Allahabad High Court
N.K.Mehrotra vs Chief Judicial Magistrate,Lucknow And ... on 15 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1894
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Court No. - 16 Case :- U/S 482/378/407 No. - 2916 of 2016 Applicant :- N.K.Mehrotra Opposite Party :- Chief Judicial Magistrate,Lucknow And Anr. Counsel for Applicant :- Anupam Mehrotra Counsel for Opposite Party :- Govt. Advocate,Dr. Nutan Thakur (In Person) Hon'ble Pankaj Bhatia,J.
Heard Sri Anupam Mehrotra, Advocate on behalf of the applicant. No one appears for the opposite party no. 2. I have also heard learned AGA for the State.
The present petition has been filed seeking quashing of Case No. 8737 of 2015 (Dr. Nutan Thakur v. Sri N.K. Mehrotra) pending in the Court of Chief Judicial Magistrate, Lucknow for the offences allegedly committed by the applicant as Lokayukta, U.P. under Sections 166, 167, 195, 195-A, 196, 200, 211, 219, 500 I.P.C.
The brief facts, giving rise to the present application under Section 482 Cr.P.C., are as under:-
The petitioner, a retired Judge of this Court, was appointed as a Lokayukta, Uttar Pradesh under the U.P. Lokayukta and Up-Lokayuktas Act, 1975 (hereinafter referred to as the 'Lokayukta Act') and acted as a Lokayukta from 16.3.2006 till 31.1.2016.
It has been stated in the application that while the applicant was acting as a Lokayukta, a Complaint Case No. 3540 of 2014 dated 26.12.2014 was filed by the OP No. 2 before the applicant. The applicant in exercise of his powers found the complaint of the OP No. 2 as vexatious and frivolous and passed relevant orders under Section 10 (5) read with Section 10 (4) of the Lokayukta Act. A copy of the said decision has been annexed as Annexure-2 to the application.
The OP No. 2 herein challenged the said order dated 25.5.2015 passed by the applicant in a writ petition before this Court being Writ Petition No. 11178 (MB) of 2015 (Nutan Thakur v. State of U.P. and others), which is pending.
On 21.7.2015, a complaint was filed before the applicant acting as a Lokayukta against the husband of the opposite party no. 2 and on the said complaint the applicant acting as a Lokayukta conducted the investigation and after conducting the said investigation, submitted his report no. 04 of 2015 dated 24.8.2015 to the Chief Secretary, Government of U.P. with his findings and recommendations, along with relevant document, material and evidence. The applicant, acting as a Lokayukta vide his said report dated 24.8.2015 made several recommendations against the husband of OP No. 2. The husband of the OP No. 2 challenged the said report of the Lokayukta dated 24.8.2015 by filing a Writ Petition No. 7964 (MB) of 2015 (Amitabh Thakur v. Sri N.K. Mehrotra and Others), which is pending.
In pursuance of the report of the Lokayukta dated 24.8.2015, the State Government acting upon said recommendation, lodged an F.I.R. dated 16.9.2015 through the Vigilance Establishment, Government of U.P. at Police Station Gomti Nagar, Lucknow under Section 13(2) read with Section 13 (1) (e) of Prevention of Corruption Act, 1988.
Prior to the submission of the report dated 24.8.2015, a notice was got served on behalf of the parents of the husband of OP No. 2 dated 22.8.2015 purporting to be legal notice under Section 80 C.P.C. threatening the institution of a suit for damages and compensation.
On 3.9.2015, a complaint was filed under Section 200 Cr.P.C. before the C.J.M., Lucknow alleging that the complainant is a civil activist and an advocate and is filing the complaint for the illegal acts of the applicant against the husband of the complainant while passing orders in Case No. 2583 of 2015. It was further alleged that while acting as a Lokayukta, the applicant has deliberately relied upon the evidences which he knew to be wrong and false and on half baked facts, which were well within the personal knowledge of the applicant and thus was guilty of wrongly relying upon non-existent evidence and knowing that the evidence was non-existent proceeded to pass an order against the provisions of the Lokayukta Act and the Lokayukta Complaint Rules, 1977. It was further alleged that the husband of the complainant had informed the applicant about the facts through written communication dated 12.8.2015 and 19.8.2015. In sum and substance, the allegations made in the complaint were that the applicant has passed a wrong order relying upon evidences which he knew were incorrect and half baked and wrong facts with a view to harm the complainant's husband. A copy of the complaint which is on record clearly reveals that the entire allegations were in relation to the order passed by the applicant in exercise of his power under the Lokayukta Act.
The C.J.M. vide his order dated 3.9.2015 took cognizance of the offence alleged and directed for registration of the complaint and for recording of the statements under Section 200 Cr.P.C. on 10.09.2015.
On 10.09.2015, one Sri Sanjay Sharma intervened in the said Complaint Case No. 8737 of 2015 and requested for rejection of the complaint and informed the C.J.M. that the cognizance of the complaint was barred under Section 17 of Lokayukta Act and Section 201 I.P.C. and the complaint was not maintainable. The C.J.M. vide his order dated 10.9.2015 held that at this stage the intervener had no right to intervene and consequently rejected his application and fixed 11.9.2015 for recording of evidence under Section 200 Cr.P.C. He subsequently proceeded to record the statement under Section 200 Cr.P.C. on 11.9.2015 and subsequently the statement under Section 202 Cr.P.C. was adjourned for recording on various dates.
The applicant filed the present application under Section 482 Cr.P.C. on 3rd May, 2016 seeking the quashing of the criminal proceedings.
Sri Anupam Mehrotra, Advocate has made the following submissions:-
That the Magistrate was not justified in registering the complaint against the petitioner who happens to be the Lokayukta as the allegations in the complaint were based upon the acts which were in discharge of the official duty as a Lokayukta. The submissions are that Section 17 (1) of the U.P. Lokayukta and Up-Lokayuktas Act, 1975, bars any prosecution for the official acts He further argues that the Magistrate received an information to that effect, however, despite being informed he proceeded to record the evidence under Section 200 of Cr.P.C. which is violative of the immunity granted to the petitioner under Section 17(1) of the Act. The next argument of Sri Anupam Mehrotra is that even in terms of the provisions of Section 197 Cr.P.C. without there being any sanction the Magistrate could not entertain the complaint and to take steps as has been done by the Magistrate. He further argues that the acts done by the petitioner in discharge of his duty as Lokayukta fell within the exceptions under Chapter IV of the Indian Penal Code. He specifically relied upon Sections 76 and 79 of Chapter IV of the Indian Penal Code, in that regard he further relied upon the judgments filed in the form of Synopsis which are taken on record. He has relied upon the judgment of the Supreme Court in the cases of M/s Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, 1998 SCC (Cri) 1400, Institution of A.P. Lokayukta v. T. Rama Subba Reddy; (1997) 9 SCC 42, State of U.P. v. Sheo Shanker Lal Srivastava; (2006) 3 SCC 276, M.P. Special Police Establishment v. State of M.P.; (2004)8 SCC 788, Rang Nath Mishra v. State of U.P.; (2015) 8 SCC 117, State of Rajasthan v. Shamsher Singh; (2015) 4 SCC (Cri) 421, State of Orissa v. MESCO Steels Ltd.; (2013) 4 SCC 340, Matajog Dubey v. H.C. Bhari; AIR 1956 SC 44, Ramayya v. State of Bombay; AIR 1955 SC 287, Amrik Singh v. State of Pepsu; AIR 1955 SC 309 and N.K. Ogle v. Sanwaldas; (1999) 3 SCC 284.
The next argument of Sri Mehrotra is that the antecedents of the applicant are doubtful inasmuch as the complainant is a habitual litigant and on several occasions being reprimanded by the High Court. A copy of the order whereby the P.I.L. being Misc. Bench No. 2967 of 2014 filed by the OP No. 2 was dismissed by imposing a cost of Rs. 25,000/- and by making the following observations:-
"8. In many of the files of public interest litigation filed by the petitioner, examined by the Court, we find that the petitioner has raised issues within a few days when any social or political issue attracts the attention of the media. Almost all the writ petitions are filed without any research or material and based only on the newspaper reports. The petitioner appears to have a permanent presence before the Bench hearing public interest litigation matters. It appears from the records of the writ petitions and the orders that the petitioner has received a tacit encouragement in filing such petitions, which takes away substantial time of the Court leaving other important matters.
9. Most of the writ petitions, filed by the petitioner in person are not in public interest. These writ petitions have been filed covering almost every subject covered by media to be topical mostly concerning social, political economic or commercial interest. She has also allowed her children, still minor in filing writ petitions; the last one concerning the decision of the Central government awarding Bharat Ratna awards. Almost every subject under the sun which attracts her imagination becomes a subject matter of public Interest Litigation.
10. In order to save this Court from the tsunami of writ petitions filed by the petitioner who appear almost every other day in Court touching matters which hits the headline, treating it as public interest, we find it appropriate to direct that hence forth the registry of the Court will not entertain any writ petition in public interest from Dr Nutan Thakur - either in person or though counsel (either as petitioner or co-petitioner) unless the petition, filed by her, accompanies a demand of Rs.25,000/- (Twenty Five Thousand). At the time of admission of the writ petition, if the Court considers that the petitioner has raised a matter which is genuine and bonafide in public interest, the demand draft deposited by her may be returned to her. In case it is found by the Court that the Writ Petition filed by her does not involve any public interest and the writ petition is dismissed, the amount in the demand draft deposited by her will be treated as costs imposed on her, and the amount will be credited in the account of the High Court Legal Services Committee at Lucknow to be spent for activities of the Legal Services Committee of the High Court.
11. The writ petition is dismissed, with cost of Rs.25,000/- to be paid by the petitioner appear in person to be deposited by her within a month with Senior Registrar, High Court at Lucknow, failingwhich it will realized from her by the District Magistrate, Lucknow with one month thereafter for which the demand will be sent by the Senior Registrar, subject to deposit made by her within within one month."
On the basis of submission as recorded above, Sri Anupam Mehrotra, Advocate prays that the proceedings pending before the Chief Judicial Magistrate are liable to be quashed.
Thus, what is to be decided by this Court is:-
(i) whether the order dated 3.9.2015 amounts to ''taking cognizance',
(ii) whether the complaint as filed is barred under Section 17(1) of the Lokayukta Act,
(iii) whether there being an absence of sanction under Section 197 Cr.P.C. the C.J.M. erred in taking cognizance of complaint and,
(iv) whether the complainant could not have filed the complaint being a habitual litigant.
To appreciate the arguments advanced it is essential to deal with the scope and ambit of the ''Lokayukta Act' and Section 197 Cr.P.C. The scheme of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 makes it clear that the said Act was enacted for appointment and function of authorities for investigation of grievances and allegations made against Ministers, Legislatures and public servants in certain cases.
Section 3 of the said Act provides for the appointment of Lokayukta and Up-Lokayukta who are empowered to conduct investigations. It provides that the Lokayukta shall be appointed after the consultation with the Chief Justice of High Court of Judicature at Allahabad and the leader of the opposition in the Legislative Assembly.
The Act further bars the Lokayukta or the Up-Lokayukta from holding any other Office. The appointment of the Lokayukta is for a tenure as provided under Section 5 of the Act being six years from the date on which he enters his Office. Section 6 of the said Act provides for the manner of removal of Lokayukta and Up-Lokayukta. Section 7 of the said Act provides for the matter in which the investigations may be carried out by the Lokayukta or the Up-Lokayukta and Section 8 specifically bars the matters in which the investigations cannot be carried out by the Lokayukta.
Section 10 of the Lokayukta Act provides for the procedure to be adopted in respect of investigations and is as under:-
"10. Procedure in respect of investigations. - (1) Where the Lokayukta or an Up-Lokayukta proposes (after making such preliminary inquiry, if any, as he deems fit) to conduct any investigation under this Act, he -
(a) shall forward a copy of the complaint to the public servant concerned and the competent authority concerned;
(b) shall afford to the public servant concerned an opportunity to offer his comments on such complaint; and
(c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit.
(2) Every such investigation shall be conducted in private, and in particular, the identity of the complainant and of the public servant affected by the investigation shall not be disclosed to the public or the press whether before, during or after the investigation :
Provided that, the Lokayukta or an Up-Lokayukta may conduct any investigation relating to a matter of definite public importance in public, if he, for reasons to be recorded in writing, thinks fit to do so.
(3) Save as aforesaid, the procedure for conducting any such investigation shall be such as the Lokayukta or, as the case may be, the Up-Lokayukta considers appropriate in the circumstances of the case.
(4) The Lokayukta or an Up-Lokayukta may, in his discretion, refuse to investigate or cease to investigate any complaint involving a grievance or, an allegation, if in his opinion -
(a) the complaint is frivolous or vexatious, or is not made in good faith; or
(b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or
(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.
(5) In any case where the Lokayukta or an Up-Lokayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint, he shall record his reasons therefor and communicate the same to the complainant and the public servant concerned.
(6) The conduct of an investigation under this Act in respect of any action shall not affect such action, or any power or duty of any public servant to take further action with respect to any matter subject to the investigation."
Section 12 of the Lokayukta Act provides for the evidences that may be called for in discharge of the official functions. Section 13 provides for the manner in which the action can be taken in the case of complaints by persons who willfully or maliciously makes false complaints and Section 13 (6) confers the power to detain in custody for taking cognizance of the offence. Section 13 (6) of the said Act is as under:-
"(6) When any such offence as is described in Section 175, Section 178, Section 179 or Section 180 of the Indian Penal Code is committed in the view or presence of the Lokayukta or Up-Lokayukta, he may cause the offender to be detained in custody and may, at any time on the same day, take cognizance of the offence and, after giving the offender a reasonable opportunity of showing cause why he should not be punished under this section, sentence the offender to simple imprisonment for a term which may extend to one month, or to fine which may extend to five hundred rupees, or to both."
Section 17 of the Lokayukta Act, which is the sum and substance the sheet anchor of the arguments made by the counsel for the applicant provides for protection to the Lokayukta or the Up-Lokayukta in respect of anything which in good faith done or intended to be done under this Act. Section 17 is as under:-
"17. Protection. - (1) No suit, prosecution or other legal proceeding shall lie against the Lokayukta or the Up-Lokayukta or against any officer, employee, agency or person referred to in Section 14 in respect of anything which is in good faith done or intended to be done under this Act.
(2) No proceedings of the Lokayukta or the Up-Lokayukta shall be held bad for want of form and except on the ground of jurisdiction, no proceedings or decision of the Lokayukta or the Up-Lokayukta shall be liable to be challenged, reviewed, quashed or called in question in any Court."
Section 197 Cr.P.C. provides for prior sanction before any cognizance can be taken for allegations against Judges and public servants. Section 197 Cr.P.C. is 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 166-A, Section 166-B, Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 370, Section 375, Section 376, Section 376-A, Section 376-C, Section 376-D or Section 509 of the Indian Penal code (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.
[(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."
Sri Anupam Mehrotra has relied upon the definition of the public servant as defined under Section 21 I.P.C. to contend that the applicant falls within the definition of a public servant and as such no cognizance could have been taken by the Magistrate without any sanction which the C.J.M. has done in the teeth of Section 197 Cr.P.C. Sri Mehrotra further submits that as the applicant is entitled to detain any person in confinement by virtue of power conferred under Section 13 (6) of the Lokayukta Act and as such he falls within the seventh category as defining public servant under Section 21 I.P.C. Section 21 I.P.C. is quoted as under:-
"21. "Public servant".--The words "public servant" denote a person falling under any of the descriptions hereinafter following; namely:-- [***] Second. --Every Commissioned Officer in the Military, [Naval or Air] Forces [***] of India];
[Third. --Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;] Fourth. -- Every officer of a Court of Justice [(including a liquidator, receiver or commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
Fifth. -- Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;
Sixth. -- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
Seventh. --Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
Eighth. -- Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
Ninth. -- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of [the Government], or to make any survey, assessment or contract on behalf of [the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of [the Government], or to make, authenticate or keep any document relating to the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of [the Government] [***];
Tenth. -- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
[Eleventh. --Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;] [Twelfth. --Every person--
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).] "
The expression "cognizance" and "taking cognizance" came up for interpretation before the Hon'ble Supreme Court in the case of Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai Mohanbhai Patel and others; (2012) 10 SCC 517, wherein the Hon'ble Supreme Court has held as under:-
"24. The procedural scheme in respect of the complaints made to Magistrates is provided in Chapter XV of the Code. On a complaint being made to a Magistrate taking cognizance of an offence, he is required to examine the complainant on oath and the witnesses, if any, and then on considering the complaint and the statements on oath, if he is of the opinion that there is no sufficient ground for proceeding, the complaint shall be dismissed after recording brief reasons. The Magistrate may also on receipt of a complaint of which he is authorised to take cognizance proceed with further inquiry into the allegations made in the complaint either himself or direct an investigation into the allegations in the complaint to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. In that event, the Magistrate in fact postpones the issue of process. On conclusion of the inquiry by himself or on receipt of report from the police officer or from such other person who has been directed to investigate into the allegations, if, in the opinion of the Magistrate taking cognizance of an offence there is no sufficient ground for proceeding, the complaint is dismissed under Section 203 or where the Magistrate is of the opinion that there is sufficient ground for proceeding, then a process is issued. In a summons case, summons for the attendance of the accused is issued and in a warrant case the Magistrate may either issue a warrant or a summons for causing the accused to be brought or to appear before him.
25. Pertinently, Chapter XV uses the expression, "taking cognizance of an offence" at various places. Although the expression is not defined in the Code, but it has acquired definite meaning for the purposes of the Code.
34. The word "cognizance" occurring in various sections in the Code is a word of wide import. It embraces within itself all powers and authority in exercise of jurisdiction and taking of authoritative notice of the allegations made in the complaint or a police report or any information received that an offence has been committed. In the context of Sections 200, 202 and 203, the expression "taking cognizance" has been used in the sense of taking notice of the complaint or the first information report or the information that an offence has been committed on application of judicial mind. It does not necessarily mean issuance of process."
A perusal of the order dated 3.9.2015, and the Magistrate recording the statements under Section 200 Cr.P.C. and fixing the same for recording of the statement under Section 202 Cr.P.C. clearly would amount to fall within the expression "taking cognizance", as used in Section 200 Cr.P.C. Furthermore a perusal of Section 200 Cr.P.C. makes it clear that the Magistrate after taking cognizance on an offence shall proceed to examine on oath the complainant and the witnesses present, if any. In view thereof, I have no hesitation in holding that the Magistrate had taken cognizance of the allegations levelled against the applicant by the complainant in the complaint while passing the order dated 3.9.2015.
The next question to be answered is whether the complaint was barred under Section 17 (1) of the Lokayukta Act. The Section 17 (1) of the Act has been incorporated in the Act to give protection to the Lokayuktas with a view to ensure the functioning of the Lokayukta in a free and fair manner. It specifically provides the protection of the actions taken/orders passed in the course of the powers entrusted upon the Lokayukta under the Act from prosecution. The said protection granted under Section 17 (1) has to be strictly interpreted without which the entire object of the Lokayukta Act and the appointment of the Lokayukta would wipe out the spirit with which the Act has been enacted. The scheme of the Act makes it clear that the Lokayukta has to be a neutral person who is required to take decision without any fear or favour and without the kind of protection as provided under Section 17 (1) of the Lokayukta Act being there, it cannot be conceived that the object of the Act would be fulfilled.
The complaint as filed before the C.J.M. makes allegations against the applicant with regard to the orders passed by the applicant under Section 10 (5) of the Act. The sum and substance of the allegations is that while passing the said order, the Lokayukta has relied upon non-existence evidences and half baked facts which the applicant had the personal knowledge of being contrary to the actual facts. There is no allegation whatsoever that the order passed was not in good faith. It is relevant to note that the order which led to the filing of the complaint is already a subject matter of writ petition which is pending, in which no orders have been passed. A perusal of the complaint makes it abundantly clear that the allegations levelled in the complaint were with regard to the acts of the applicant while discharging his statutory duties as a Lokayukta of State of Uttar Pradesh and thus no legal proceedings could be instituted against the applicant as prohibited under Section 17(1) of the Act and the Magistrate was clearly barred from taking cognizance of the offences as has been done by the Magistrate.
Now coming to the question of prior sanction required under Section 197 Cr.P.C. before taking cognizance of an offence. Section 197 Cr.P.C. specifically bars any Court from taking cognizance against a ''Judge' or a ''Magistrate' or a ''public servant' without sanction of the Government. A bare reading of provisions of Section 197 (1) Cr.P.C. makes it clear that for attracting the provision of Section 197 Cr.P.C. it is essential that (i) the person accused of an offence should be a ''Judge' or a ''Magistrate' or a ''public servant' (ii) and he should not be removable from his Office save by or with the sanction of the Government. Thus, if it is established that the person falls within the category of a ''Judge' or a ''Magistrate' or a ''public servant' and he cannot be removed from his Office except with the sanction of the Government, the provisions of Section 197 Cr.P.C. shall become applicable forthwith.
Section 21 (Seventh Explanation) of the I.P.C. read with Section 13 (6) of the Lokayukta Act makes it clear that the applicant would fall within the definition of ''public servant' and furthermore provision of Section 6 of the Lokayukta Act make it clear that a Lokayukta cannot be removed without following the procedure as prescribed under Section 6 of the Lokayukta Act and without the sanction of the Governor. Thus, on both the counts i.e. the applicant falling within the definition of a ''public servant' and also ''not removable except with the sanction of the Governor', the protection of Section 197 (1) Cr.P.C. squarely applies to the applicant and thus on this count also the Magistrate has erred in taking cognizance of an offence.
Sri Mehrotra has extensively relied upon the observations made by the Apex Court in the Constitution Bench judgment of Matajog Dubey v. H.C. Bhari; AIR 1956 SC 44, wherein the Constitution Bench was considering the proceedings the proceedings against the public servant without sanction. The Constitution Bench decision Matajog Dobey case clearly enunciates where a power is conferred or a duty is imposed by a statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. The Court was considering in the said case the allegation that the official authorised in pursuance of a warrant issued by the 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 an act, a complaint had been filed against the public officers concerned. This Court, however, came to hold that such a complaint cannot be entertained without a sanction of the competent authority as provided under Section 197 CrPC. This Court had observed that before coming to a conclusion whether the provisions of Section 197 of the Code of Criminal Procedure will apply, the court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim that he did it in the course of the performance of his duty.
Applying the said test, it is clear that the order passed by the applicant acting as a Lokayukta was in discharge of his official capacity which he was authorised to perform under the provisions of the Lokayukta Act.
Sri Mehrotra has further strenuously relied upon on the judgment of the Apex Court in the case of N.K. Ogle v. Sanwaldas; (1999) 3 SCC 284, wherein the Apex Court relied upon the decision in the case of Matajog Dubey (supra) followed the same and further relying upon the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan; (1998) 1 SCC 205 held as under:-
"In Suresh Kumar case [(1998) 1 SCC 205 : 1998 SCC (Cri) 1] relying upon Matajog Dobey case [AIR 1956 SC 44 : (1955) 2 SCR 925 : (1955) 28 ITR 941] and bearing in mind the legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with previous sanction of the Government concerned, this Court has held that the said provision is a prohibition imposed by the statute from taking cognizance and, as such, the jurisdiction of the court in the matter of taking cognizance and, therefore, a court will not be justified in taking cognizance of the offence without such sanction on a finding that the acts complained of are in excess of the discharge of the official duty of the government servant concerned."
In view of the law as laid down by the Apex Court as extracted above, I have no hesitation in coming to the conclusion that no cognizance could be taken by the Magistrate without sanction under Section 197 Cr.P.C.
Coming to the argument of Sri Mehrotra that the complainant is a habitual litigant and on that score also the complaint deserves to be quashed, I am afraid, I am unable to accept the said submission merely because the complainant has been barred from instituting Public Interest Litigation, there cannot be any blanket bar against the complainant initiating or resorting to legal remedies as may be available to the complainant in the facts of the given cases. Thus, the submission of Sri Mehrotra on that count deserves to be rejected.
On the basis of the findings recorded above, I am of the view that the complaint as filed was specifically barred under Section 17 (1) of the Lokayukta Act and the order taking cognizance of the offence was barred under Section 197 Cr.P.C. As such, the Case No. 8737 of 2015 (Dr. Nutan Thakur v. Sri N.K. Mehrotra) pending in the Court of Chief Judicial Magistrate, Lucknow as well as the order taking cognizance dated 3.9.2015 deserves to be quashed and are accordingly quashed.
The application under Section 482 Cr.P.C. is disposed off in terms of the said direction.
No order as to costs.
Let a copy of this order be sent to the concerned court for it being taken on record.
Order Date :- 15.11.2019 SR