Madhya Pradesh High Court
Pawan vs The State Of Madhya Pradesh on 29 August, 2019
Author: S.C.Sharma
Bench: S.C.Sharma
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
Writ Appeal No.955/2019
(Pawan Rathore and Another Vs. State of M. P. and Others)
-1-
Indore, dated 29/08/2019
Ms. Mini Ravindran, learned counsel for the appellants.
The appellant before this Court has filed present writ appeal
under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand
Nyayapeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by order
dated 18/02/2019 passed by learned Single Judge in Writ Petition
No.1678/2017 (Pawan and Another Vs. State of M. P. and Others).
02- The facts of the case reveal that a writ petition was preferred
before this Court being aggrieved by action of respondents / State in
refusing to grant sanction for prosecution in respect of two Doctors namely Dr. D. K. Sharma and Dr. Sushil Soni i.e. respondents No.3 and 4 in the present writ appeal. The appellants who were the petitioners before the learned Single Judge were subjected to a Departmental Enquiry and while the Departmental Enquiry was going on, on 29/11/2014 it is alleged that the petitioners' were assaulted by respondents No.3 and 4. A report was lodged with the Police Station Sanyogitaganj, Indore.
03- The respondents No.3 and 4 are senior specialist working in one of the most prestigious Medical College of the State of Madhya Pradesh and as they are government servants sanction was required under Section 197 of the Code of Criminal Procedure, 1973. The State of Madhya Pradesh has refused to accord sanction and in those circumstances, a writ petition was preferred. HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Appeal No.955/2019 (Pawan Rathore and Another Vs. State of M. P. and Others) -2- 04- Various grounds have been raised by the petitioners before the learned Single Judge and the learned Single Judge has arrived at a conclusion that no case for interference is made out in the matter. The learned Single Judge has also arrived at a conclusion that the respondents No.3 and 4 were the members of the Committee constituted by the State Government and they were discharging their duties as a member of the Committee.
05- The learned Single Judge has also observed that when they were inquiring against the petitioners the alleged incident has taken place. The learned Single Judge in paragraphs No.13 to 16 has held as under:-
"13. In the present case, the petitioners were the employees of the respondent/Department. As many as 40 complaints were received by the Department against the petitioners regarding their conduct and irregularity committed by them. The respondents no.3 and 4 were appointed as members of the said Committee. That, after examining 9 witnesses, the petitioners were summoned for recording the statements, but they started abusing and used filthy language against the respondents no. 3 and 4 and they have also assaulted respondent no.3 due to which, he sustained grievous injuries in his stomach and was admitted in hospital for three days. On this incident, the matter was reported by respondent no.3 to the Superintendent of Police and on the basis of his statement an offence under Sections 353, 332, 294 and 506/34 of IPC was registered against the petitioners. After registration of the aforesaid crime, with oblique motive and afterthought, the petitioners have also lodged a report against the respondents no.3 and 4, for which the Department has not given any sanction for prosecution nor they took any instruction from Superintendent or any senior authority. The petitioners, thereafter, applied for sanction, but as sanction was not granted, therefore, they have approached before this Court by filing W.P. No.5941/2015. The said writ petition was withdrawn with liberty to file a fresh writ petition on 13/02/2017. During pendency of this writ petition, the respondents have filed their reply and along with their reply they have filed copy of the order dated 28/09/2015 by which the respondent no.1 has refused to HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Appeal No.955/2019 (Pawan Rathore and Another Vs. State of M. P. and Others) -3- grant sanction for prosecuting the respondents no.3 and 4. The petitioner, therefore, filed the present petition challenging the impugned order dated 28/09/2015.
14. From perusal of the impugned order, it reveals that a committee was constituted of which respondents no.3 and 4 are members appointed by the State Government at the time of discharging their duties. When they were enquiring against the petitioners they were on official duty and as they are discharging their official duty, therefore, as per Section 197 of Cr.P.C. sanction of the concerned Department is required before prosecuting them.
15. The Apex Court in Para, 9 10 and 11 of its judgment in the case of Center for Public Interest Litigation and another Vs. Union of India and another reported in AIR 2005 SC 4413 has held as under :-
9. 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 from 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 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Appeal No.955/2019 (Pawan Rathore and Another Vs. State of M. P. and Others) -4- 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.
10. Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
11. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed.
16. As per the aforesaid said judgment also, the sanction is required when the Act or omission have been done by public servant in discharge of his official duty."
The learned Single Judge has declined to interfere in the matter and the writ petition has been dismissed.
06- Ms. Mini Ravindran, learned counsel for the appellants has placed reliance upon a judgment delivered in the case of Devinder Singh and Others Vs. State of Punjab through CBI reported in HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Appeal No.955/2019 (Pawan Rathore and Another Vs. State of M. P. and Others) -5- (2016) 12 SCC 87 and she has argued that requirement of sanction is necessary under Section 197 of the Code of Criminal Procedure, 1973 in case act is in discharge of official duty. She has also placed reliance upon a judgment delivered in the case of Urmila Devi Vs. Yudhvir Singh reported in (2013) 15 SCC 624.
07- The case of Devinder Singh (Supra) was a case of alleged fake encounter and the officers involved were the officers of Punjab Police and in those circumstances the apex Court has held that act in which there is a requirement of sanction should be associated with the official duty. She has argued that in the present case act was not associated with the official duty and therefore, no sanction is necessary for trial of respondents No.3 and 4. In the other matter i.e. Urmila Devi (Supra) also the conduct of again a public servant was not in discharge of his official duty and in those circumstances sanction under Section 197 was not required.
08- In the present case facts are altogether different. The appellants were the employees of M. Y. Hospital and as many as 40 complaints were received by the Department against the petitioners about their conduct and various irregularities committed by them. 09- Respondents No.3 and 4 were appointed as a members of the committee. The Committee after examining nine witnesses summoned the petitioners for recording of their statements. The petitioners instead of giving their statement started abusing the respondents No.3 and 4 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE Writ Appeal No.955/2019 (Pawan Rathore and Another Vs. State of M. P. and Others) -6- and they have assaulted the respondent No.3 due to which he was admitted in hospital and on account of serious injuries received by him, he was hospitalized for three days and the matter was reported by respondent No.3 to the Superintendent of Police and a criminal case was registered against the petitioners for offences under Section 353, 332, 294 and 506/34 of the Indian Penal Code, 1860. 10- The petitioners as a counter blast, with oblique motive lodged a counter First Information Report against the respondents No.3 and 4 and in those circumstances Department has not given any sanction for prosecution in the matter. The State of Madhya Pradesh has refused to grant sanction in order to ensure that innocent Doctors are not harassed at the behest of the persons like petitioners against whom there are as many as 40 complaints and who themselves have assaulted senior doctors, who are specialist serving the State of Madhya Pradesh.
11- The respondents No.3 and 4 were discharging their official duty at the relevant point of time and therefore, the learned Single Judge was justified in dismissing the writ petition. This Court does not find any reason to interfere with the order passed by the learned Single Judge and therefore, the admission is declined.
Certified copy as per rules.
(S. C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Tej
Digitally signed by
Tej Prakash Vyas
Date: 2019.09.09
13:22:12 +05'30'