SURESH KUMAR BHIKAMCHAND JAIN versus PANDEY AJAY BHUSHAN AND ORS.

Citation: [1997] SUPP. 5 S.C.R. 524 · Decided: 27-11-1997 · Supreme Court of India · Bench: G.N. RAY · Disposal: Dismissed

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Judgment (excerpt)

A
SURESH KUMAR BHIKAMCHAND JAIN
v.
PANDEY AJAY BHUSHAN AND ORS.
NOVEMBER 27, 1997
B
[G.N. RAY AND G.B. PATTANAIK, JJ.]
Code of Criminal Procedure, 1973-Section 197-Criminal complaint
against Government servants-Sanction for prosecution from government-
C Want of-Plea of bar against cognizance-Raising of-Held, question of
sanction can be considered at any stage of the proceedings-The question
of sanction should not be confused with the scheme of trial-The usual
procedure of leading evidence against the merits of the prosecution case by
way of defence evidence is not required to be followed for bringing materials
in support of plea of bar for want of sanction.
D
Practice and Procedure-Jurisdictional error-Plea against-Held, ca11
be raised at any stage-No bar for producing the relevant documents and
materials for such consideration.
Jalgaon Municipality took a decision to demolish certain unauthorised
encroachment (tapri) pursuant to which the unit of Anti-Encroachment
E Department of Municipality went to demolish the same on July 3, 1993. One
of the Councillors of the Municipality tried to stop the attempt of the
Municipality to demolish the said tapri. Respondents I to 4, the Collector and
District Magistrate, Additional Superintendent of Police, Sub Divisional
Magistrate and Superintendent of Police of Jalgoan respectively were also
F personally present at the site and prevented the staff of the Municipality from
demolishing the tapri. The appellant, who was the President of Jalgaon
Municipality at material point of time, on coming to know about this, went
to the spot and protested against the said action of the respondents in
preventing the Municipality staff from discharging their statutory obligation
to demolish unauthorised construction. It was stated that the Respondents
G did not accede to the protest and persuasion of the appellant and physically
assaulted the appellant, his driver and some other persons including the
~ouncillors who were present at the spot. Subsequently the respondents
issued certain orders viz. prohibiting the demolition work for some time,
suspending the action of the Municipality in removing the encroachment and
H ordering, the Municipality not to use any force. The Jalgaon Municipality
524
SU RESH KUMAR BHIKAMCHAND v. PANDEY A.JAY BHUSHAN 525
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challenged the prohibitory orders before the Atirangabad Bench Of B.ombay A ·
High Court which was subsequently withdrawn. The appellant filed three
writ petitions on July 18, 1993 seeking various reliefs against certain
actions of the State Government.
Meanwhile, the appellant lodged a criminal complaint on 19-7-1993 in
the Court of Chief Judicial Magistrate, Jalgaon against the said respondents B ·
under various provisions of the Indian Penal Code. On the basis ofdepositions
of witnesses of the appell:mt, the trial court issued processes against
respondents l to 3. The trial court, however, dischargedresponderit No. 4
on the ground of lack of sanction.
The respondents l,2 and 3 moved a writ petition before the Aurangabad C
Belich of Bombay High Court challenging the order of the triltl court issuing
process against them. In t_he meanwhile, the respondents.also m-Oved an .
application before the trial court for recalling or the ord~r of issuaricCo.of •., · ..
process which was dismissed: The appelia.nt also pn?ferredCrifuinal lle;i~ion
before the High Court challenging the o'tder ofthe tdal co~rt by ~hich tile . D
complaint against RespolldentNo~ 4 was dismissed on t.he ground oflackof
sanction. The writj1etition flied by.respondents l to 3 was ailowed:an.d the
Criminal Revision Application fll.ed by the apjJellarit was a
is missed by the .
High·Court.
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Aggrieved, the appellant preferred the pres~nt appealliefote the.Court.' E
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On behalf of the appella~t, it was ~ontetide~ th~t the ques~ion ofissiie
of process is to be d_eierlllined by"Consideri~g the.'~ont~ritsofthe complaint
.. arid decidin"g as to whether ; prima facie; such:conlpl~int mlikes out a case
within Hie four col'riers oqhe offences alleged by the complai~ant: If the ·.· ·.·
complaint prima facie disci0ses eognizable offence;.the)riat court ought to · F
take cognizanc~ and issu~ process. bl)!~~~ the c~mplaint ori the face of i.t
discl~ses official action; no sanctio.n for prosecutiori can be insisted at the
·initial stage for initiating a cir~inaLcase against the

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