• Filing of a written complaint & recording of an FIR= permissible

Written complaint lodged with P S in 2002 & FIR recorded in 2004. FIR sent to Ld. Trial Court in 2005, Charge sheet filed in 2008 without any copy of any sanction u/s 197 Cr P C. Charge framed u/s 467,468,471 & 420 IPC in the year 2010. As per records of the Trial Court, the Prosecution side did not file any prayer before the Ld. Court for any extension of time for the inordinate delay in filing the charge sheet in 2008. The sole Seizure List prepared on plain sheets of papers signed by one of the I Os but without any Official Dresination seal, without any official endorsement of the Officer-in-charge of the concerned Police Station and without any ENDORSEMENT of the Magistratrete of the Ld. Trial Court.
Asked 7 years ago in Criminal Law
Religion: Hindu

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5 Answers

Is this matter against the public servant?

Nadeem Qureshi
Advocate, New Delhi
6307 Answers
302 Consultations

4.9 on 5.0

The case seems to be the outcome of ost sloppy and irregular kind of investigation which lacks sanctity in every possibles step.

Though the perusal of the charge sheet would have placed me in more better to comment on future line of action, I can readily advise to go for quashing which seems to have much merit or even discharge .

If you are from kolkata you may feel free to contact for future course of action on this account.

All the best.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

In a recent decision in Rajib Ranjan and Ors. v. R. Vijaykumar (2015) 1 SCC 513, at paragraph-18, this Court has taken the view that...

"even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted".

Public servants have, in fact, been treated as special category Under Section 197 Code of Criminal Procedure, to protect them from malicious or vexatious prosecution. Such protection from harassment is given in public interest; the same cannot be treated as shield to protect corrupt officials. In Subramanian Swamy v. Manmohan Singh and Anr.(2012) 3 SCC 64, at paragraph-74, it has been held that the provisions dealing with Section 197 Code of Criminal Procedure must be construed in such a manner as to advance the cause of honesty, justice and good governance. To quote:

74. ...Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption.

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

1. These are certainly loopholes in the said case left by the prosecution to your advantage.

2. Take advantage of these faults committed by the prosecution while contesting the case.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

You might as well hire a lawyer and move towards private prosecution. the Enforcement Department does not seem to be interested in the case. You might need to act privately.

Saptarshi Banerjee
Advocate, Kolkata
220 Answers
6 Consultations

4.5 on 5.0

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