# Neki Ram Revisionist (In Jail) v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 1447
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-22
- **Case number:** Criminal Revision No. 1856 of 1987
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neki-ram-revisionist-in-jail-v-state-of-u-p-anr-45228
- **Pages:** 9

## Headnote

A. Indian Penal Code, 1860 - Section 466
-
Forgery in respect
of
service
of
summons upon defendant - summon
issued in election petition by 'Election
Tribunal' /Sub Division Officer - Held - S.
466 IPC is also applicable where a
document or certificate is forged &
purported to have been made by a 'public
servant' in official capacity (Para 12)

B. Criminal Procedure Code, 1973 -
Section 195(3) - Applicability to Election
Tribunal - 'Election Tribunal' under U.P.
Panchayat Raj Act, 1947 - not a 'Court' in
terms of Section 195(3) Cr.P.C.

'Election Tribunal' is not a Civil, Revenue or
Criminal Court - Tribunals, included within term
'Court' u/s 195(3) Cr.P.C are such 'Tribunal' as
have been constituted by or under a Central,
Provincial or State Act -& declared by such Act to
be a 'Court' for the purpose of Section 195 Cr.P.C.
15 - Prescribed Authority/'Election Tribunal' has not
been so declared under the provisions of Act, 1947
to constitute a 'Court' for the purpose of Section
195 Cr.P.C (Para 13, 14, 15 & 16)

C. Criminal Procedure Code, 1973 -
Section 197(1) - Prosecution of public
servants
-
Applicability
-
person
concerned should be such a public
servant who can be removed only with
sanction of Central Government or State
Government and not otherwise (Para 20)

Held - Revisionist - a Peon/class IV employee
in the office of Election Tribunal - his service
condition governed by Group 'D' Employees
Service Rules, 1985 - Authority competent to
remove is District Level Officer -& for removal
sanction of State Government not required -
Revisionist does not come within the category
of aforesaid 'public servant' - Section 197(1)
Cr.P.C. is not attracted at all (Para 20 & 21)

D. Criminal Procedure Code, 1973 -
Section 197 - 'acting or purporting to act
in the discharge of his official duty' -
protection is available only when -
alleged act - done by the public servant -
is
reasonably
connected
with
the
discharge of his official duty - alleged act
must fall within the scope and range of
the official duties of the public servant

Revisionist - Peon in the office of Prescribed
Authority/Election Tribunal - duty of serving
summons
upon
defendants/respondents
-
Revisionist made forgery in respect of service of
summons upon defendant and aforesaid forged
document submitted in Tribunal for further
proceedings - Held - Official duty of Revisionist
was to serve summon upon parties - It was not at
all his duty to make a false endorsement
regarding service and forged signature of
addressee - Section 197 is not attracted.

Criminal Revision dismissed. (E-5)

List of cases cited: -

## Text

1448 INDIAN LAW REPORTS ALLAHABAD SERIES

25.

Regarding
conviction
and
sentence for offence punishable under
Section 304/149 I.P.C., the conviction and
sentence for appellants Shyam Lal, Bijai
@ Ram Sajivan and Kallu @ Ram Ujagir
was based on facts and evidence on record.
Hence for them, this appeal merits its
dismissal. For rest of convicts-appellants
Udal @ Udairaj, Awadhraj, Girdhari and
Sudama Prasad, constructive liability for
offence punishable under Section 304/149
I.P.C is not proved beyond reasonable
doubt. Hence, there appeal for this piece of
offence
is
liable
to
be
allowed.
Accordingly, conviction and sentence for
this section against convict appellants
Udal @ Udairaj, Awadhraj, Girdhari and
Sudama Prasad is to be set aside.

26. Accordingly, this appeal is partly
allowed.
Impugned
judgment
of
conviction dated 17.09.2011, for offence
punishable under Sections 147, 323/149
I.P.C. against each of convicts-appellants
is confirmed and appeal for it is being
dismissed.

27. Appeal of Shyam Lal, Bijai @
Ram Sajivan and Kallu @ Ram Ujagir is
being dismissed in toto. The conviction
and sentence awarded against them is
being confirmed.

28. The appeal of convicts-appellants
Udal @ Udairaj, Awadhraj, Girdhari and
Sudama
Prasad
for
conviction
and
sentence for offence punishable under
Sections 304/149 is being allowed on the
basis of benefit if doubt. Their conviction
is being set aside and they are acquitted for
this offences.

29. Keeping in view the provisions
of
section
437-A
Cr.P.C.
convictsappellants Udal @ Udairaj, Awadhraj,
Girdhari and Sudama Prasad are directed
to forthwith furnish a personal bond and
two reliable sureties each in the like
amount to the satisfaction of trial Court
before it, which shall be effective for a
period of six months or till order of appeal
in appellate court, if any, regarding
acquittal for offence punishable under
Section 304/149 I.P.C..

30. Let a copy of this judgment along
with lower court's record be sent back to
the court concerned for amendment of
warrant of conviction and sentence as per
above conviction and sentence and for
immediate compliance.

31. The convicts-appellants Shyam
Lal, Bijai alias Ram Sajivan, Kallu alias
Ram Ujagir, Udal alias Udairaj, Awadhraj,
Girdhari and Sudama Prasad are on bail.
Their sureties are discharged. They shall
surrender before the trial court within
fifteen days from the date of judgment,
where they shall be sent for jail for
suffering sentences awarded to them.
----------
(2020)1ILR 1447

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Revision No. 1856 of 1987

Neki Ram ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Brijesh Sahai, Sri Bhvya Sahai

Counsel for the Opposite Parties:
A.G.A.
1 All. Neki Ram Vs. State of U.P. & Anr.
1449
A. Indian Penal Code, 1860 - Section 466
-
Forgery in respect
of
service
of
summons upon defendant - summon
issued in election petition by 'Election
Tribunal' /Sub Division Officer - Held - S.
466 IPC is also applicable where a
document or certificate is forged &
purported to have been made by a 'public
servant' in official capacity (Para 12)

B. Criminal Procedure Code, 1973 -
Section 195(3) - Applicability to Election
Tribunal - 'Election Tribunal' under U.P.
Panchayat Raj Act, 1947 - not a 'Court' in
terms of Section 195(3) Cr.P.C.

'Election Tribunal' is not a Civil, Revenue or
Criminal Court - Tribunals, included within term
'Court' u/s 195(3) Cr.P.C are such 'Tribunal' as
have been constituted by or under a Central,
Provincial or State Act -& declared by such Act to
be a 'Court' for the purpose of Section 195 Cr.P.C.
15 - Prescribed Authority/'Election Tribunal' has not
been so declared under the provisions of Act, 1947
to constitute a 'Court' for the purpose of Section
195 Cr.P.C (Para 13, 14, 15 & 16)

C. Criminal Procedure Code, 1973 -
Section 197(1) - Prosecution of public
servants
-
Applicability
-
person
concerned should be such a public
servant who can be removed only with
sanction of Central Government or State
Government and not otherwise (Para 20)

Held - Revisionist - a Peon/class IV employee
in the office of Election Tribunal - his service
condition governed by Group 'D' Employees
Service Rules, 1985 - Authority competent to
remove is District Level Officer -& for removal
sanction of State Government not required -
Revisionist does not come within the category
of aforesaid 'public servant' - Section 197(1)
Cr.P.C. is not attracted at all (Para 20 & 21)

D. Criminal Procedure Code, 1973 -
Section 197 - 'acting or purporting to act
in the discharge of his official duty' -
protection is available only when -
alleged act - done by the public servant -
is
reasonably
connected
with
the
discharge of his official duty - alleged act
must fall within the scope and range of
the official duties of the public servant

Revisionist - Peon in the office of Prescribed
Authority/Election Tribunal - duty of serving
summons
upon
defendants/respondents
-
Revisionist made forgery in respect of service of
summons upon defendant and aforesaid forged
document submitted in Tribunal for further
proceedings - Held - Official duty of Revisionist
was to serve summon upon parties - It was not at
all his duty to make a false endorsement
regarding service and forged signature of
addressee - Section 197 is not attracted.

Criminal Revision dismissed. (E-5)

List of cases cited: -

1. L. Chandra Kumar Vs. Union of India, AIR
1997 SC 1125

2. Devinder Singh and others vs. State of
Punjab through CBI (2016) 12 SCC 87

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard Sri Bhvya Sahai, Advocate,
holding brief of Sri Brijesh Sahai, learned
counsel for revisionist, learned A.G.A. for
State of U.P. and perused the record.

2. This criminal revision under
Section 401 read with Section 397 Cr.P.C.
has been filed aggrieved by judgment and
order dated 03.12.1987 passed by Sri
Y.K.Singhal, Vth Additional District and
Sessions Judge, Saharanpur, in Criminal
Appeal No.51 of 1985 whereby appeal
was dismissed and judgment and order
dated 07.02.1985 passed by Sri Vishram
Singh, Magistrate Nakur, Saharanpur in
Case No.502 of 1982 by which Revisionist
was convicted under Sections 466 and 471
IPC and sentenced to undergo one year
simple imprisonment and fine of Rs.100
under Section 466 IPC, and, six months'
simple imprisonment and fine of Rs.50/-
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
under
Section
471
IPC,
has
been
confirmed. Both the sentences were
directed to run concurrently.

3. Learned counsel for Revisionist
contended that, if a document of a Court is
allegedly forged, no cognizance can be
taken under Section 466 IPC unless
complaint is made by Court itself, which
has not been done in the present case.
Therefore, entire proceedings are illegal.
He further submitted that Revisionist was
a 'Peon' in Election Tribunal, who was
deputed duty of serving summons and this
was a part of an 'official duty' to be
discharged by him, thus, without sanction
under Section 195 or 197 Cr.P.C.,
cognizance could not have been taken.
Since in the present case, no such sanction
was obtained, therefore, entire proceedings
are illegal.

4. Learned A.G.A. submitted that
Section 466 IPC is applicable where a
document is forged, and purported to have
been made by a 'public servant' in official
capacity and therefore, it is rightly applied.
Further Section 195 Cr.P.C. has no
application since 'Election Tribunal' is not
a 'Court' in terms of Section 195(3)
Cr.P.C. Section 197 is also inapplicable
since Revisionist is not a person who is to
be removed with the sanction of State or
Central Government.

5. I have examined the submissions
advanced by learned counsel for parties
and perused the record.

6. Sections 466 and 471 IPC, as
applicable at the relevant time, reads as
under :

"466. Forgery of record of
Court or of public register, etc.-Whoever
forges a document, purporting to be a
record or proceeding of or in a Court of
Justice, or a register of birth, baptism,
marriage or burial, or a register kept by a
public servant as such, or a certificate or
document purporting to be made by a
public servant in his official capacity, or
an authority to institute or defend a suit,
or to take any proceedings therein, or to
confess judgment, or a power of attorney,
shall be punished with imprisonment of
either description for a term which may
extend to seven years, and shall also be
liable to fine."

"471. Using as genuine a
forged document.-Whoever fraudulently
or dishonestly uses as genuine any
document which he knows or has reason
to believe to be a forged document, shall
be punished in the same manner as if he
had forged such document."

7. On perusal of above provisions, I
find that in order to attract Section 466
IPC, following ingredients have to be
shown :

(i) The document is question was
a forged document.

(ii) It was forged by Accused;

(iii) Such document is purported
to be :

(a) A record of the proceeding of
Court of Justice;

(b) A Register of Birth, baptism,
marriage or burial.

(c) A Register kept by public
servant.

(d) A certificate or document
purporting to be made by a public
servant in his official capacity.

(e) An authority to institute or
defend a suit or take any proceeding
therein or to confess judgment, or

(f) A power of attorney.
1 All. Neki Ram Vs. State of U.P. & Anr.
1451

8. The term 'Forgery' has been
defined in Section 463 IPC and what
would constitute 'making a false document'
has been defined in Section 464 IPC.
Sections 463 and 464 IPC, as applicable at
the relevant time, read as under :-

"463. Forgery.-Whoever makes
any false document or part of a document
with intent to cause damage or injury, to
the public or to any person, or to support
any claim or title, or to cause any person
to part with property, or to enter into any
express or implied contract, or with intent
to commit fraud or that fraud may be
committed, commits forgery."

"464.
Making
a
false
document.-A person is said to make a
false document-

First-Who
dishonestly
or
fraudulently makes, signs, seals or
executes a document or part of a
document, or makes any mark denoting
the execution of a document, with the
intention of causing it to be believed that
such document or part of document was
made, signed, sealed or executed by or by
the authority of a person by whom or by
whose authority he knows that it was not
made, signed, sealed or executed, or at a
time at which he knows that it was not
made, signed, sealed or executed; or

Secondly.--Who, without lawful
authority, dishonestly or fraudulently, by
cancellation
or
otherwise,
alters
a
document in any material part thereof,
after it has been made or executed either
by himself or by any other person, whether
such person be living or dead at the time
of such alteration; or

Thirdly--Who
dishonestly
or
fraudulently causes any person to sign,
seal, execute or alter a document, knowing
that such person by reason of unsoundness
of mind or intoxication cannot, or that by
reason of deception practised upon him,
he does not know the contents of the
document or the nature of the alteration."

9. In the present case, record shows
that an Election Petition No.53 of 1982
was instituted by Randu against Jeevad
and
others
before
Election
Tribunal/Presiding Officer under U.P.
Panchayat Raj Act, 1947 (hereinafter
referred to as "Act, 1947"). Summons
were issued. Neki Ram, Revisionist who
was Peon in the office of Prescribed
Authority/Election Tribunal was deputed
duty
of
serving
summons
upon
defendants/respondents in the aforesaid
Election Petition.

10. As per Section 12-C of Act, 1947
read with Rule 24 of U.P. Panchayat Raj
Rules, 1947 "hereinafter referred to as
"Rules, 1947"), Sub-Division Officer is
Prescribed
Authority
before
whom
election petition can be presented and he
constitute Election Tribunal. Appointment
of a Class IV employee in the office of
Sub-Divisional Officer is governed by
recruitment, appointment and condition of
service of Class IV employees i.e. Group
'D'
Employees
Service
Rules,
1985
(hereinafter referred to as "Rules, 1985"),
which is a Rules framed under Proviso to
Article 309 of Constitution of India.
Appointing Authority of a Class IV
employee in district level offices and
offices subordinate thereto is a District
Level Officer.

11. It was alleged that Randu,
accused, in collusion with other coaccused got an endorsement made by
Revisionist on the summons that copy of
summons alongwith Election Petition
(plaint) has been served upon Jeevad.
Actual endorsement made, reads as under :
1452 INDIAN LAW REPORTS ALLAHABAD SERIES

^^Jheku th ,d fdrk leu e; vthZ
nkos ds tho.k dks ns fn;k x;k^^

"Sir, one summon alongwith
plaint was handed over to Jeevad."

(English Translation by Court)

12. Jeevad was illiterate. His
signatures were forged on the summons.
The said summons was submitted in
Election
Tribunal.
For
this
forgery,
Revisionist and others were tried in Case
No.502 of 2002 under Sections 466, 471,
120B
IPC.
Trial
Court
found
that
Revisionist has made forgery in respect of
service of summons upon Jeevad and
aforesaid forged document was submitted
in
Election
Tribunal
for
further
proceedings of Election Petition. Court,
therefore, found that it was a 'forged'
document purported to be made by a
'public
servant'
in
official
capacity.
Aforesaid document amounts to a forged
certificate of service, hence Section 466
IPC is attracted. It cannot be said that
Section 466 IPC is applicable only to a
document of a Court or document or
proceeding of a Court but it includes
within its ambit the documents or
certificate purporting to be made by a
'public servant' in his official capacity.
This otherwise submission advanced by
Sri Sahai is rejected.

13. Now I come to argument relating
to sanction. In order to attract Section 195
Cr.P.C., it has to be seen whether 'Election
Tribunal' can be said to be 'Court' or not.
Sub-section (3) of Section 195 Cr.P.C.
clearly excludes 'Election Tribunal' from
being treated as a 'Court'. Section 195(3)
Cr.P.C. reads as under :-

"In Clause (b) of sub-section (1),
the term "Court" means a Civil, Revenue
or Criminal Court, and includes a
tribunal constituted by or under a
Central, Provincial or State Act if
declared by that Act to be a Court for the
purposes
of
this
section."
(emphasis added)

14. Section 195 Cr.P.C. will be
attracted only when an Election Tribunal
can be said to be a 'Court' within the
meaning of Section 195(3). It could not be
disputed
by
learned
counsel
for
Revisionist that 'Election Tribunal' is not a
Civil, Revenue or Criminal Court. He,
however,
submitted
that
it
include
'Tribunal' within its ambit. But I find that
Tribunals, included within term 'Court'
defined under Section 195(3) Cr.P.C., are
of restricted nature namely such 'Tribunal'
must have been constituted by or under a
Central, Provincial or State Act and
declared by such Act to be a 'Court' for the
purpose of Section 195 Cr.P.C.

15. It is not shown that Prescribed
Authority/'Election Tribunal' has been so
declared under the provisions of Act, 1947
to constitute a 'Court' for the purpose of
Section 195 Cr.P.C. Distinction between
'Court' and 'Tribunal' has been considered
by a seven Judges judgment in L.
Chandra Kumar Vs. Union of India,
AIR 1997 SC 1125.

16. In common parlance, it cannot be
doubted that 'Election Tribunal' is a
Tribunal constituted by a Provincial Act
i.e. Act, 1947 but in absence of any
declaration made by said Act to treat
'Election Tribunal' as a Court, in my view,
Section 195 Cr.P.C. is not attracted.

17. Thus argument advanced with
reference to Section 195 Cr.P.C. i.e. first
issue is answered against revisionist.
1 All. Neki Ram Vs. State of U.P. & Anr.
1453

18. Now coming to issue of want of
sanction under Section 197 (1) Cr.P.C.,
here also I find that it has no application in
the case in hand. Section 197 Cr.P.C. reads
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 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.

(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.

(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.
1454 INDIAN LAW REPORTS ALLAHABAD SERIES

(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."

19. It is admitted that Sub-Section
(2) has no application herein. Thus, I
confined my scrutiny to Section 197(1)
only. Essential conditions to be satisfied
for attracting Section 197(1) Cr.P.C, are -

(i) Offence mentioned therein is
committed by public servant, Judge or
Magistrate;

(ii) The public servant employed
in connection with the affairs of the Union
or a State is not removable from his office
save by or with the sanction of the Central
Government or the State Government as
the case may be.

(iii) 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
is not merely a cloak for doing the
objectionable act.

(iv) If in doing his official duty,
he acted in excess of his duty, but there is
reasonable connection between the act and
the performance of the official duty, the
excess will not be sufficient ground to
deprive the public servant of protection.

(v) The question is not as to the
nature of the offence such as whether the
alleged offence contained an element
necessarily dependent upon the offender
being a public servant, but whether it was
committed by a public servant acting or
purporting to act as such in discharge of
his official capacity.

(vi) It must be shown that the
official concerned was accused of an
offence alleged to have been committed by
him while acting or purporting to act in the
discharge of his official duty. The act must
fall within the scope and range of the
official duties of the public servant
concerned. It is the quality of the act
which is important and the protection of
this section is available if the act falls
within the scope and range of his official
duty.

(vii) The act can be performed in
discharge of his official duty as well as in
dereliction thereof.

20. Thus, the first condition to apply
while attracting Section 197 Cr.P.C. is that
not only person concerned must be a
'public servant' but also he should be such
a public servant who can be removed only
with sanction of Central Government or
State Government and not otherwise.

21. In the present case, Revisionist is
a Class IV employee. It could not be
shown by learned counsel for Revisionist
that
Class
IV
employee
in
State
Government service is liable to be
removed only with the sanction of State
Government. On the contrary, I find that
statutory rules have been framed in respect
of Class IV employees working in various
departments and district level. Authority
competent to appoint and remove Class IV
employees in Districts are District Level
Officers.

22.
 Therefore,
the
very
first
condition that in order to attract Section
197(1), public servant must be such whose
removal is possible only with sanction of
State
Government
is
not
attracted.
Revisionist does not come within the
category of aforesaid 'public servant'.
Hence, Section 197(1) Cr.P.C. is not
attracted at all.
1 All. Neki Ram Vs. State of U.P. & Anr.
1455

23. In order to attract provision
relating to sanction, Supreme Court has
considered the matter at length in
Devinder Singh and others vs. State of
Punjab through CBI (2016) 12 SCC 87
and has culled out certain principles as
under :

"I. Protection of sanction is an
assurance to an honest and sincere officer
to perform his duty honestly and to the
best of his ability to further public duty.
However,
authority
cannot
be
camouflaged to commit crime.

II. Once act or omission has
been found to have been committed by
public servant in discharging his duty it
must
be
given
liberal
and
wide
construction so far its official nature is
concerned. Public servant is not entitled to
indulge in criminal activities. To that
extent Section 197 Code of Criminal
Procedure has to be construed narrowly
and in a restricted manner.

III. Even in facts of a case when
public servant has exceeded in his duty, if
there is reasonable connection it will not
deprive him of protection Under Section
197 Code of Criminal Procedure There
cannot be a universal Rule to determine
whether there is reasonable nexus between
the act done and official duty nor it is
possible to lay down such rule.

IV. In case the assault made is
intrinsically connected with or related to
performance of official duties sanction
would be necessary Under Section 197
Code of Criminal Procedure, but such
relation to duty should not be pretended or
fanciful claim. The offence must be
directly and reasonably connected with
official duty to require sanction. It is no
part of official duty to commit offence. In
case offence was incomplete without
proving, the official act, ordinarily the
provisions of Section 197 Code of
Criminal Procedure would apply.

V. In case sanction is necessary
it has to be decided by competent authority
and sanction has to be issued on the basis
of sound objective assessment. The court is
not to be a sanctioning authority.

VI.
Ordinarily,
question
of
sanction should be dealt with at the stage
of taking cognizance, but if the cognizance
is taken erroneously and the same comes
to the notice of Court at a later stage,
finding to that effect is permissible and
such a plea can be taken first time before
appellate Court. It may arise at inception
itself. There is no requirement that
accused must wait till charges are framed.

VII. Question of sanction can be
raised at the time of framing of charge and
it can be decided prima facie on the basis
of accusation. It is open to decide it afresh
in light of evidence adduced after
conclusion of trial or at other appropriate
stage.

VIII. Question of sanction may
arise at any stage of proceedings. On a
police or judicial inquiry or in course of
evidence during trial. Whether sanction is
necessary or not may have to be
determined from stage to stage and
material brought on record depending
upon facts of each case. Question of
sanction can be considered at any stage of
the proceedings. Necessity for sanction
may reveal itself in the course of the
progress of the case and it would be open
to accused to place material during the
course of trial for showing what his duty
was. Accused has the right to lead
evidence in support of his case on merits.

IX. In some case it may not be
possible to decide the question effectively
and finally without giving opportunity to
the defence to adduce evidence. Question
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
of good faith or bad faith may be decided
on conclusion of trial. "

24. Applying above principles, when
I examined the facts of this case, it cannot
be doubted that official duty of Revisionist
was to serve summon upon parties to
whom summons were issued. It was not at
all his duty to make a false endorsement
on the document regarding service and
also forged signature of addressee. The
nature of allegation and charge found
proved against revisionist does not come
within the official duty of Revisionist and
in this regard, I find no manner of doubt
that
Section
197
is
not
attracted.
Therefore, in respect of issue no.2 also I
find no force in the submission.

25. However, whether, as a matter of
fact, act of accused-Revisionist can be said
to be in discharge of official duties or not
require evidence. Therefore, I am not
expressing any final opinion on this
aspect. Even otherwise, this aspect has a
little relevance in the present case for the
reason that accused-revisionist having not
satisfied the category of 'public servant' on
which Section 197(1) Cr.P.C. is applicable
therefore, requirement of sanction in the
case
of
accused-Revisionist
is
an
imaginary issue. I, therefore, reject the
submission
advanced
otherwise
and
answer issue-2 against Revisionist.

26. No other argument has been advanced.

27. Dismissed.

28. Interim order, if any, stands
vacated.
----------
(2020)1ILR 1455

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2019

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 4239 of 2019

Gyan Prakash Agrawal ...Revisionist
Versus
Shri Babu Khan & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Vikas Srivastava

Counsel for the Opposite Parties:
A.G.A., Sri Balesh Tripathi, Sri Saumitra
Dwivedi, Sri K.M. Mishra, Sri Jitendra
Kumar Pandey

A.
Negotiable Instruments Act,
1881
-
Section 148 - Deposit of fine not less than
20% is condition precedent for admission of
appeal.

B. Negotiable Instruments Act, 1881- Section
148
-
Applicability
to
complaint
filed
prior to 1.9.2018-Section 148 of the N.I. Act
can be applied to complaint filed prior to
1.9.2018.

C. Criminal Procedure Code, 1973 -
Section 357(2) - Its Applicability to NI
Act - not applicable in an appeal by the
drawer against conviction under section
138 of Negotiable Instruments Act.

Revisionist challenged the order of Session court
directing the Appellant to deposit 30% of the
amount of fine / compensation pending appeal -
Held - Perfectly justified order. (Para 23)

Criminal Revision dismissed. (E-5)

List of cases cited: -

1.Vipin Kumar Vs St. of UPAIRONLINE 2018 AL
L 4035

2. Dilip S. Dhanukar Vs Kotak Mahindra Bank
(2007) 6 SCC 528