201 I.P.C. and
the complaint was not maintainable. The
C.J.M. vide his order dated 10.9.2015
held that at this stage the intervener had
no right to intervene and consequently
rejected
his
application
and
fixed
11.9.2015 for recording of evidence under
Section 200 Cr.P.C. He subsequently
proceeded to record the statement under
Section 200 Cr.P.C. on 11.9.2015 and
subsequently the statement under Section
202 Cr.P.C. was adjourned for recording
on various dates.

13. The applicant filed the present
application under Section 482 Cr.P.C. on
3rd May, 2016 seeking the quashing of
the criminal proceedings.

14. Sri Anupam Mehrotra, Advocate
has made the following submissions:-

15. That the Magistrate was not
justified in registering the complaint
against the petitioner who happens to be
the Lokayukta as the allegations in the
complaint were based upon the acts which
were in discharge of the official duty as a
Lokayukta. The submissions are that
Section 17 (1) of the U.P. Lokayukta and
Up-Lokayuktas Act, 1975, bars any
prosecution for the official acts He further
argues that the Magistrate received an
information to that effect, however,
despite being informed he proceeded to
record the evidence under Section 200 of
Cr.P.C.
which
is
violative
of
the
immunity granted to the petitioner under
Section 17(1) of the Act. The next
argument of Sri Anupam Mehrotra is that
even in terms of the provisions of Section
197 Cr.P.C. without there being any
sanction
the
Magistrate
could
not
entertain the complaint and to take steps
as has been done by the Magistrate. He
further argues that the acts done by the
petitioner in discharge of his duty as
Lokayukta fell within the exceptions
under Chapter IV of the Indian Penal
Code.
He
specifically
relied
upon
Sections 76 and 79 of Chapter IV of the
Indian Penal Code, in that regard he
further relied upon the judgments filed in
the form of Synopsis which are taken on
record. He has relied upon the judgment
of the Supreme Court in the cases of M/s
Pepsi Foods Ltd. and another Vs.
Special Judicial Magistrate and others,
1998 SCC (Cri) 1400, Institution of A.P.
3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
27
Lokayukta v. T. Rama Subba Reddy;
(1997) 9 SCC 42, State of U.P. v. Sheo
Shanker Lal Srivastava; (2006) 3 SCC
276, M.P. Special Police Establishment
v. State of M.P.; (2004)8 SCC 788, Rang
Nath Mishra v. State of U.P.; (2015) 8
SCC
117,
State
of
Rajasthan
v.
Shamsher Singh; (2015) 4 SCC (Cri)
421, State of Orissa v. MESCO Steels
Ltd.; (2013) 4 SCC 340, Matajog Dubey
v. H.C. Bhari; AIR 1956 SC 44,
Ramayya v. State of Bombay; AIR 1955
SC 287, Amrik Singh v. State of Pepsu;
AIR 1955 SC 309 and N.K. Ogle v.
Sanwaldas; (1999) 3 SCC 284.

16. The next argument of Sri
Mehrotra is that the antecedents of the
applicant are doubtful inasmuch as the
complainant is a habitual litigant and on
several occasions being reprimanded by
the High Court. A copy of the order
whereby the P.I.L. being Misc. Bench No.
2967 of 2014 filed by the OP No. 2 was
dismissed by imposing a cost of Rs.
25,000/- and by making the following
observations:-

"8. In many of the files of public
interest litigation filed by the petitioner,
examined by the Court, we find that the
petitioner has raised issues within a few
days when any social or political issue
attracts the attention of the media. Almost
all the writ petitions are filed without any
research or material and based only on the
newspaper reports. The petitioner appears
to have a permanent presence before the
Bench hearing public interest litigation
matters. It appears from the records of the
writ petitions and the orders that the
petitioner
has
received
a
tacit
encouragement in filing such petitions,
which takes away substantial time of the
Court leaving other important matters.

9. Most of the writ petitions,
filed by the petitioner in person are not in
public interest. These writ petitions have
been filed covering almost every subject
covered by media to be topical mostly
concerning social, political economic or
commercial interest. She has also allowed
her children, still minor in filing writ
petitions; the last one concerning the
decision of the Central government
awarding Bharat Ratna awards. Almost
every subject under the sun which attracts
her imagination becomes a subject matter
of public Interest Litigation.

10. In order to save this Court
from the tsunami of writ petitions filed by the
petitioner who appear almost every other
day in Court touching matters which hits the
headline, treating it as public interest, we
find it appropriate to direct that hence forth
the registry of the Court will not entertain
any writ petition in public interest from Dr
Nutan Thakur - either in person or though
counsel (either as petitioner or co-petitioner)
unless the petition, filed by her, accompanies
a demand of Rs.25,000/- (Twenty Five
Thousand). At the time of admission of the
writ petition, if the Court considers that the
petitioner has raised a matter which is
genuine and bonafide in public interest, the
demand draft deposited by her may be
returned to her. In case it is found by the
Court that the Writ Petition filed by her does
not involve any public interest and the writ
petition is dismissed, the amount in the
demand draft deposited by her will be
treated as costs imposed on her, and the
amount will be credited in the account of the
High Court Legal Services Committee at
Lucknow to be spent for activities of the
Legal Services Committee of the High Court.

11.
The
writ
petition
is
dismissed, with cost of Rs.25,000/- to be
28 INDIAN LAW REPORTS ALLAHABAD SERIES
paid by the petitioner appear in person to
be deposited by her within a month with
Senior Registrar, High Court at Lucknow,
failingwhich it will realized from her by
the District Magistrate, Lucknow with one
month thereafter for which the demand
will be sent by the Senior Registrar,
subject to deposit made by her within
within one month."

17. On the basis of submission as
recorded above, Sri Anupam Mehrotra,
Advocate prays that the proceedings
pending
before
the
Chief
Judicial
Magistrate are liable to be quashed.

18. Thus, what is to be decided by
this Court is:-

(i) whether the order dated
3.9.2015 amounts to ''taking cognizance',

(ii) whether the complaint as
filed is barred under Section 17(1) of the
Lokayukta Act,

(iii) whether there being an
absence of sanction under Section 197
Cr.P.C. the C.J.M. erred in taking
cognizance of complaint and,

(iv) whether the complainant
could not have filed the complaint being a
habitual litigant.

19. To appreciate the arguments
advanced it is essential to deal with the scope
and ambit of the ''Lokayukta Act' and Section
197 Cr.P.C. The scheme of the Uttar Pradesh
Lokayukta and Up-Lokayuktas Act, 1975
makes it clear that the said Act was enacted
for appointment and function of authorities for
investigation of grievances and allegations
made against Ministers, Legislatures and
public servants in certain cases.

20. Section 3 of the said Act
provides
for
the
appointment
of
Lokayukta and Up-Lokayukta who are
empowered to conduct investigations. It
provides that the Lokayukta shall be
appointed after the consultation with the
Chief Justice of High Court of Judicature
at Allahabad and the leader of the
opposition in the Legislative Assembly.

21. The Act further bars the
Lokayukta or the Up-Lokayukta from
holding
any
other
Office.
The
appointment of the Lokayukta is for a
tenure as provided under Section 5 of the
Act being six years from the date on
which he enters his Office. Section 6 of
the said Act provides for the manner of
removal of Lokayukta and Up-Lokayukta.
Section 7 of the said Act provides for the
matter in which the investigations may be
carried out by the Lokayukta or the UpLokayukta and Section 8 specifically bars
the matters in which the investigations
cannot be carried out by the Lokayukta.

22. Section 10 of the Lokayukta Act
provides for the procedure to be adopted
in respect of investigations and is as
under:-

"10. Procedure in respect of
investigations. - (1) Where the Lokayukta
or an Up-Lokayukta proposes (after
making such preliminary inquiry, if any,
as he deems fit) to conduct any
investigation under this Act, he -

(a) shall forward a copy of the
complaint to the public servant concerned
and the competent authority concerned;

(b) shall afford to the public
servant concerned an opportunity to offer
his comments on such complaint; and
3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
29

(c) may make such orders as to
the safe custody of documents relevant to
the investigation, as he deems fit.

(2) Every such investigation
shall be conducted in private, and in
particular, the identity of the complainant
and of the public servant affected by the
investigation shall not be disclosed to the
public or the press whether before, during
or after the investigation :

Provided that, the Lokayukta or
an Up-Lokayukta may conduct any
investigation relating to a matter of
definite public importance in public, if he,
for reasons to be recorded in writing,
thinks fit to do so.

(3) Save as aforesaid, the
procedure for conducting any such
investigation shall be such as the
Lokayukta or, as the case may be, the UpLokayukta considers appropriate in the
circumstances of the case.

(4) The Lokayukta or an UpLokayukta may, in his discretion, refuse
to investigate or cease to investigate any
complaint involving a grievance or, an
allegation, if in his opinion -

(a) the complaint is frivolous or
vexatious, or is not made in good faith; or

(b) there are no sufficient
grounds for investigating or, as the case
may be, for continuing the investigation;
or

(c) other remedies are available
to
the
complainant
and
in
the
circumstances of the case it would be
more proper for the complainant to avail
of such remedies.

(5) In any case where the
Lokayukta or an Up-Lokayukta decides
not to entertain a complaint or to
discontinue any investigation in respect of
a complaint, he shall record his reasons
therefor and communicate the same to the
complainant and the public servant
concerned.

(6)
The
conduct
of
an
investigation under this Act in respect of
any action shall not affect such action, or
any power or duty of any public servant
to take further action with respect to any
matter subject to the investigation."

23. Section 12 of the Lokayukta Act
provides for the evidences that may be
called for in discharge of the official
functions. Section 13 provides for the
manner in which the action can be taken
in the case of complaints by persons who
willfully or maliciously makes false
complaints and Section 13 (6) confers the
power to detain in custody for taking
cognizance of the offence. Section 13 (6)
of the said Act is as under:-

"(6) When any such offence as is
described in Section 175, Section 178, Section
179 or Section 180 of the Indian Penal Code
is committed in the view or presence of the
Lokayukta or Up-Lokayukta, he may cause
the offender to be detained in custody and
may, at any time on the same day, take
cognizance of the offence and, after giving the
offender a reasonable opportunity of showing
cause why he should not be punished under
this section, sentence the offender to simple
imprisonment for a term which may extend to
one month, or to fine which may extend to five
hundred rupees, or to both."

24. Section 17 of the Lokayukta
Act, which is the sum and substance the
30 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet anchor of the arguments made by
the counsel for the applicant provides for
protection to the Lokayukta or the UpLokayukta in respect of anything which in
good faith done or intended to be done
under this Act. Section 17 is as under:-

"17. Protection. - (1) No suit,
prosecution or other legal proceeding shall
lie against the Lokayukta or the UpLokayukta or against any officer, employee,
agency or person referred to in Section 14 in
respect of anything which is in good faith
done or intended to be done under this Act.

(2) No proceedings of the
Lokayukta or the Up-Lokayukta shall be
held bad for want of form and except on
the ground of jurisdiction, no proceedings
or decision of the Lokayukta or the UpLokayukta
shall
be
liable
to
be
challenged, reviewed, quashed or called
in question in any Court."

25. Section 197 Cr.P.C. provides for
prior sanction before any cognizance can
be taken for allegations against Judges
and public servants. Section 197 Cr.P.C.
is 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 [save as
otherwise provided in the Lokpal and
Lokayuktas Act, 2013]-

(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:

[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.]

[Explanation.-For the removal of
doubts it is hereby declared that no sanction
shall be required in case of a public servant
accused of any offence alleged to have been
committed under Section 166-A, Section 166B, Section 354, Section 354-A, Section 354-B,
Section 354-C, Section 354-D, Section 370,
Section 375, Section 376, Section 376-A,
Section 376-C, Section 376-D or Section 509
of the Indian Penal code (45 of 1860).]

(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
3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
31
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 subsection
will
apply
as
if
for
the
expression"Central
Government"
occurring therein, the expression" State
Government" were substituted.

[(3-A) 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.

(3-B) 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."

26. Sri Anupam Mehrotra has relied
upon the definition of the public servant
as defined under Section 21 I.P.C. to
contend that the applicant falls within the
definition of a public servant and as such
no cognizance could have been taken by
the Magistrate without any sanction
which the C.J.M. has done in the teeth of
Section 197 Cr.P.C. Sri Mehrotra further
submits that as the applicant is entitled to
detain any person in confinement by
virtue of power conferred under Section
13 (6) of the Lokayukta Act and as such
he falls within the seventh category as
defining public servant under Section 21
I.P.C. Section 21 I.P.C. is quoted as
under:-

"21. "Public servant".--The
words "public servant" denote a person
falling under any of the descriptions
hereinafter following; namely:-- [***]

Second. --Every Commissioned
Officer in the Military, [Naval or Air]
Forces [***] of India];

er by himself or as a member of
any body of persons, any adjudicatory
functions;]

Fourth. -- Every officer of a
Court of Justice [(including a liquidator,
receiver or commissioner)] whose duty it
is, as such officer, to investigate or report
on any matter of law or fact, or to make,
authenticate, or keep any document, or to
32 INDIAN LAW REPORTS ALLAHABAD SERIES
take charge or dispose of any property, or
to execute any judicial process, or to
administer any oath, or to interpret, or to
preserve order in the Court, and every
person specially authorized by a Court of
Justice to perform any of such duties;

Fifth.
--
Every
juryman,
assessor, or member of a panchayat
assisting a Court of Justice or public
servant;

Sixth. -- Every arbitrator or
other person to whom any cause or
matter has been referred for decision or
report by any Court of Justice, or by any
other competent public authority;

Seventh. --Every person who
holds any office by virtue of which he is
empowered to place or keep any person
in confinement;

Eighth. -- Every officer of [the
Government] whose duty it is, as such
officer, to prevent offences, to give
information of offences, to bring offenders
to justice, or to protect the public health,
safety or convenience;

Ninth. -- Every officer whose
duty it is, as such officer, to take, receive,
keep or expend any property on behalf of
[the Government], or to make any survey,
assessment or contract on behalf of [the
Government], or to execute any revenue
process, or to investigate, or to report, on
any
matter
affecting
the
pecuniary
interests of [the Government], or to make,
authenticate or keep any document
relating to the pecuniary interests of [the
Government], or to prevent the infraction
of any law for the protection of the
pecuniary interests of [the Government]
[***];

Tenth. -- Every officer whose
duty it is, as such officer, to take, receive,
keep or expend any property, to make any
survey or assessment or to levy any rate
or tax for any secular common purpose of
any village, town or district, or to make,
authenticate or keep any document for the
ascertaining of the rights of the people of
any village, town or district;

[Eleventh. --Every person who
holds any office in virtue of which he is
empowered to prepare, publish, maintain
or revise an electoral roll or to conduct
an election or part of an election;]

[Twelfth. --Every person--

(a) in the service or pay of the
Government or remunerated by fees or
commission for the performance of any
public duty by the Government;

(b) in the service or pay of a
local authority, a corporation established
by or under a Central, Provincial or State
Act or a Government company as defined
in section 617 of the Companies Act, 1956
(1 of 1956).] "

27. The expression "cognizance"
and "taking cognizance" came up for
interpretation
before
the
Hon'ble
Supreme
Court
in
the
case
of
Manharibhai Muljibhai Kakadia and
Another v. Shaileshbhai Mohanbhai
Patel and others; (2012) 10 SCC 517,
wherein the Hon'ble Supreme Court has
held as under:-

"24. The procedural scheme in
respect of the complaints made to
Magistrates is provided in Chapter XV of
the Code. On a complaint being made to
a Magistrate taking cognizance of an
3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
33
offence, he is required to examine the
complainant on oath and the witnesses, if
any, and then on considering the complaint
and the statements on oath, if he is of the
opinion that there is no sufficient ground for
proceeding, the complaint shall be dismissed
after
recording
brief
reasons.
The
Magistrate may also on receipt of a
complaint of which he is authorised to take
cognizance proceed with further inquiry into
the allegations made in the complaint either
himself or direct an investigation into the
allegations in the complaint to be made by a
police officer or by such other person as he
thinks fit for the purpose of deciding whether
or not there is sufficient ground for
proceeding. In that event, the Magistrate in
fact postpones the issue of process. On
conclusion of the inquiry by himself or on
receipt of report from the police officer or
from such other person who has been
directed to investigate into the allegations, if,
in the opinion of the Magistrate taking
cognizance of an offence there is no
sufficient ground
for proceeding,
the
complaint is dismissed under Section 203 or
where the Magistrate is of the opinion that
there is sufficient ground for proceeding,
then a process is issued. In a summons case,
summons for the attendance of the accused is
issued and in a warrant case the Magistrate
may either issue a warrant or a summons for
causing the accused to be brought or to
appear before him.

25. Pertinently, Chapter XV
uses the expression, "taking cognizance of
an offence" at various places. Although
the expression is not defined in the Code,
but it has acquired definite meaning for
the purposes of the Code.

34. The word "cognizance"
occurring in various sections in the Code
is a word of wide import. It embraces
within itself all powers and authority in
exercise of jurisdiction and taking of
authoritative notice of the allegations
made in the complaint or a police report
or any information received that an
offence has been committed. In the
context of Sections 200, 202 and 203, the
expression "taking cognizance" has
been used in the sense of taking notice of
the complaint or the first information
report or the information that an offence
has been committed on application of
judicial mind. It does not necessarily
mean issuance of process."

28. A perusal of the order dated
3.9.2015, and the Magistrate recording
the statements under Section 200 Cr.P.C.
and fixing the same for recording of the
statement under Section 202 Cr.P.C.
clearly would amount to fall within the
expression "taking cognizance", as used
in Section 200 Cr.P.C. Furthermore a
perusal of Section 200 Cr.P.C. makes it
clear that the Magistrate after taking
cognizance on an offence shall proceed to
examine on oath the complainant and the
witnesses present, if any. In view thereof,
I have no hesitation in holding that the
Magistrate had taken cognizance of the
allegations levelled against the applicant
by the complainant in the complaint while
passing the order dated 3.9.2015.

29. The next question to be
answered is whether the complaint was
barred under Section 17 (1) of the
Lokayukta Act. The Section 17 (1) of the
Act has been incorporated in the Act to
give protection to the Lokayuktas with a
view to ensure the functioning of the
Lokayukta in a free and fair manner. It
specifically provides the protection of the
actions taken/orders passed in the course
of the powers entrusted upon the
34 INDIAN LAW REPORTS ALLAHABAD SERIES
Lokayukta
under
the
Act
from
prosecution. The said protection granted
under Section 17 (1) has to be strictly
interpreted without which the entire
object of the Lokayukta Act and the
appointment of the Lokayukta would
wipe out the spirit with which the Act has
been enacted. The scheme of the Act
makes it clear that the Lokayukta has to
be a neutral person who is required to
take decision without any fear or favour
and without the kind of protection as
provided under Section 17 (1) of the
Lokayukta Act being there, it cannot be
conceived that the object of the Act
would be fulfilled.

30. The complaint as filed before
the C.J.M. makes allegations against the
applicant with regard to the orders passed
by the applicant under Section 10 (5) of
the Act. The sum and substance of the
allegations is that while passing the said
order, the Lokayukta has relied upon nonexistence evidences and half baked facts
which the applicant had the personal
knowledge of being contrary to the actual
facts. There is no allegation whatsoever
that the order passed was not in good
faith. It is relevant to note that the order
which led to the filing of the complaint is
already a subject matter of writ petition
which is pending, in which no orders have
been passed. A perusal of the complaint
makes it abundantly clear that the
allegations levelled in the complaint were
with regard to the acts of the applicant
while discharging his statutory duties as a
Lokayukta of State of Uttar Pradesh and
thus no legal proceedings could be
instituted
against
the
applicant
as
prohibited under Section 17(1) of the Act
and the Magistrate was clearly barred
from taking cognizance of the offences as
has been done by the Magistrate.

31. Now coming to the question of
prior sanction required under Section 197
Cr.P.C. before taking cognizance of an
offence. Section 197 Cr.P.C. specifically
bars any Court from taking cognizance
against a ''Judge' or a ''Magistrate' or a
''public servant' without sanction of the
Government. A bare reading of provisions
of Section 197 (1) Cr.P.C. makes it clear
that for attracting the provision of Section
197 Cr.P.C. it is essential that (i) the
person accused of an offence should be a
''Judge' or a ''Magistrate' or a ''public
servant' (ii) and he should not be
removable from his Office save by or
with the sanction of the Government.
Thus, if it is established that the person
falls within the category of a ''Judge' or a
''Magistrate' or a ''public servant' and he
cannot be removed from his Office except
with the sanction of the Government, the
provisions of Section 197 Cr.P.C. shall
become applicable forthwith.

32. Section 21 (Seventh Explanation) of
the I.P.C. read with Section 13 (6) of the
Lokayukta Act makes it clear that the
applicant would fall within the definition of
''public servant' and furthermore provision of
Section 6 of the Lokayukta Act make it clear
that a Lokayukta cannot be removed without
following the procedure as prescribed under
Section 6 of the Lokayukta Act and without
the sanction of the Governor. Thus, on both
the counts i.e. the applicant falling within the
definition of a ''public servant' and also ''not
removable except with the sanction of the
Governor', the protection of Section 197 (1)
Cr.P.C. squarely applies to the applicant and
thus on this count also the Magistrate has
erred in taking cognizance of an offence.

33. Sri Mehrotra has extensively
relied upon the observations made by the
Apex Court in the Constitution Bench
3 All. N.K. Mehrotra Vs. Chief Judicial Magistrate, Lucknow & Anr.
35
judgment of Matajog Dubey v. H.C.
Bhari; AIR 1956 SC 44, wherein the
Constitution Bench was considering the
proceedings the proceedings against the
public servant without sanction. The
Constitution Bench decision Matajog
Dobey case clearly enunciates where a
power is conferred or a duty is imposed
by a statute or otherwise and there is
nothing said expressly inhibiting the
exercise of the power or the performance
of the duty by any limitations or
restrictions, it is reasonable to hold that it
carries with it the power of doing all such
acts or employing such means as are
reasonably necessary for such execution
because it is a rule that when the law
commands a thing to be done, it
authorises the performance of whatever
may be necessary for executing its
command. The Court was considering in
the said case the allegation that the
official authorised in pursuance of a
warrant issued by the Income Tax
Investigation Commission in connection
with certain pending proceedings before
it, forcibly broke open the entrance door
and when some resistance was put, the
said officer not only entered forcibly but
tied the person offering resistance with a
rope and assaulted him mercilessly
causing injuries and for such an act, a
complaint had been filed against the
public officers concerned. This Court,
however, came to hold that such a
complaint cannot be entertained without a
sanction of the competent authority as
provided under Section 197 CrPC.