Punjab-Haryana High Court
Basant Lal vs Sumedha Kataria Administrator And ... on 4 August, 2008
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
In the Punjab and Haryana High Court,at Chandigarh.
Crl.Misc. No.M- 26098 of 2007
Decided on August 04,2008.
Basant Lal --- Petitioner
vs.
Sumedha Kataria Administrator and another ---Respondents.
Present: Mr. R.S.Mamli,Advocate, for the petitioner.
Mr.Balrm.K.Gupta,Sr.Advocate, with Mr.Vikrant Hooda,Advocate.
Mr.S.S.Goripuria,DAG,Haryana.
Rakesh Kumar Jain,J:
This is a petition under Section 482 Cr.P.C.,whereby the petitioner has prayed for setting aside the order dated 11.2.2006 passed by the Addl.Sessions Judge, Fast Track Court, Kurukshetra.
Briefly stated the facts of this case are that the petitioner filed a complaint under Sections 420, 465, 467, 471,466, 468, 167, 120-B, 109, 34 of IPC, Police Station, City Thanesar, before the Judicial Magistrate Ist Class, Kurukshetra, who vide his order dated 21.4.2003, summoned respondent No.1along-with other accused by passing the following order:-
"Heard. Careful consideration given to the contents of the complaint, preliminary evidence led by the complainant as well as Crl.Misc. No.M- 26098 of 2007 -2- document made available on the file, goes to prima-facie show that the accused of the present case have committed an offence punishable under Sections 420/467/468/ 167/120-B of the Indian Penal Code. No detailed reasons are required to be given in view of the law laid down by Hon'ble Apex Court in case of U.P.Pollution Control Board v. M/S. Mohan Heakins Ltd and others, 2000 (2) RCR, 421. Accordingly, accused of the present case be summoned for 7.7.2003 for the commission of aforesaid offence, on filing of P.F, copies of complaint etc".
Respondent No.1 preferred a Criminal Revision No.21 of 2006, which has been allowed by the Addl.Sessions Judge, Fast Track Court, Kurukshetra, vide the impugned order dated 11.2.2006.
The complainant/petitioner has filed the present petition alleging therein that father of the petitioner had died on 21.9.1987 and the entries have been changed in the name of his father Sada Ram, who was not even alive on that date. Therefore, the respondents have committed forgery.
Counsel for the respondents have argued that petitioner in the Civil Suit No. 670 of 1993 decided on 21.10.2000 filed an affidavit wherein he had himself claimed that the house in question is ancestral but he is claiming the entire property to be his own. It was also argued that the petitioner has not challenged the order passed by respondent No.1 on 18.1.1994, either by way of appeal or revision. It is further argued that the respondents cannot be prosecuted without obtaining sanction U/S 197 IPC. Crl.Misc. No.M- 26098 of 2007 -3-
I have heard counsel for the parties and have perused the record with their assistance.
The Addl. Sessions Judge, has taken into account all the arguments raised by counsel for both the parties. Relevant portion of his findings is reproduced below:-
"From the aforesaid it is clear that it is a dispute inter-se between the brother regarding property coming from their father. During the course of arguments, it has also been brought to my notice that the complainant has not challenged the said order dated 18.1.1994. The counsel for the complainant has also failed to rebut this position. It is abundantly clear that the petitioner as administrator was competent and will within its jurisdiction to pass this administrative order and the same was subject to challenge in appeal under the provisions of Haryana Municipal Act, 1973, thus, even if the complainant is to be believed that the totally illegal and erroneous order was passed, even then the same can be challenged in appeal or revision or any other appropriate remedy in accordance with law and the Administrator cannot be held liable for criminal action. The complainant could not bring out any other personal interest of the Administrator in the present case except the vague allegation that she has done so in connivance with his brothers. Though, at this stage, this Court is not to go into the veracity of the affidavit or otherwise into the relative merits of the case because here only the prima facie case is to be seen on the basis of allegations made by the complainant and it is suffice to say that complainant could not even rebut the affidavit filed by him in the civil suit wherein he Crl.Misc. No.M- 26098 of 2007 -4- himself has claimed the suit property to be ancestral . Without going into the facts of the case, the summoning order against the petitioner is liable to be quashed on the short ground that the petitioner is a public servant and she while acting as such passed an order in her official capacity in discharge of official duty, than in that case, previous sanction under Section 197 (1) Cr.P.C. was mandatory. However, there is no such sanction on record.
It has been held in Shambhoo Nath v. State of U.P. And others 1997 Crl.L.J, 249 that Section 197 postulates that "when any person who is 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 appropriate government/ authority". The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to an act in the discharge of his official duties. In such a situation, it postulates that the public servants act in furtherance of his performance or his official duty, the public servant is entitled to the protect under Section 197 Cr.P.C. Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needles harassment or prosecution. The protection of sanction is an assurance to an honest and since the officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralizes the honest officer. The Crl.Misc. No.M- 26098 of 2007 -5- requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime public duty may provide him as opportunity to commit crime, the Court to proceed further in the trial or the enquiry, as the case may be, and filed its mind and records a finding that the rime and the official duty are imegnate connected.
In view of Section 197 Cr.P.C and the law laid down by the Hon'ble Court in string of cases, the sanction is mandatory and the bar of the exercise of power by the court to take cognizance of any offence is absolute and complete and the very cognizance is barred and the complaint cannot be taken notice of. Reliance in this regard can be placed on State of Orissa v. Ganesh Chandra Jew AIR 2004 SC 2179, in the present case, the complainant has miserably failed to show that there was any action on part of administrator to forge, fabricate, misappropriate, commit fraud etc. It may also be mentioned that it has also been held in case of Awtar Singh v. State of MP 1994 Crl.L.J. 1575 that sanction is necessary if the alleged act is in discharge of official duty and whether the act is bonafide or malafide, is not consideration for obtaining sanction. Thus any act done in discharge of official duty would not ipso facto invite criminal liability without sanction once she has acted in discharge of official duty within its competent and jurisdiction while passing the impugned order. In these circumstances, the summoning order dated 21.4.2003 qua petitioner Sumedha Kataia is set aside".Crl.Misc. No.M- 26098 of 2007 -6-
Thus, in view of the findings recorded by the Court below, I do not find any illegality or irregularity in the order of the revisional Court. Therefore, the present petition being devoid of any merit is hereby dismissed.
August 04,2008 (Rakesh Kumar Jain) RR Judge