Madhya Pradesh High Court
Akhilesh Kumar Jha vs State Of M.P. on 24 September, 2015
AFR MCRC.1084/2010 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Cri. Case No. 1084/2010
Akhilesh Kumar Jha
Vs.
State of MP and another
------------------------------------------------------------------------------
Shri Arun Pateriya and Shri Sanjay Gupta, Advocate for
the petitioner.
Shri Amit Bansal, Dy. Govt. Advocate for respondent
No.1/State.
Shri V.K.Saxena, Sr. Advocate with Shri R.K.Joshi,
Advocate for respondent No.2.
------------------------------------------------------------------------------
ORDER
(24/09/2015 ) The petitioner, a gazetted police officer, has filed this petition under Section 482 of the Code of Criminal Procedure (CrPC) to assail the order dated 2.3.2001, passed in complaint proceedings pending before Judicial Magistrate First Class, Bhitarwar (Distt. Gwalior).
2. It is stated by the petitioner that on 21.10.1995 one Munshiram was murdered. The allegation of said murder was made against respondent No.2 herein. The FIR for the offences under Sections 302, 147, 148 and 149 IPC was registered against the respondent No.2 in Police Station Belgada. The father of deceased Munshiram filed a petition before the High Court contending that his son is murdered by son of an influential politician. Hence, the police is not taking any action against the accused. The High Court directed the Superintendent of Police (SP) to look into the matter. It is also stated in the petition that even in the bail application preferred by respondent No.2, this Court directed for conducting proper investigation. The AFR MCRC.1084/2010 2 petitioner contends that at relevant time, the petitioner was working as City Superintendent and did not have any connection with the said crime registered at Police Station Belgada.
3. It is urged that Shri Ram Niwas was the Superintendent of Police (SP) at the relevant time. As per High Court's direction, the SP was directed to investigate/look into the progress of Crime No. 75/95. The petitioner stated that initially the respondent No.2 was interrogated by the said SP. A request was made before the Addl. Sessions Judge, Dabra for handing over the respondent No.2 for investigation to police authorities. In turn, the said Sessions Judge directed that the respondent No.2 herein be handed over for investigation to police authorities. Shri Ram Niwas (the then SP) started investigation. During investigation, respondent No.2 informed him that the axe by which he killed Munshiram is kept in his village Belgada. He agreed to provide the said axe to police authorities. The said statement of respondent No.2 was recorded by SP in presence of the witnesses. In Section 27 Memorandum, along with respondent No.2, other witnesses put their signatures. It was also signed by the-then SP.
4. It is the specific case of the petitioner that Shri Ram Niwas directed the petitioner to take respondent No.2 to Belgada and recover the said axe. In obedience of the order of superior officer, the petitioner took with him the respondent No.2 and went to Belgada, which is about 60 Kms. away from Dabra. At Belgada the axe was recovered by respondent No.2 in presence of witnesses. A seizure memo was prepared. The petitioner after undertaking aforesaid exercise, brought the respondent No.2 back from Belgada to Dabra. It is urged that at that time the road between Dabra and AFR MCRC.1084/2010 3 Belgada was in a very bad condition, therefore, petitioner could reach Dabra at around 7.00 pm. He took respondent No.2 to the residence of the-then Addl. Sessions Judge, Dabra. He produced him before the said judicial officer. At that time, counsel of respondent No.2 was also present before said judicial authority. The respondent No.2's counsel did not make any complaint/objection about anything before the Addl. Sessions Judge.
5. Shri Sanjay Gupta, learned counsel for the petitioner contends that the respondent No.2 was annoyed with the petitioner because he did not succumb to his pressure nor agreed to his request for not taking any action against him and, hence, he, as an after thought, filed the instant complaint on 12.5.1997. In the said complaint, certain allegations were made against him. The court below took cognizance of said complaint on 2.3.2001 and summoned the present petitioner. Learned counsel for the petitioner advanced three fold submissions. Firstly, it is urged that the date of incident is 28.11.1996 whereas complaint was filed on 12.5.1997. The allegations are based on Sections 294 and 323 IPC. The limitation as per Section 468 CrPC is one year. However, the court took cognizance on 2.3.2001 i.e., much beyond the statutory period of one year. It is noteworthy that this contention was given up by Shri Gupta during the course of hearing in view of recent judgment of Supreme Court, reported in (2014) 1 SCC (Cri) 721 (Sarah Mathew vs. Institute of Cardio Vascular Diseases ). Secondly, it is urged that the petitioner being a public servant is protected under Section 197 CrPC. In absence of any permission of competent authority, no cognizance could have been taken by the court below. The allegations and incident are attached to his official duties. Hence, the court below has erred in taking AFR MCRC.1084/2010 4 cognizance. It is urged that the prosecution is malicious and is initiated in order to take revenge from the petitioner. Lastly, it is submitted that the court below has mechanically taken cognizance, which is an example of non-application of mind.
In support of aforesaid contention, reliance is placed on AIR 1992 SC 604 (State of Haryana vs. Bhajanlal), AIR 1998 SC 128 (M/s. Pepsi Foods Ltd. vs. Special Judicial Magistrate), 2015 Cr.L.J. 2856 (Mehmood UL Rehman v. Khazir Mohammad Tunda).
6. Per Contra, Shri V.K.Saxena, learned senior counsel opposed the relief. He submits that against the order, whereby cognizance was taken, the petitioner can avail the remedy of criminal revision and present petition is not maintainable. He submits that no case is made out by the petitioner for interference at this stage.
7. The parties confined their submissions to the extent indicated above.
8. I have heard the parties at length and perused the record.
9. I deem it apposite to first deal with the preliminary objection of learned senior counsel about the maintainability of this petition against the order, whereby cognizance is taken. This aspect is no more res integra. In Adalat Prasad vs. Rooplal Jindal and others, reported in (2004) 7 SCC 338, the Apex Court held that under the Code of Criminal Procedure (Code) there exists no provision of review of an order. Thus, remedy lies in invoking Section 482 CrPC. The jurisdiction of this Court under Sec. 482 is wide enough to interfere to secure the ends of justice. In (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander and another), it is held that Section 482 CrPC is based upon the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest i.e. when the law gives anything to anyone, it also gives all those AFR MCRC.1084/2010 5 things without which the thing itself would be unavoidable. Section 482 CrPC confers very wide power on the Court to do justice and to ensure that the process of the court is not permitted to be abused.
Thus, the preliminary objection stands overruled.
10. As noticed, the petitioner has given up the first objection relating to limitation in taking cognizance of the matter. Hence, this point does not require any consideration. Second point raised by the petitioner was that he was a public servant and the allegations mentioned in the complaint are relating to and arising out of his official duties. Hence, he was protected under Section 197 CrPC. In absence of permission under Section 197, the court below has erred in taking cognizance. This point requires serious consideration. The Apex Court in catena of decisions has considered the language employed in Sec. 197, CrPC. In (2009) 6 SCC 372 (State of Uttar Pradesh vs. Paras Nath Singh), the Apex Court opined that So far as public servants are concerned the cognizance of any offence, by any court, is barred by Section 197, CrPC, unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That AFR MCRC.1084/2010 6 is the complaint cannot be taken notice of. According to Black's law Dictionary the word 'cognizance' means 'Jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty. The judgment of Paras Nath Singh (supra) was recently considered by Supreme Court in (2013) 10- SCC 705 (Anil Kumar and others vs. M.K.Aiyappa and another). It is held that as per the judgment of Paras Nath Singh (supra), State of W.B. vs. Mohd. Khalid [(1995) 1 SCC 684] and Subramanian Swamy v. Manmohan Singh [(2012) 3 SCC 64], it is clear that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. In Anil Kumar (supra), the Apex Court also considered the judgment of Army Headquarters v. CBI [(2012) 6 SCC 228]. The law on the issue of sanction was summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. The Apex Court AFR MCRC.1084/2010 7 recognised the right of public servant to raise the issue of jurisdiction when court proceeds without sanction. In Anil Kumar (supra), the complaint filed under Section 200, CrPC, was entertained without there being any sanction under Section 197, CrPC. The Government servant filed writ petition before the High Court. The High Court took the view that Special Judge could not have taken notice of private complaint unless the same was accompanied by a sanction order, irrespective of whether the court was acting at a pre-cognizance stage or the post- cognizance stage, if the complaint pertains to a public servant, who is alleged to have committed the offence in discharge of his official duties. The High Court for the said reasons quashed the order passed by the Special Judge as well as the complaint filed by the complainant. The High Court's order is affirmed by Supreme Court in Anil Kumar (supra).
11. Thus, in my view, the curtains are finally drawn on this aspect by Supreme Court in Anil Kumar (supra). The court below was not justified in entertaining the complaint without there being a sanction order.
12. The averments of complaint clearly show that the allegations made against the petitioner are related to and arising out of his official duties. This aspect is considered by Supreme Court in AIR 1967 SC 776 (P. Arulswami v. State of Madras). It is held that it is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197 (1), CrPC; 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. It is quality of the act that is important and if it falls within the scope and range of AFR MCRC.1084/2010 8 his official duties the protection contemplated by Section 197 (1), CrPC, will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.
This aspect is again considered by the Apex Court in (2006) 1 SCC (Cri) 432 (Rakesh Kumar Mishra vs. State of Bihar and others). In the said case, the Government official conducted a search without having equipped with a search warrant. The complaint was filed before CJM, Patna. The same was entertained. The Government servant's petition under Sec. 482, CrPC, was dismissed. He preferred appeal before the Apex Court. The Apex Court found that even if search warrant was not there, fact remains that he was discharging his official duties and alleged incident is arising out of it. It is held that 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. Similar view is taken in AIR 1956 SC 44 (Matajog Dobey vs. H.C. Bhari), wherein it is held that the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty.
13. At the cost of repetition, it is noted that as per the averments of complaint, it is clear that the allegations against the petitioner are arising out of his official duties. In the present case, the respondent No.2 has not filed any reply. The petitioner has shown to this Court's satisfaction that the allegations mentioned in the complaint are arising out of and connected with his official duties. Thus, he is entitled to enjoy protective AFR MCRC.1084/2010 9 umbrella of Sec. 197, CrPC,. It is apt to quote 41st Report of Law Commission in para 15.123, which reads as under:-
"it appears to us that protection under the Section is needed as much after retirement of the public servant as before retirement. The protection afforded by the Section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant". (Emphasis Supplied) The protective cover is wide enough to protect the petitioner in the facts and circumstances of this case.
14. Thus, in my view, the court below has erred in taking cognizance without there being any sanction under Sec. 197, CrPC.
15. The last contention is relating to non-application of mind on the part of court below. This aspect is somehow connected with the second submission. The Apex Court in M/s Pepso Foods Ltd. (supra) opined that taking cognizance on a complaint is a serious matter. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine nature of allegations made in the complaint and the documentary and oral evidence. In the present case, the cognizance is taken on mere asking. The court below has not applied its mind as to why protection under Section 197, CrPC, is not applicable to the present petitioner. Apart from this, it is noteworthy that the alleged incident had taken place on 28.11.1996 whereas complaint was filed on 12.5.1997. This also shows that the complaint proceeding is instituted with AFR MCRC.1084/2010 10 an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to personal grudge. Thus, following the principle laid down in State of Haryana vs. Bhajanlal and others (1992 Supp (1) SCC 335), I deem it proper to interfere on the complaint on this score also.
16. Thus, I find force in the argument of learned counsel for the petitioner that the court below has erred in taking cognizance on the complaint.
17. Resultantly, the order dated 2.3.2001, whereby the cognizance was taken, and the complaint proceedings in Case No.210/2001 are set aside. Petition is allowed.
(Sujoy Paul)
(yog) Judge