HYDERABAD: Taking cognizance of offence against a judge or a public servant without previous sanction of the court or of the government concerned as required under Section 197 of CrPC (prosecution of judges and public servants) is not legally sustainable. When taking cognizance of offence itself is unsustainable, forcing the accused to face the rigour of criminal trial is only a futile exercise. Further, the courts will not appreciate if the complainant approaches the court after a lapse of several years for seeking prosecution of the government employees accused of erring.
In a dispute before the Hyderabad High Court, a police officer (petitioner) filed a case assailing the order rejecting his plea that he be discharged from the offence punishable under Section 326 of IPC (voluntarily causing grievous hurt by dangerous weapons) pending before the chief metropolitan magistrate court in Vijayawada, Krishna district, Andhra Pradesh. Basing on the oral and documentary evidence available on record, the trial court had arrived at the conclusion that the material placed before it was prima facie sufficient to proceed against the petitioner officer.
The case of the complainant (respondent) is that the police officer fired on him without giving any caution on the day of the alleged incident in May 1991 when curfew was in force. He received grievous bullet injury on his back. Having failed to get compensation from the government, he filed a complaint against the police officer after 15 years from the date of alleged incident. His contention was that the sentence prescribed for offence under Section 326 of IPC was more than three years and there was, therefore, no period limitation to lodge a complaint in respect of an offence punishable with more than three years' imprisonment in view of Section 468 of CrPC (bar on taking cognizance after lapse of the period of limitation).
As for the contentions of the petitioner, the act alleged to have been committed by him falls within the purview of discharge of his official duty, which fact was not considered by the trial court in proper perspective. The trial court had committed a grave error by taking cognizance of the offence under Section 326 of IPC without prior sanction for his prosecution. The trial court ought to have discharged him on the ground of abnormal delay in lodging the complaint.
Justice T Sunil Chowdary said that one had to assign reasons, much less cogent and valid reasons, for non-filing of complaint within a reasonable time. Simply because there is no period of limitation that itself would not enable the parties to file vexatious complaints with an ulterior motive to force the accused to face the rigour of criminal trial. Nowhere is it mentioned that due to reasons beyond his control or due to legal disability he could not approach the court within a reasonable time in order to justify his action to approach the court after a lapse of 15 years. If the courts allow the complaints without scrutinizing the reasons for abnormal and unexplained delay, it would certainly amount to encouraging the litigant public to file the complaints using the court as a forum to settle their scores, which they failed to achieve by other legal means,. "Having regard to the facts and circumstances of the case, I am of the considered view that the complainant approached the court after a lapse of 15 years, having failed to get compensation from the government", the judge observed.
While concluding that the petitioner's plea was a fit case to discharge him from the case for offence under Section 326 of IPC, the judge opined that taking of cognizance of offence by the trial court under Section 326 of IPC without prior sanction for prosecution of the petitioner was legally unsustainable, and proceeding with the trial was a futile exercise. The judge allowed the petition by setting aside the order of the trial court.