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
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(Uploaded on 10/03/2026 at 04:54:28 PM)
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[2026:RJ-JP:9531] (4 of 10) [CRLMP-3377/2018]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(Uploaded on 10/03/2026 at 04:54:28 PM)
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[2026:RJ-JP:9531] (6 of 10) [CRLMP-3377/2018]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(Uploaded on 10/03/2026 at 04:54:28 PM)
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[2026:RJ-JP:9531] (7 of 10) [CRLMP-3377/2018]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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