Delhi High Court
K.L. Verma vs State on 4 December, 1996
Equivalent citations: 1997IAD(DELHI)289, 65(1997)DLT200, 1996(39)DRJ700
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT S.K. Mahajan, J.
(1) By order dated 4th October, 1996, the Chief Metropolitan Magistrate taking cognizance of the offence under Sections 120B/195/469/471 Indian Penal Code issued non-bailable warrants against S/Shri P.V.Narasimha Rao, K.K.Tewari, K.L.Verma and Larry J.Kolb. Being aggrieved by this order, the petitioner has filed this petition for setting aside the same alleging it to be in violation of the procedure established by law under Section 197 of the Code of Criminal Procedure (in short referred to as "the Code"-).
(2) The petitioner at the time of commission of the alleged offence was working as the Director in the Directorate of Enforcement and it is alleged against him that he and the other accused persons had entered into a criminal conspiracy with the object of fabricating certain false records/evidence intending to have S/Shri V.P.Singh and/or Ajeya Singh convicted under the Foreign Exchange Regulation Act and/or Prevention of Corruption Act and to harm their reputation. The challenge to this order of the Chief Metropolitan Magistrate by the petitioner is on the ground that he being a public servant at the time of commission of the alleged offence, no cognizance could be taken against him without any authority of law and sanction of the Government being a civil servant and it was in a complete disregard of the provisions of Section 197 of the Code. Section 197 of the Code reads as under : - "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- (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.) (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. (3-A) 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. (3-B) 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."
(3) In order to apply the provisions of Section 197 of the Code, two conditions must be fulfillled; (i) that the offence mentioned therein must be committed by a public servant and (ii) that the public servant employed in connection with the affairs of the Union or State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. If above two conditions are satisfied, then the further inquiry would be whether the alleged offences have been committed by the public servant while acting or purporting to act in discharge of his official duties. If this requirement is also satisfied, then no court can take cognizance of such offences except with the previous sanction. The object of the Section is to provide guard against vexatious proceedings against Judges, Magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. In the present case, the first two conditions are fulfillled and the only question, therefore, raised before me is that even assuming that the petitioner has committed the offences cognizance of which has been taken by the Chief Metropolitan Magistrate, the same were committed by him while acting or purporting to act in the discharge of his official duties and consequently, according to the petitioner, no Court shall take cognizance of such offences except with the previous sanction and admittedly sanction having not been obtained the proceedings were required to be dropped as against him. To appreciate the contention of the petitioner, let me refer, in short, to the facts of this case.
(4) News reports were published in various newspapers in India on 22nd August, 1989 mentioning that there was a deposit of Us $ 21 millions by Shri Ajeya Singh in Ftcl, St.Kitts and the beneficiary of the said account was Shri V.P.Singh. On 24th August, 1989, the "Telegraph" of Calcutta published an interview with Mr.George D.McLean, Managing Director, Ftcl, and also a copy of statement of deposits and withdrawals in the aforesaid account No.29479. Thereafter, on 26th August, 1989 the "Telegraph" further published copy of the numbered account agreement in respect of the said account allegedly containing the- signatures of Shri Ajeya Singh as the account holder and the signatures of Shri V.P.Singh as the beneficiary of the said account. These news items allegedly adversely affected the reputation of Shri V.P.Singh who, at the relevant time, was stated to have emerged as a strong Opposition leader and general elections were likely to be held in November, 1989. 5. Shri V.P.Singh as well as Shri Ajeya Singh had denied the allegations about having any such account in Ftcl at St.Kitts. This denial was also published in the Indian newspapers. After publication of the news items about the said account of Mr.Ajeya Singh, a non- resident Indian, the Directorate of Enforcement swung into action and the Chief Enforcement officer, Shri Arun Kumar Sharma, issued a directive under Section 33(2) of the Foreign Exchange Regulation Act (in short FERA), 1973 to Sh.Ajeya Singh on 13th September, 1989. This directive was stated to have been issued by Mr.Arun Kumar Sharma on the instructions of the petitioner, the then Director of Enforcement, calling upon him to furnish detailed information about his passport, address, business activities, properties held and bank account, etc. He was also asked to submit the reply. Time was asked by Mr.Ajeya Singh to furnish required information, however, on 15th September, 1989, another reminder was issued to him directing him to furnish required information latest by 18th September, 1989 failing which a legal action under Section 50 or/and 56 of the Fera was threatened against him. A reply was received from Mr.Ajeya Singh on 20th September, 1989. However, a directive was again issued to him on 28th September, 1989 informing him that the reply was not complete and he was called upon to furnish further information. Further reply was submitted by Mr.Ajeya Singh on 8th October, 1989, however another directive under Section 33(2) of the Fera was issued on 16th October, 1989 to furnish complete information within seven days. Another reply was sent by Mr.Ajeya Singh on 23rd October, 1989 and the matter remained under consideration of the Enforcement Directorate.
(5) It is further alleged that S/Shri P.S.Pundir and S.S.Ranjan, Special Directors in the Directorate of Enforcement, were asked to visit Usa and St.Kitts etc. However, on 26th September, 1989, Shri A.P.Nanday, Deputy Director of the Directorate of Enforcement, who was allegedly not associated with this matter, was asked to proceed to Usa and St.Kitts to make inquiries abroad. Sh.Nanday was briefed about his assignment and journey by the petitioner and he was also allegedly asked to meet Mr.R.K.Dhawan, the then Officer on Special Duty in the Prime Minister's Office, in that connection. Mr.Nanday is alleged to have met Mr.Dhawan at his residence who told him that he should go to St.Kitts and do his duties as assigned and all arrangements had been made.
(6) During investigation, the statements of certain witnesses, including those of Mr.Nanday, Mr.Arun Kumar Sharma, Mr.S.P.S.Pundir, Mr.R.D.Barman. Assistant Manager, Air India, Mr.Madan Lal, Driver of Directorate of Enforcement, Mr.O.P.Gupta, Mr.R.K.Sharma, Director in-the Directorate of Enforcement were recorded by the investigating agency. While taking cognizance of the offence against the petitioner, the Chief Metropolitan Magistrate has held that the petitioner had initiated action against Mr.Ajeya Singh under Fera on the basis of unverified news reports and acted in haste and he appeared to be adamant and gave directions to prepare directive for seeking information from Mr.Ajeya Singh, in spite of being explained by Mr.Arun Kumar Sharma that the matter was pre-mature. Sufficient time was not alleged to have been given to Mr.Ajeya Singh to file his reply and the manner in which Mr.Nanday was assigned the job, in spite of the other officer having been chosen earlier, and the manner in which he was sent to St.Kitts allegedly showed that the petitioner was playing a vital role in the conspiracy of involving Mr.Ajeya Singh and Mr.V.P.Singh in the case so as to convict them under Fera and/or under the Prevention of Corruption Act. The visit of Mr.Nanday was allegedly a closely guarded secret to ensure that the purpose for which he was sent was fulfillled without any hindrance and the Chief Metropolitan Magistrate, therefore, held that the role of Mr.Verma, the petitioner, in the conspiracy made was obvious.
(7) As already mentioned by me above, to attract the provisions of Section 197 of the Code, the Court must be satisfied that the alleged offences have been committed by the public servant while acting or purporting to act in the discharge of his official duties. For this purpose, the allegations made in the complaint are very much relevant to appreciate whether the acts complained of are directly concerned or reasonably connected with official duties so that, if questioned, the public servant could claim to have done these acts by virtue of his office, that is to say, there must be a reasonable connection between the act and the discharge of official duties. It is in this context that the words "purporting to act in the discharge of official duties" assume importance. The public servant can only be said to act or purporting to act in the discharge of his official duties if his act is such as to lie within the scope of his official duties. To put it in the words of the Supreme Court in Matajog Dobey Vs. H.C.Bhari "There must be a reasonable connection between the act and the discharge of official duties; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty".
(8) The following observations of the Supreme Court in Pukhraj Vs. State of Rajasthan will also be helpful for deciding the present case :- "The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offences, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by public servant. Expressions such as the 'capacity in which the act is performed', 'cloak of office' and 'professed exercise of the office' may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty."
(9) Further in the State of Maharashtra Vs. Dr.Budhikota Subbarao 1993 Scc 339 the Supreme Court held as under :- "SO far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power, of the court to take cognizance of any offences is absolute and complete."
(10) In R.Balakrishna Pillay Vs. State of Kerala & Another , it was held by the Supreme Court that "Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is a quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 of the Code will have to be extended to the public servant".
(11) In R.Balakrishna Vs. State of Kerala (Supra), the facts were that the accused, while functioning as Minister for Electricity, Government of Kerala, and his co-accused, while functioning as Technical Member/Chairman of the Kerala State Electricity Board, in their capacity as public servant entered into a criminal conspiracy to sell electricity to the State of Kamataka to be supplied to M/s.Graphite India Limited, Bangalore, without the consent of the Government of Kerala, which was an illegal act under the provisions of Electricity (Supply) Act, 1948 and the rules framed by the Kerala State Electricity Board, and in pursuance of the said conspiracy, he abused his official position thereby causing the said private party to obtain undue pecuniary advantage to the tune of Rs.l9,58,630.40 paise, and more, by way of resultant profit to the industry and thereby committed an offence punishable under Section 120B of the Indian Penal Code Relying upon the judgment of the Supreme Court in Harihar Prashad Vs. State of Bihar , it was the contention of the State that as it was no part of the duty of the Minister while discharging his official duties to enter into a criminal conspiracy, the provisions of Section 197 of the Code will not be attracted and no sanction was required for taking cognizance of the offence against the accused. Repelling this contention, the Supreme Court held that "there can be no general proposition that whenever there was a charge of criminal conspiracy levelled against a public servant, bar of Section 197 of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case. The observations were made by the Court in the special facts of that (Harihar Prashad) case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted". Taking note of the observations of the Supreme Court in B.Sahai Vs. M.S.Kochhar the Supreme Court in B.K.Pillai's observed that the words "any offence alleged to have been committed by him (the accused) while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the Code were capable of both narrow and wide interpretation". If construed too narrowly, the Section will be rendered altogether sterile for "it is no part of an official duty to commit an offence, and never can be and at the same time, if too widely construed they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed". The right approach, therefore, was to see that the meaning of this expression lies between these two extremes. While on the one hand, it is not every offence committed by the public servant while engaged in the performance of his official duty, which is entitled to the protection; an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution.
(12) In the present case, it was the part of the duty of the petitioner to investigate into the irregularities under the Foreign Exchange Regulation Act as and when they came to his notice and if in the discharge of such duties he has allegedly abused his official position during the course of his functioning as an officer of the Directorate of Enforcement, obviously, he did this in the purported discharge of his duties as Director of Enforcement.
(13) Issuance of a notice under Section 33(2) of the Fera to. Sh.Ajeya Singh and sending Mr.Nanday to St.Kitts to collect information was a part of the official duties of the petitioner. May be that in doing this, he has not only acted illegally but has also abused his official position and made himself a party to the conspiracy. However, once it is established that act or omission was done by the public servant while discharging his duties then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise, the entire purpose of affording protection to a public servant without sanction shall stand frustrated. I am, therefore, of the opinion that the alleged acts of the petitioner were directly and reasonably connected with his official duties or in any case in the purported exercise of his official duties as an officer of the Directorate of Enforcement and, in my view, the same would attract the protection of Section 197(1) of the Code.
(14) For the foregoing reasons, I hold that the sanction under Section 197(1) of the Code was a sine qua non for taking cognizance of the offence against the petitioner. I consequently allow this petition and direct the proceedings against the petitioner pending in the Court of the Chief Metropolitan Magistrate to be dropped.