Bombay High Court
Onkar Dhansingh Rathod vs Ambadas Namdeorao Bhende And Anr. on 4 May, 2001
Equivalent citations: 2001CRILJ3411
Author: R.K. Batta
Bench: R.K. Batta
ORDER R.K. Batta, J.
1. Heard learned Advocate for the applicant and learned APP for non-applicant No. 2/State.
2. The applicant, along with co-accused, was tried for offences under Sections 426, 448, 500 read with Sections 34 and 120-B of IPC. The appellant and the co-accused were convicted for the offence under Section 426 read with Section 34, IPC and were sentenced to pay a fine of Rs. 2,000/- in default to suffer S.I. for one month. They were acquitted of the other charge. The appellant and the co-accused filed appeal before the Sessions Court. The co-accused died during the pendency of the appeal and as such the appeal filed by the said accused abated on account of his death. The appeal filed by the appellant was dismissed. The conviction and sentence under Section 426, IPC against him was maintained. The appellant challenges the order dated 15-4-1998 of the Additional Sessions Judge, Washim in this revision.
3. The only ground on which the revision has been argued is that sanction under Section 197 was required to prosecute the appellant which had not been obtained and as such the orders of two Courts below are liable to be set aside. On facts, obviously there was not much scope as there are concurrent findings of two Courts below.
4. Learned Advocate for the applicant urged before me that the applicant had acted in the discharge of his duties at the time when the offence under Section 426, IPC is alleged against him. He pointed out that both the Courts below have stated that the appellant had exceeded his powers. First of all it was urged by the learned Advocate for the applicant that the complainant cannot be said to be agriculturist so as to prohibit an attachment which was carried out by the applicant and in this respect reliance has been placed on the judgment of Shrimant Appasaheb Tuljaram Desai v. Bhalchandra Vithalrao Thube . On the question of sanction, reliance was placed on the judgment of N. K. Ogle v. Sanwaldas alias Sanwalmal Ahuja , Gaurishankar Prasad v. State of Bihar, Abdul Wahab Ansari v. State of Bihar, Ramesh Mahadeo Sawant v. Daulatrao Lembe, reported in 1998 (3) Mah LJ 229 : and Anil Shetgaonkar v. Abdulla Khan Karol, reported in 1996 (1) Mah LJ 978. On the other hand, learned APP urged before me that the attachment of the house and other building with the material and sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist and occupied by him is exempted from attachment under Section 176 of Maharashtra Land Revenue Code; that Section 241 of the Maharashtra Land Revenue Code provides for at least 24 hours notice before effecting any seizure and attachment for recovery of the cess. But, in this case the applicant in total disregard of the provisions removed the tin sheds of the house belonging to the complainant who is agriculturist for realising cess under the Maharashtra Land Revenue Code as a result of which not only the wall of the house collapsed but the complainant house suffered extensive damage. Relying upon Shreekantiah Ramayya Munipalli v. State of Bombay, , Amrik Singh v. State of Pepsu, , K. Satwtntsingh v. The State of Punjab, . In re Ramachandran, reported in 1980 Cri LJ 349 and Shriram Damodar Muley v. Ratanlal Mathuradas Kedia, reported in 1980 Mah LJ 765 the learned APP urged that the action of the applicant was totally mala fide under the circumstances and for such act no sanction is necessary.
5. In order to understand the rival con-' tention of the parties, it is necessary to have a bird's eye view of the incident in question on account of which the prosecution in question was launched against the applicant and the co-accused.
6. The prosecution case is that recovery of land revenue cess was due against the complainant and he was in arrears of land revenue cess. The applicant was called during the enquiry and demand for land revenue was made, but it appears that the complainant did not pay the arrears of land revenue. The applicant had warrant of attachment of moveable property of the complainant. Accordingly on account of nonpayment of land revenue cess, the applicant along with co-accused went to the house of the complainant and in his absence when only his wife who recently delivered the child was present, the applicant and co-accused removed three tin sheets from the roof of the house of the complainant as a result of which the wall of the house collapsed and there were extensive damages to the house of the complainant. The trial Court as well as the appellate Court held that the arrears of land revenue cess were due and the applicant had acted in pursuance of the warrant of the attachment of movables but he had exceeded the powers entrusted to him in discharge of his official duties.
7. Clauses (c), (d) and (e) of Section 176 of Maharashtra Land Revenue Code provides for recovery of arrears of land revenue by attachment and sale of defaulter's moveable property as also immovable property besides other modes of recovery. In case of Clauses (c), (d) and (e) the proviso prohibits attachment of certain necessary articles like necessary wearing apparel, cooking vessels, beds etc. tools of artisans if the defaulter is an agriculturist and houses and other buildings with the materials and sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment belonging to an agriculturist and occupied by him. The complainant was admittedly an agriculturist and as such the proviso to Section 176 of the Maharashtra Land Revenue Code is attracted. Therefore, strictly speaking the action of the applicant would not be justified and is on the contrary against the mandate of Section 176 of the Maharashtra Land Revenue Code. Besides this, Section 241 of the Maharashtra Land Revenue Code also requires at least 24 hours notice before effecting any seizure and attachment for recovery of the cess which was also not followed. As I have already pointed out that both the Courts have come to the conclusion that the applicant had exceeded the powers vested in him and he had acted in a mala fide and high handed manner thereby exceeding the power entrusted to him.
8. At this stage, I would like to refer to law on the subject and the rulings on which reliance has been placed by the learned Advocates for the parties. The law on the question of sanction is well settled though the interpretation and implementation of the words "accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" occurring in Section 197, Cr. P.C. may at times present some difficulty. It is not every offence committed by a public servant which will require sanction for his prosecution, nor even every act done by him while he is actually engaged in the performance of his official duties. The principle underlying the section is that the act complained of against the public servant must be an offence; there must be reasonable connection between the act complained of and the duty of the officer as a public servant, so that, if questioned, the officer may reasonably profess to have done the act in exercise or purported exercise of his official duty and the connection between the act and the official duty should be a reasonable one and not merely a fanciful one. The official position should not have been used as a mere cloak to defend the act complained of.
9. In Matajog Dobey v. H. C. Bhari, the Apex Court was considering the allegations that the official authorised in pursuance of warrant issued by Income-tax Investigation Commission in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put, the said officer not only entered forcibly, but tied the person offering resistance with a rope and assaulted him mercilessly causing injuries and for such act complaint had been filed against the concerned officers. The Apex Court on these facts held that such a complaint cannot be entertained without sanction of the competent authority as provided under Section 197, Cr.P.C. The Apex Court in this case has laid down (at pages 144-146 of Cri LJ) :-
The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty.
It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the Court must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. - (S) and (S) . Considered.
It is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case , Rel. on.
The Apex Court quoted with approval the following observations from Shreekantiah Ramayya Munipalli v. State of Bombay (supra) at pages 862-863 of Cri LJ :-
Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning.
The Apex Court has also quoted with approval the observations of the Apex Court in Amrik Singh v. State of Pepsu (supra) (at page 868 of Cri LJ) :-
If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts then no sanction would be required.
In Amrik Singh v. State of Pepsu (supra), it has been further laid down (at page 867 of Cri LJ) :-
It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) Criminal P.C.; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
10. Learned APP relied upon the judgmerit of Division Bench of this Court Shriram Damodar Muley v. Ratanlal Mathuradas Kedia (supra), wherein the Chief Officer and President of the Municipal Council sent some coolies to Municipal Council to break open the lock and remove all the articles of the complainant which were stored inside the house after pulling down the house. The articles from the house were removed without intimation to the occupier and were not returned to him, as a result of which the complaint was filed against them under Sections 426 and 380, IPC. The accused therein challenged the prosecution in the absence of sanction under Section 197, Cr. P.C. In this set of facts, it was held that the question whether the removal of property of the complainant by Chief Officer without calling and offering the same to the legitimate owner was an act referable to the act of pulling down of the structure as contemplated by Section 195 of the Maharashtra Municipalities Act could be decided only after taking some evidence. Merely on the allegations as made in the complaint, it could not be said that the Section 197, Cr. P.C. operated against the Magistrate taking cognizance of offence punishable under Section 380, IPC.
11. Learned APP has also relied upon K. Satwant Singh v. The State of Punjab (supra), wherein it was found by the Apex Court that the offence of cheating by its very nature cannot be regarded as having been committed by public servant while acting or purporting to act in the discharge of his official duty. In this connection, the Apex Court laid down and held as under :-
(Per Majority) - The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty. Where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offence.
Per Kapur, J.- The evidence to support the plea under Section 197 and to establish the requisire nexus between the act done by the accused and the scope and extent of his duties was lacking and therefore the applicability of Section 197 to the facts of the present case could not be held to have been proved. and , Foil.
12. Lastly, learned APP had relied upon In re Ramachandran (supra), wherein it was held that the President of the Panchayat was empowered to remove the encroachment and in that event of removal of encroachment by him, the complaint regarding removal of encroachment could be tried only with the previous sanction. In this connection, the Madras High Court held as under (at page 352 of Cri LJ) :-
A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe though the judgment which he delivers may be such an act, nor does a governmental medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office. In the instant case the accused - President of the Panchayat was alleged to have removed encroachment by demolishing the house of complainant and his mother. However the accused President was authorised to remove encroachment by a resolution of the Panchayat dated 16-12-1977. On the question of availability of protection under Section 197, Cr. P.C. Held, that the Act of the accused could well be brought within the scope of the discharge of duties or the purported discharge of the duties of the President and therefore competent sanction under Section 197(1) of Criminal P.C. would be necessary before the complaint could be entertained.
13. Learned Advocate for the applicant had relied upon N. K. Ogle v. Sanwaldas alias Sanwalmal Ahuja (supra), wherein the Tahsildar and District Collector passed an order for collecting lease money of Rs. 4,653/-from the respondent and on the basis of this order of the District Collector, the Tahsildar, appellant had registered the matter in his Court and ordered for issuance of Demand Letter. The demand letter had been issued and had been duly served on the respondent but the respondent did not take any steps to pay. Accordingly, warrant of attachment was issued on 4-12-1989 and on21-12-1989 the scooter of the respondent was seized from the Tahsil Office where he had come and the scooter was auctioned. The respondent filed a complaint under Section 379, IPC against Tahsildar. After relying upon Matajog Dobey v. H. C. Bhari (supra), the Apex Court held that the acts complained of by the respondent against the Tehsildar had been committed in discharge of the official duty of such Tehsildar and, therefore, no cognizance can be taken against Tehsildar by any Court without prior sanction of the Competent. Authority.
14. Learned Advocate for the applicant then relied upon Gauri Shankar Prasad v. State of Bihar (supra). In this case, the accused, Sub-Divisional Officer in PWD, while carrying out removal of encroachment of wall of the complainant therein was asked by the family members of the complainant to first see the complainant who was treating patient in his clinic. Thereupon the Sub-Divisional Officer along with the constables rushed into the clinic and started abusing in filthy language to which the complainant protested and the accused took away the licence gun of the complainant and further ordered to drag out the complainant from the clinic which the constables obeyed and the complainant was dragged. Since the complainant was a man of one leg, he fell down. Subsequently, the pucca gate boundary walls, Isolation Ward, Gairaz and cow shed were all demolished illegally without any reason. It was urged by the complainant that there was no encroachment and the total episode was manoeuvred by the accused due to political reason. In this set of facts, after relying upon the judgment of Apex Court in Matajog Dobey v. H. C. Bhari (supra) and N. K. Ogle v. Sanwaldas alias Sanwalmal Ahuja (supra), it was held that the acts complained of by the Sub-Divisional Officer against the complainant had a reasonable nexus with official duty of the appellant Sub-Divisional Officer and the appellant was entitled to immunity from the criminal proceedings without sanction provided under Section 197 Cr. P.C.
15. Learned Advocate for the applicant had also relied upon judgment of the learned single Judge of this Court in Ramesh Mahadeo Sawant v. Daulatrao Lembe (supra), wherein the accused was prosecuted for offence under Sections 380, 427 and 457, IPC and sanction had not been obtained for his prosecution, it was held that discharge of the accused for want of sanction was proper. In this case, the allegations were that the accused had broke open the lock of his room and the premises were sealed. On enquiry the complainant had learnt that in the previous night, the respondent who was serving as Inspector of Police had come with the police and broke open the premises as also ransacked room and articles of furniture were smashed and damaged. It was urged on the part of the complainant/petitioner that the respondent had abused and misused his powers and position and acted in most reckless and high handed manner. It was urged on behalf of the accused that the respondent while discharging his official duty and in the performance of official duty if any excess committed by him, it would be disclosed only at the time of trial. The petitioner had urged that the respondent was acting as mala fide and his action was unauthorised and in fact he has committed the excesses in discharging the official duty as Sub-Inspector. Relying upon the judgment of the Apex Court in Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan as also the following passage therefrom the order of the trial Court holding that sanction was required and discharge of the accused for want of sanction order was not interfered with :-
Considering the facts and circumstances of the case, it prima facie appears to us that the alleged acts on the part of the respondents were purported to be in the exercise of official duties. Therefore, a case of sanction under Section 197 Criminal Procedure Code has been prima facie made out. Whether it was unjustified on the part of the respondents to take recourse to the actions alleged in the complaint or the respondents were guilty of excesses committed by them will be gone into the trial after the required sanction is obtained on the basis of evidences adduced by the parties.
16. Reverting back to the facts of the case under consideration, it is admitted position that arrears of land revenue cess were payable by the respondent No. 1 complainant and a warrant of attachment of moveable property had already been issued. Thus, while effecting attachment, the applicant had certainly acted in the discharge of his duties though there is no doubt that he has acted in excess of it. The two Courts have also in fact come to the same conclusion. Applying the law referred to above, I have no doubt that sanctioin to prosecute the applicant was absolutely essential and in the absence of the sanction order, the Magistrate could not have taken cognizance of the matter.
17. In view of this, the revision succeeds and is allowed. The result is that the conviction and sentence recorded by the Judicial Magistrate First Class, vide order dated 4th January 1993 and confirmed by the learned-Additional Sessions Judge, Washim, vide order dated 15th April 1998 are hereby set aside. Fine, if any paid, shall be returned to respondent No. 1. The revision stands disposed of in aforesaid terms.