Himachal Pradesh High Court
Jaipal Khaira vs State Of Himachal Pradesh And Another on 2 November, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.MMO No. 320 of 2018.
Date of decision: 02.11.2018.
Jaipal Khaira .....Petitioner.
Versus
State of Himachal Pradesh and another ..... Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Rajesh Kumar Parmar, Advocate.
For the Respondents : Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Addl. A.Gs., for respondent
No.1.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner, who at the relevant time was posted as Naib-
Tehsildar has sought quashing of FIR and also consequential proceedings
including charges framed by the Court below in case arising out of FIR No.
207 of 2011.
2. The facts, as are relevant for the adjudication of this petition are
that the above FIR was registered on the statement of Kajal Sharma D/o late
Sh. Vinod Kumar Sharma R/o Sekhupura P.O. Kandrori, P.S. Indaura, District
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes
::: Downloaded on - 05/11/2018 22:58:03 :::HCHP
2
Kangra, who stated that in the year 2007 she was studying in 10+1 at GSSS,
.
Indaura and was seeking tuition from Ranjeet Singh Pathania S/o Sh. Madan
Singh R/o Bari, P.S. Indaura. During the month of January 2008, Ranjeet
Singh alongwith her mother came to her home with the offer to make marriage
with Kajal. But her mother refused to accept his offer. After this, Ranjeet Singh
started residing in her home with the consent of her mother. Ranjeet Singh and
her mother used to beat and mentally torture her to get her consent to marry
with him. During the year 2008, Ranjeet Singh quarreled with her and due to
this, people of her village assembled at her home and raised objection that
why an unknown/outsider is residing at their home. On this, her mother Anita
Devi assured the villagers that she is going to solemnised the marriage of her
daughter with Ranjeet Singh. On 9.9.2008 while she was in her school,
Ranjeet Singh came there and told that her mother is out of sort. On this, she
reached at her home with Ranjeet Singh and found that her mother was sitting
with the mother of Ranjeet Singh Krishna Devi. They forced her to go Indaura
with them. When they reached at Indaura they forced her to wear the bridal
dress. After that, they took her to Tehsil Court, compelled her to sign on some
documents and thereafter they told her that she has duly got married with
Ranjeet Singh. At the time of her marriage, she was adolescent of 16 years
old. After marriage, Ranjeet Singh used to beat her up and committed sexual
intercourse with her without her consent. During the month of May, 2009,
Ranjeet Singh and her mother beaten her and left her at the house of her
::: Downloaded on - 05/11/2018 22:58:03 :::HCHP
3
maternal grandmother at Rait. In order to get rid from her mother and
.
husband's maltreatment she left to Chandigarh to get some training. On
30.3.2010 she came to her home and her mother alongwith Ranjeet Pathania
again beaten her up. During the month of April, 2010 she turned to
Chandigarh. Later on, she telephonically informed her mother that now she
does not want to reside with Ranjeet Singh. On this, her mother told her that
she will never abdicate Ranjeet Singh from her house, but she can live without
Kajal Sharma. On this the above case was registered.
3. During the course of investigation, it was found that the petitioner
at the relevant time was posted as Naib Tehsildar, Indaura and had
solemnised the marriage of Kajal Sharma on 09.02.2008 by attesting two
affidavits in which Kajal Sharma has been shown as major. The date of birth of
Kajal Sharma is contradicting the facts mentioned in both affidavits. The
petitioner was legally bound to verify the name, parentage, date of birth and
facts of affidavits produced before him for attestation. Thereafter criminal case
came to be registered against Ranjeet Singh in which the petitioner was
arraigned as an accused on the ground that he had attested false affidavits of
marriage of Kajal Sharma, whose date of birth mentioned as 30.3.1991,
whereas her actual date of birth is 30.3.1992 and thereafter have committed
offence punishable under Sections 471, read with Section 120-B IPC and
offence punishable under Sections 10, 11 and 20 of Prohibition of Child
Marriage Act, 2006.
::: Downloaded on - 05/11/2018 22:58:03 :::HCHP
4
4. After completion of investigation, even though the State refused to
.
accord prosecution sanction under Section 197 Cr.P.C. yet the charges against
the petitioner stands framed by the Court below on 25.5.2018 constraining him
to file the instant petition.
5. It is vehemently argued by learned counsel for the petitioner that
since the petitioner was not in any manner responsible for preparing the
affidavits and had only attested the same in the capacity of Executive
Magistrate, therefore, he could not have necessarily been arraigned as an
accused. In addition to, he would argue that once the petitioner had been
discharging his official duties, then in absence of sanction under Section 197
Cr.P.C., the court could not have taken cognizance of the offence.
6. On the other hand, learned Additional Advocate General has
would justify the taking of cognizance by the Court below on the ground that
the petitioner is guilty of the offence and, therefore, deserves to be not only
prosecuted but punished.
I have heard learned counsel for the parties and have gone
through the material placed on record.
7. At the outset, it may be observed that the petitioner vide
notification dated 19.02.2008 was conferred with powers of Executive
Magistrate under Section 21 of the Code of Criminal Procedure, 1973 and in
addition thereto powers to attest affidavits under Indian Oath Act.
::: Downloaded on - 05/11/2018 22:58:03 :::HCHP
5
8. Admittedly, it was the parties to the affidavit who had prepared the
.
same and thereafter presented the same before the petitioner and petitioner
in exercise of powers conferred upon him under Section 21 (supra) had
attested the same. Therefore, in this background, the charges framed against
the petitioner that he deceived or dishonestly or by committing forgery by
attesting certificates is clearly misconceived. Further charged that he used
forged affidavit of marriage as genuine and solemnised the marriage of the
parties is too far-fetched and not borne out from the record. However, more
importantly is the fact that even though the prosecution had sought sanction
under Section 197 Cr.P.C., but the same was denied expressly by the State as
is evident from order dated 5.11.2011 passed by Divisional Commissioner,
Kangra Division, which reads thus:
"No.Div.Commr/B-3(49)/06-PF
Office of the Divisional Commissioner,
Kangra Division.
Dated:, D/Shala November, 2011.
ORDER
Whereas FIR No. 207/2011 dated 18.6.2011 P.S. Indora was registered against Shri Jai Pal Khera, formerly Naib Tehsildar, Indora and now under suspension;
Whereas the Superintendent of Police, Kangra at Dharamshala vide his letter No.R/SP-11-93025 dated 22.10.2011 has sought prosecution sanction against Shri Jai Pal Khera;
Whereas after going through the FIR, Challan and evidence appended thereto I am of the opinion that no prima-facie is made out ::: Downloaded on - 05/11/2018 22:58:03 :::HCHP 6 against Shri Jai Pal Khera and Shri Jai Pal Khera has only discharged .
his official duty by attesting an affidvit;
Now, therefore, the undersigned in exercise of powers vested under Section 197 Cr.P.C. vide Government notification No.Rev.A(B)15- 17/86 dated 20.10.1997 read with letter of even number dated 28 th May, 1998 hereby reject the request of Superintendent of Police, Kangra for grant of prosecution sanction against Shri Jai Pal Khera in the abvoe said FIR.
Sd/-
Divisional Commissioner,
r Kangra Division."
9. Section 197 Cr.P.C.reads thus:
"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 -
(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 166A, section 166B, Section 354, section 354A, Section 354B, section 354C, Section 354D, section 370, ::: Downloaded on - 05/11/2018 22:58:03 :::HCHP 7 section 375, Section 376, Section 376A, Section 376C, Section 376D or section .
509 of the Indian Penal Code (45 of 1860).]
10. A plain reading of the aforesaid provision makes it clear that Section 197 Cr.P.C., postulates that if an offence is alleged to have been committed by a public servant, who cannot be removed from the office except by or with the sanction of the Government, the Court is precluded from taking cognizance of such offence except with the previous sanction of the competent authority specified in this provision. Sanction, however, is necessary if the offence alleged against public servant is committed by him while acting or purporting to act in discharge of his official duties.
11. The entire legal position on the subject has been elaborately considered and dealt with by the Hon'ble Supreme Court in Devinder Singh and others vs. State of Punjab through CBI (2016) 12 SCC 87 wherein the principles emerging from the previous decisions have been summarised as under:
I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
II. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.
III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under ::: Downloaded on - 05/11/2018 22:58:03 :::HCHP 8 section 197 Cr.P.C. There cannot be a universal rule to determine .
whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
IV. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
V. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.::: Downloaded on - 05/11/2018 22:58:03 :::HCHP 9
IX. In some case it may not be possible to decide the question effectively .
and finally without giving opportunity to the defence to adduce evidence.
Question of good faith or bad faith may be decided on conclusion of trial."
12. Judged in light of the aforesaid exposition of law, the question which falls for consideration is as to whether the acts attributed to the petitioner are directly related to his official duties. The answer to the same is obviously in the positive because the entire allegations against the petitioner is revolved in attesting the two affidavits which had been attested by him in his capacity as Executive Magistrate. Once that be so, then obviously, the sanction to prosecute was pre-condition and the Court, therefore, could not have taken the cognizance of such offence.
13. Having said so, I find merit in this petition and the same is allowed and FIR No.207/2011 dated 18.6.2011 registered under Sections 376(1), 506, 120-B, 420, 468, 471 IPC, Sections 9, 10 and 11 of Prohibition of Child Marriage Act and Section 18 of Hindu Marriage Act, 1955, P.S. Indora, District Kangra with all consequential proceedings including the order of framing of charge dated 25.5.2018 passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, Circuit Court at Nurpur in Criminal Case No.S.C. No.14-I/VII/13/2010, qua the petitioner alone, are quashed and set-aside.
Copy dasti.
2nd November, 2018. (Tarlok Singh Chauhan),
(GR) Judge
::: Downloaded on - 05/11/2018 22:58:03 :::HCHP