The question regarding the legal assistance to be given to the Government servant like the Forest Officers by the Government is governed by the Rule 109 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. The said rule clearly permits the Government to grant legal assistance to its officers in civil or criminal proceedings in respect of the acts done in good faith in the discharge of their official duties. The relevant portion of Rule 109 of the above Rules of 1984 reads as under:
"109. Grant of legal assistance to Government servants in Civil and Criminal Proceedings.---(1) Government in the administrative department may grant legal assistance to its officers, who have to institue Civil or Criminal Proceedings in respect of acts done, in good faith, by or purported to have been done by them in the discharge of their official duties or to defend such proceedings in which they have been sued by name and designation, or in their personal capacity, for the acts done by them in the discharge of their official duties and it appears to Government in the administrative department that they have acted in good faith and in due discharge of their official duties. Such assistance may consist of-
a) engagement of a Counsel at Government expense to appear in such proceedings on behalf of the officer concerned; or
b) reimbursement to the officer concerned of whole or part of the expenses incurred by him in such proceedings."
The impugned order of the Sessions Court disallowing the District Government Pleader to appear for the petitioners-accused is, therefore, not tenable in law.
Bombay High Court
State Of Maharashtra & Others vs Tukaram Yashwant Dindorle on 27 September, 1999
Equivalent citations: 2000 (5) BomCR 533, 2000 BomCR Cri, 2000 (1) MhLj 388
1. The State has preferred this writ petition against the order of III Additional Sessions Judge, Kolhapur dated 10-1-1992 in Criminal Revision Application Nos. 116/88 and 149/88.2. The two questions which are raised in this writ petition are, (1) whether the petitioners accused who are the Forest Officers could make an application for their discharge on the ground of want of sanction under section 197 of Cr.P.C. in a private complaint filed against them for the alleged offence committed in discharge of their official duties and (2) whether the Government Pleader could defend them in the trial Court.
3. The learned JMFC, Malkapur dismissed their application (Exhibit 14) for discharge on the ground that it was not the stage for making application for discharge and that the said application could only be considered at the time of framing of the charge but upheld the right of the Government Pleader to appear for the accused who are the Forest Officers. When the matter was taken in revision before the Sessions Court, Kolhapur, the learned III Additional Sessions Judge upheld the order of the learned JMFC with regard to the non-maintainability of the application made by the petitioners but held that the District Government Pleader was not entitled to appear for the petitioners in a private complaint. In my view the order of the Sessions Court on both the points is wrong and, therefore, is required to be set aside.
4. The brief facts leading to the present petition are as follows:
The respondent-original complainant had cut trees in the forest land without requisite permission from the Tahsildar under section 3 of the Maharashtra Felling of Tress Act 1964. He had also not taken transit pass under section 4 of the Indian Forests Act read with the Rule 66 of the Bombay Forests Rules 1942 while transporting timber of forest produce. The petitioners-Forest Officers stopped the complainant from illegally cutting of the trees and action was taken against him under section 52 of the Indian Forests Act. The forest produce were attached under panchanama dated 12-8-1987 and the property was transported to the Government Depot at Amba and a show-cause notice was issued to the complainant. The respondent complainant, therefore, filed a private complaint against the petitioners in the Court of JMFC who issued the process to the petitioners. On the first day, after the process was issued, the petitioners Forest Officers filed application Exhibit 14 for discharge for want of sanction under section 197 of Cr.P.C. Both the courts have dismissed that application on the ground that it was premature and could be considered only at the time of framing of the charge. The Sessions Court has observed that whether the sanction is required or not depends on the question whether the officers were acting in the discharge of their official duties or not and the said question can be considered only at the time of trial.
5. Under section 197 of Cr.P.C. the public servant cannot be prosecuted without obtaining the prior sanction of the authorities competent to accord the sanction in that behalf. Thus in such cases the cognizance cannot be taken by the Court without the requisite sanction in that behalf and, therefore, the question pertains to the jurisdiction or the competence of the Court to entertain such complaint which, in my view, has to be considered at the threshold. The Sessions Court is also not right when it observed that the said question can be decided only at the time of trial. The Court has to see whether the accused, who are the Forest Officers, were acting in the discharge of their duties or not before entertaining the complaint. If the accused were acting in the discharge of their official duties prosecution could not be lodged against them without prior sanction under section 197 of Cr.P.C. When it is not in dispute that the accused were Forest Officers at relevant time it cannot be doubted that they were acting in discharge of their official duties. Consequently the prosecution lodged without prior sanction under section 197 of Cr.P.C. cannot be sustained in law and is liable to be quashed and set aside.
6. I am fortified in my view by the recent decision of the Supreme Court in the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and others, wherein it is
observed that the plea of bar against cognizance for want of sanction under section 197 of Cr.P.C. touches jurisdiction of the Court and hence can be raised at any stage of the proceedings and the accused cannot be asked to wait till framing of the charges or cross-examination of prosecution witnesses. The orders of the lower courts in that respect are; therefore, clearly illegal and liable to be set aside.
7. The question regarding the legal assistance to be given to the Government servant like the Forest Officers by the Government is governed by the Rule 109 of the Maharashtra Law Officers (Appointment, Conditions of Service and Remuneration) Rules, 1984. The said rule clearly permits the Government to grant legal assistance to its officers in civil or criminal proceedings in respect of the acts done in good faith in the discharge of their official duties. The relevant portion of Rule 109 of the above Rules of 1984 reads as under:
"109. Grant of legal assistance to Government servants in Civil and Criminal Proceedings.---(1) Government in the administrative department may grant legal assistance to its officers, who have to institue Civil or Criminal Proceedings in respect of acts done, in good faith, by or purported to have been done by them in the discharge of their official duties or to defend such proceedings in which they have been sued by name and designation, or in their personal capacity, for the acts done by them in the discharge of their official duties and it appears to Government in the administrative department that they have acted in good faith and in due discharge of their official duties. Such assistance may consist of-
a) engagement of a Counsel at Government expense to appear in such proceedings on behalf of the officer concerned; or
b) reimbursement to the officer concerned of whole or part of the expenses incurred by him in such proceedings."
The impugned order of the Sessions Court disallowing the District Government Pleader to appear for the petitioners-accused is, therefore, not tenable in law.
8. In the result, the petition is allowed and the rule is made absolute in terms of prayer Clause (b) of the petition. The prosecution against the petitions Forest Officers is quashed and set aside.
9. Petition allowed.
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