Indresh Verma vs Addil. Chief Judicial Magistrate ... on 2 August, 2024

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Allahabad High Court

Indresh Verma vs Addil. Chief Judicial Magistrate ... on 2 August, 2024

2. By means of the present application, the applicant has assailed the order dated 11.08.2023 passed by the Additional Chief Judicial Magistrate, Court No.17 Sultanpur in Criminal Case No.3094/2022 (Indresh Verma Versus Girdhari Lal and others). The order impugned is extracted herein-below:

"???????? ??? ???? ????? ????? ????

??????? ?????? ????? ???? ?? ????? ??? ???? ????? ????? ??? ?? ?? ???????? ?????? ??? ??????? ???????? ???? ??0-437 ??????-6 ????? ?? ???? ????? ?????-???? ????, ????-???????, ?????-??????, ??????-?????????, ????-????????? ?? ???? ????? ??? ?? ??? ???? ?? ?? ?????? 11-02-2019 ?? ????????? ?????? ???? ??????? ??? ???? ?????? ??????? ?? ??? ???????? ?? ??? ???? ?????? ? ??? ??????? ??????? ?? ???? ?? ??????? ?? ????? ??????, ??????? ???? ?????? ?????? ? ???????? ???????? ????? ?? ????????? ???? ???????? ?????? ?? ????? ?? ???? ?? ???? ?? ???????? ???? ?? ????? ???????? ?? ??????? ?? ??? ?????? ????? ??????? ?????? ?????? ???? ?? ???? ??? ????? ?? ????? ???? ?? ?? ???? ??? ?????? ???????? ? ??????? ?????? ???? ??? ????? ???? ???? ????????? ?? ??????? ?? ????? ???? ??? ?? ??? ????-197 ????????? ???? ??? ???? ?????? ???? ??? ????? ?? ?????? ??, ????? ???? ??? ?? ??????? ?? ?? ?? ???? ?????? ?? ???? ??? ?? ?? ?? ???? ???? ??????? ?? ??????? ??? ????? ?? ??? ?? ?? ???? ??? ???? ?? ??????? ????? ????? ?????? ??????? ???? ?? ???????? ?? ???? ??? ??????? ?????? ???? ????? ?? ???? ??? ??? ??? ??????? ?? ????????? ???? ???? ?? ?? ?? ???? ??? ?????? ?? ??????? ?????? ???? ???? ????? ????? ?? ???????? ????? ????? ???????? ?????? ?????? ????????? ?????? 11-09-2023 ?? ??? ???"

3. A perusal of the order indicates that the applicant preferred an application under Section 156(3) Cr.P.C. against the revenue officials and the trial Court, after considering the material available on record, treated the application as complaint case and directed the applicant to record his statement as also the statement of witnesses of the fact in terms of Section(s) 200 and 202 Cr.p.C.

4. It further appears from the record including the order, quoted above, and allegations levelled in the application under Section 156(3) Cr.P.C. particularly paras 3 and 4 that after considering the contents of application under Section 156(3) Cr.P.C. directed the applicant to produce the order of sanction to prosecute the officials of the Revenue Department as required under Section 197 Cr.P.C.

5. Impeaching the order dated 11.08.2023, learned counsel for the applicant states that in the instant case, the sanction to prosecute the officials of the Revenue Department as required under Section 197 Cr.P.C. is not required.

6. He has placed reliance on the judgment passed in the case of Shadakshari Vs. State of Karnataka and Another, reported in 2024 SCC OnLine SC 48. The relevant paras, referred, reads as under:

"18. The question for consideration in this appeal is whether sanction is required to prosecute respondent No. 2 who faces accusation amongst others of creating fake documents by misusing his official position as a Village Accountant, thus a public servant? The competent authority has declined to grant sanction to prosecute. High Court has held that in the absence of such sanction, respondent No. 2 cannot be prosecuted and consequently has quashed the complaint as well as the chargesheet, giving liberty to the appellant to assail denial of sanction to prosecute respondent No. 2 in an appropriate proceeding, if so advised.

19. Section 197 Cr. P.C. deals with prosecution of judges and public servants. Section 197 reads as under:

"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 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 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Penal Code, 1860 (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.

[(3A) Notwithstanding anything contained in subsection (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, 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."

20. As per sub section (1) of Section 197 where 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 purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government, as the case may be.

21. The ambit, scope and effect of Section 197 Cr. P.C. has received considerable attention of this court. It is not necessary to advert to and dilate on all such decisions. Suffice it to say that the object of such sanction for prosecution is to protect a public servant discharging official duties and functions from undue harassment by initiation of frivolous criminal proceedings.

22. In State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40, this court explained the underlying concept of protection under Section 197 and held as follows:

"7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case."

23. This aspect was also examined by this court in Shambhu Nath Misra (supra). Posing the question as to whether a public servant who allegedly commits the offence of fabrication of records or misappropriation of public funds can be said to have acted in the discharge of his official duties. Observing that it is not the official duty to fabricate records or to misappropriate public funds, this court held as under:

"5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained."

24. Even in D. Devaraja (supra) relied upon by learned counsel for respondent No. 2, this court referred to Ganesh Chandra Jew (supra) and held as follows:

"35. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty."

25. Thus, this court has been consistent in holding that Section 197 Cr. P.C. does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of official duties.

26. After the hearing was over, learned counsel for respondent No. 2 circulated a judgment of this Court in A. Srinivasulu v. State Rep. by the Inspector of Police, 2023 SCC OnLine SC 900 in support of the contention that a public servant cannot be prosecuted without obtaining sanction under Section 197 of Cr. P.C. We have carefully gone through the aforesaid decision rendered by a two Judge Bench of this Court in A. Srinivasulu (supra). That was a case where seven persons were chargesheeted by the Central Bureau of Investigation (CBI) for allegedly committing offences under Section 120B read with Sections 420, 468, 471 along with Sections 468 and 193 IPC read with Sections 13 (2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act, 1988'). Four of the accused persons being A-1, A-2, A-3 and A-4 were officials of Bharat Heavy Electricals Limited, a public sector undertaking and thus were public servants both under the IPC as well as under the P.C. Act, 1988. Accused No. 1 had retired from service before filing of the chargesheet. Insofar accused Nos. 3 and 4, the competent authority had refused to grant sanction but granted the same in respect of accused No. 1. It was in that context that this court considered the requirement of sanction under Section 197 Cr. P.C. qua accused No. 1 and observed that accused No. 1 could not be prosecuted for committing the offence of criminal conspiracy when sanction for prosecuting accused Nos. 3 and 4 with whom criminal conspiracy was alleged, was declined. This court held as follows:

"52. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A-3, A-4 and A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to disentitle him for protection under Section 197(1) of the Code."

27. Admittedly, facts of the present case are clearly distinguishable from the facts of A. Srinivasulu (supra) and, therefore, the said decision cannot be applied to the facts of the present case.

28. The question whether respondent No. 2 was involved in fabricating official documents by misusing his official position as a public servant is a matter of trial. Certainly, a view can be taken that manufacturing of such documents or fabrication of records cannot be a part of the official duty of a public servant. If that be the position, the High Court was not justified in quashing the complaint as well as the chargesheet in its entirety, more so when there are two other accused persons besides respondent No. 2. There is another aspect of the matter. Respondent No. 2 had unsuccessfully challenged the complaint in an earlier proceeding under Section 482 Cr. P.C. Though liberty was granted by the High Court to respondent No. 2 to challenge any adverse report if filed subsequent to the lodging of the complaint, instead of confining the challenge to the chargesheet, respondent No. 2 also assailed the complaint as well which he could not have done."

7. In the case of Shadakshari (Supra) the complainant approached the Hon'ble Apex Court being aggrieved by the order dated 25.11.2020, whereby the High Court of Karnataka at Bengaluru quashed the Complaint dated 19.12.2016 as also the charge sheet in Case Crime No. 116 of 2018 in the proceedings instituted by the accused persons.

8. It reveals from the facts indicated in the judgment passed in the case of Shadakshari (Supra) that accused No. 1 in collusion with revenue official including accused No.2/respondent No. 2, therein, created fake documents in favour of respondent No. 1 including creation of death certificate of a living person.

9. In this background of the case, the Hon'ble Apex Court in the case of Shadakshari (Supra) after considering various pronouncements interfered in the order passed by the High Court and allowed to continue the proceedings pending before the Court of competent jurisdiction.

10. In the instant case, there is no such allegations as appears from Paras 3 and 4 of the application under Section 156(3) Cr.P.C. preferred by the applicant, which are reproduced herein-under:-

"????-03- ?? ?? ?????-21.01.2020 ?? ?? ??? ???? ?? ??????????? ?????? ????? ??? ?? ?? ????? ??????? ?? ??? ????????? ?? ??????? ???? ?? ?? ??? ???? ????????? ?????? ???? ?????????? ???? ?? ?? ?? ???? ??????-11.02.2020 ?? ?? ????????? ?????? ???? ?????????? ???? ?????? ???????? ?? ??????? ?? ??? ???????? ?? ??? ????, ?????? ? ??? ??????? ??????? ?? ???? ?????? ???? ?????? ?? ??????? ??????? ?? ??? ?? ???? ???? ??????? ??, ????? ??????? ??? ?????? ????? ???????? ?????? ????? ???? ????? ??, ?? ?? ?? ????????? ?? ?? ?? ??????? ?? ????? ??????, ??????? ???? ?????? ?????? ? ???????? ???????? ????? ?? ????????? ???? ???????? ?????? ?? ????? ?? ???? ?? ????? ?? ???????? ???? ?? ???? ???????? ?? ??????? ?? ??? ?????? ????? ???? ???????? ?????? ??? ??0-392/18 ???????? ??????? ????? ?? (????) ???? ??0-25 ?????? ?????. ????????? ?????? ?????? ????? ????? ???? ???????? ????? ??? ??? ??? ????? ???? ?? ?? ????? ???? ??? ???

????-04- ?? ?? ???????? ?? ?? ??? ?? ?????? ????????? ?????? ? ????????? ??????? ?? ???? ?? ?? ???????? ?? ???-??? ?? ?????-????? ??????? ???? ??? ??? ?? ??? ????? ?? ???? ?? ??? ????? ?????? ??? ???? ???? ?? ???? ?????"

11. In view of aforesaid, this Court is of the view that the judgment relied upon by the learned counsel for the applicant would be of no help. It is for the reason that in the instant case no forged document was prepared and to the view of this Court, the report was prepared by the Lekhpal of the area on the basis of information received while discharging his officials duties, and other Revenue Officials acted on the basis of said report. It would be relevant to indicate that the Lekhpal ought to have prepared the report after verifying the facts and in not doing so the Lekhpal would be answerable for a charge of dereliction of his official duty.

12. Accordingly, to the view of this Court the trial Court has rightly passed the order, under challenge.

13. For the reasons aforesaid, this Court finds that the instant application has no force. It is accordingly dismissed. Cost made easy.

Order Date :- 2.8.2024 Mohit Singh/-

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