Rajeev Dutta vs State Of Raj And Anr on 10 March, 2026

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    Rajasthan High Court – Jaipur

    Rajeev Dutta vs State Of Raj And Anr on 10 March, 2026

    [2026:RJ-JP:9531]
    
            HIGH COURT OF JUDICATURE FOR RAJASTHAN
                        BENCH AT JAIPUR
    
            S.B. Criminal Miscellaneous (Petition) No. 3377/2018
    
    Rajeev Dutta S/o Shri Indra Kumar Dutta, R/o B-10, JDA Flats,
    Lal Kothi, Jaipur.
                                                                          ----Petitioner
                                        Versus
    1.       The State of Rajasthan through PP
                                                                      ----Respondent

    2. Vijay Sharma S/o Gopal Sharma, R/o SB-2, Akanksha
    Opposite, OTS, JLN Marg, Jaipur

    —-Complainant-Respondent

    SPONSORED

    For Petitioner(s) : Mr. Vibhuti Bhushan Sharma with
    Mr. Sandeep Pathak, Ms. Anindya
    Gupta, Mr. Harshit Tiwari and
    Ms. Suman Kalal
    For Respondent(s) : Ms. Manju Dave, PP
    For Complainant : None Present

    HON’BLE MR. JUSTICE PRAMIL KUMAR MATHUR
    Judgment
    Date of Conclusion of
    Arguments 06.02.2026
    Date on which the judgment
    was reserved 06.02.2026

    Whether the full judgment or
    only the operative part is Full Judgment
    pronounced

    Date of pronouncement
    10.03.2026

    1. The prosecution case originates from a written report lodged

    by the complainant, Shri Vijay Sharma, at Police Station Bajaj

    Nagar, Jaipur. It was alleged that on 06.03.2002, between 5:00 to

    6:00 AM, approximately 50-60 persons, along with several

    vehicles, unlawfully entered the premises in question and

    demolished the boundary wall and gate. Damage was allegedly

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    caused to the property and articles lying there and the persons

    present at the site sustained injuries. It was specifically alleged

    that the said acts were committed at the instance and under the

    directions of the Commissioner. On the basis of the above report,

    FIR No. 101/2002 was registered under Sections 147, 451, 323,

    and 427 of the IPC, and investigation was set in motion.

    After investigation a negative final report was submitted

    before the competent court. Upon a protest petition filed by the

    complainant Vijay Sharma, the learned Magistrate took cognizance

    against the present petitioner on 10.02.2009 which was

    subsequently affirmed by the revisional court vide order dated

    21.05.2018.

    2. The present petition assails the aforesaid orders taking

    cognizance against the petitioner, who at the relevant time was

    serving as an Enforcement Officer in the Jaipur Development

    Authority (JDA). The allegations arise out of proceedings

    undertaken for removal of encroachment from public land.

    3. Heard learned counsel for the parties and perused the

    material available on record.

    4. Learned counsel for the petitioner submits that the petitioner

    was posted as an Enforcement Officer in JDA and was working as

    a public servant. In furtherance of the official order for removal of

    encroachment, the petitioner acted in discharge of his official

    duties. Therefore, the act of the petitioner is protected under

    Section 197 of the Cr.P.C., which provides that where any offence

    is alleged to have been committed by a public servant while acting

    or purporting to act in the discharge of his official duty, prior

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    sanction of the competent authority is required for prosecution. It

    is further submitted that the learned Trial Court as well as the

    Revisional Court have failed to consider the aforesaid mandatory

    legal provision in its proper perspective and have passed the

    impugned orders in violation of law. Therefore, the orders passed

    by the Courts below deserve to be set aside.

    5. Learned counsel for the petitioner has placed reliance upon

    the judgment rendered by Hon’ble Apex Court in the case of

    Suneeti Toteja Vs. State of U.P. & Anr. reported in 2025 SCC

    OnLine SC 433.

    6. Learned Public Prosecutor has vehemently opposed the

    submissions made by learned counsel for the petitioner and

    submitted that the order dated 10.02.2009 passed by the trial

    Court and order dated 21.05.2018 passed by the revisional Court

    are just and proper and warrant no interference by this Court.

    7. The principal question that arises for consideration is

    whether sanction under Section 197 of the Code of Criminal

    Procedure, 1973 was a pre-condition before the learned Magistrate

    could take cognizance.

    8. I have considered the submissions made by both counsel and

    scanned the matter carefully.

    9. For the sake of convenience, the provisions of Section 197

    Cr.P.C. are reproduced hereinunder:

    “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

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    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 166A, section
    166B, section 354, section 354A, section 354B,
    section 354C, section 354D, section 370, section
    375, section 376A, section 376AB, section 376C,
    section 376D, section 376DA, section 376DB 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 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.

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    (3A) 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
    (43 of 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.”

    10. The object and purpose of the aforesaid provision was

    reiterated by the Hon’ble Supreme Court in the case of

    Gurmeet Kaur Vs. Devender Gupta, 2024 SCC OnLine SC

    3761, which reads as follows:

    “22. … the object and purpose of the said provision
    is to protect officers and officials of the State from
    unjustified criminal prosecution while they discharge
    their duties within the scope and ambit of their
    powers entrusted to them. A reading of Section 197

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    of the CrPC would indicate that there is a bar for a
    Court to take cognizance of such offences which are
    mentioned in the said provision except with the
    previous sanction of the appropriate government
    when the allegations are made against, inter alia, a
    public servant. There is no doubt that in the instant
    case the appellant herein was a public servant but
    the question is, whether, while discharging her duty
    as a public servant on the relevant date, there was
    any excess in the discharge of the said duty which
    did not require the first respondent herein to take a
    prior sanction for prosecuting the appellant herein.
    In this regard, the salient words which are relevant
    under sub- section (1) of Section 197 are “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”. Therefore, for the purpose of
    application of Section 197, a sine qua non is that the
    public servant is accused of any offence which had
    been committed by him in “discharge of his official
    duty”. The said expression would clearly indicate
    that Section 197 of the CrPC would not apply to a
    case if a public servant is accused of any offence
    which is de hors or not connected to the discharge of
    his or her official duty.”

    11. Similarly, in Amrik Singh Vs. The State of PEPSU, AIR

    1955 SC 309, The Hon’ble Apex Court explained the scope of

    Section 197 of CrPC as follows:

    “9. … It is not every offence committed by a public
    servant that requires sanction for prosecution under
    Section 197(1) of the Code of Criminal Procedure;
    nor even every act done by him while he is actually
    engaged in the performance of his official duties; but
    if the act complained of is directly concerned with
    his official duties so that, if questioned, it could be
    claimed to have been done by virtue of the office,
    then sanction would be necessary; and that would
    be so, irrespective of whether it was, in fact, a
    proper discharge of his duties, because that would
    really be a matter of defence on the merits, which
    would have to be investigated at the trial, and could

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    not arise at the stage of the grant of sanction, which
    must precede the institution of the prosecution.”

    12. Further, in Indra Devi V. State of Rajasthan and Anr.

    (2021) 8 SCC 768, the Hon’ble Supreme Court has held as

    under:-

    “10. We have given our thought to the submissions of
    learned counsel for the parties. Section 197 of the
    CrPC seeks to protect an officer from unnecessary
    harassment, who is accused of an offence committed
    while acting or purporting to act in the discharge of
    his official duties and, thus, prohibits the court from
    taking cognizance of such offence except with the
    previous sanction of the competent authority. Public
    servants have been treated as a special category in
    order to protect them from malicious or vexatious
    prosecution. At the same time, the shield cannot
    protect corrupt officers and the provisions must be
    construed in such a manner as to advance the cause
    of honesty, justice and good governance. [See
    Subramanian Swamy Vs. Manmohan Singh,
    (2012) 3 SCC 64:]. The alleged indulgence of the
    officers in cheating, fabrication of records or
    misappropriation cannot be said to be in discharge of
    their official duty. However, such sanction is
    necessary if the offence alleged against the public
    servant is committed by him “while acting or
    purporting to act in the discharge of his official duty”

    and in order to find out whether the alleged offence is
    committed “while acting or purporting to act in the
    discharge of his official duty”, the yardstick to be
    followed is to form a prima facie view whether the act
    of omission for which the accused was charged had a
    reasonable connection with the discharge of his
    duties. [See State of Maharashtra Vs. Budhikota
    Subbarao
    , (1993) 3 SCC 339]. The real question,
    therefore, is whether the act committed is directly
    concerned with the official duty.”

    13. As per the aforementioned propositions, the law is well

    settled that where the alleged act has a reasonable nexus with the

    discharge of official duty, the protection under Section 197 Cr.P.C.

    is attracted. The test is not whether the act was strictly lawful, but

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    whether it was performed in the course of official duty or had a

    reasonable connection with such duty. Even if the act is alleged to

    be in excess of authority or involved procedural irregularities, the

    protection would still apply so long as the act is not wholly

    unrelated to official functions.

    14. It is also pertinent to refer the Section 78 of the JDA Act,

    1982, which provides as follows:-

    “Immunity to Authority:- No suit, prosecution or
    other legal proceeding shall be maintainable against
    the Authority or any person acting under the direction
    of the Authority or the Chairmen, member or any
    officer or servant of the Authority, Executive
    Committee, other committees, any Functional Board
    or any body thereof in respect of anything lawfully
    and in good faith and with due care and attention
    done under this Act.”

    15. In the matter of Jaipur Development Authority and

    Anr. v. The Appellate Tribunal and Ors. (S.B. Civil Writ

    Petition No. 7007/2003, decided on 18.10.2023) arising out

    of the same incident, this Court has observed that the proposal

    regarding removal of encroachment from the site in question was

    approved by the Director Law and Commissioner, JDA. It was also

    observed that Enforcement Officer and other officials acted

    pursuant to the directions of the competent authority.

    16. It is not in dispute that at the relevant time the petitioner

    initiated and carried out the said action pursuant to statutory

    powers vested in him and under the directions of the

    Commissioner, which is also evident from the First Information

    Report itself.

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    17. Therefore, from the above factual matrix, it is apparent that

    the petitioner acted under the directions of the Commissioner,

    Jaipur Development Authority and proceeded in a bona fide

    manner while taking action regarding removal of encroachment.

    In such circumstances, the acts complained of cannot be said to

    be wholly unconnected with the discharge of official functions.

    Consequently, the bar contained in Section 197 of the Code of

    Criminal Procedure, 1973 squarely applies and cognizance could

    not have been taken in the absence of prior sanction from the

    competent authority.

    18. The allegations concerning removal of encroachment and the

    consequential exercise of authority arise directly out of the

    statutory duties assigned to the petitioner. Even assuming

    procedural irregularities or excesses, the act cannot be said to be

    wholly dehors the discharge of official duty.

    19. Apart from this, Section 78 of the JDA Act, 1982 provides

    statutory protection to the officers of the Authority for acts done in

    good faith under the said Act. In the absence of any prima facie

    material indicating mala fide exercise of power, continuation of

    criminal proceedings would amount to an abuse of the process of

    law.

    20. In view of the foregoing discussion, this Court is satisfied

    that the impugned proceedings were initiated without complying

    with the mandatory requirement of sanction under Section 197 of

    the Code of Criminal Procedure, 1973 and the acts complained of

    are also protected by Section 78 of the JDA Act, 1982, having

    been performed in the discharge of statutory duties.

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    21. In the absence of prior sanction from the competent

    authority, the learned Magistrate could not have taken cognizance

    of the offence. The bar under Section 197 Cr.P.C. as well as under

    Section 78 of the JDA Act, 1982 goes to the root of jurisdiction.

    22. Accordingly, the order taking cognizance dated 10.02.2009

    passed by trial Court and the order dated 21.05.2018 passed by

    revisional Court are bad in the eye of law and require interference.

    23. Consequently, the order of cognizance dated 10.02.2009

    passed by the trial Court and the order dated 21.05.2018 passed

    by the revisional Court are set aside and all consequential

    proceedings against the petitioner are hereby quashed.

    (PRAMIL KUMAR MATHUR),J

    Arun/42

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