Allahabad High Court
Sujeet Singh vs State Of U.P. And 3 Others on 11 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:176281 Court No. - 86 Case :- CRIMINAL REVISION No. - 3299 of 2024 Revisionist :- Sujeet Singh Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Ashok Kumar Upadhyay,Brajesh Kumar Chaturvedi Counsel for Opposite Party :- G.A.,Shashi Bhushan Rai Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Brajesh Kumar Chaturvedi, learned counsel for the revisionist, Sri Shashi Bhushan Rai, learned counsel for the opposite party Nos.2 to 4, learned AGA for the State and perused the material placed on record.
2. Instant criminal revision has been preferred against the order dated 01.05.2024, passed by learned Chief Judicial Magistrate, Ballia in Case No.63 of 2023 (Sujeet Kumar Singh vs. Rajeev Kumar Rai and others), Police Station narahi, District Ballia. By the impugned order, learned trial court has dismissed the complaint filed by the revisionist against the opposite parties, who are opposite party nos.2 to 4 before this court for want of sanction envisaged under Section 197 Cr.P.C. on the ground that opposite parties are public servants.
3. The factual matrix of the case in brief are that the revisionist filed a criminal complaint against the opposite party Nos.2 to 4 with allegation that the applicant is posted as Assistant Teacher in primary school, Majhariya, Police Station Narahi, District Ballia and in that school Rajeev Kumar Rai- opposite party No.2, who is posted as Head Master has appointed one Indu Gupta as cook against norms and rules and removed serving cook Dropadi Mishra. The complainant has opposed this fake appointment and due to which, Rajeev Kumar Rai and other accused persons were harboring enmity with him. On 27.12.2022, when the complainant had approached the Headmaster in his office for seeking leave, he became aggressive, he abused him in filthy words and on his exhortation co-accused Sanjay and Anil Kumar caught hold of the complainant and Rajeev Kumar Rai assaulted him by kicks, fists and thermos kept on the table. The complainant received injuries on his person due to assault made by Rajeev Kumar Rai. Accused persons also threatened him with lief. The complaint was filed by the revisionist. The complainant examined himself under Section 200 Cr.P.C. and witnesses namely, Vandana Mishra and Vipin Mishra under Section 202 Cr.P.C. However, at the stage of considering the summoning of accused persons, the complaint was dismissed on the material ground that as opposite parties are public servants and provisions of Section 197 Cr.P.C. are not complied with, the further action against the opposite parties is not proper and therefore, the complaint was dismissed.
4. Feeling aggrieved by the impugned order, the revisionist has filed present criminal revision before this Court.
5. Learned counsel for the revisionist submits that in present case allegations of causing hurt, intentional insult and criminal intimidation are levelled against the opposite parties. The question of disputed appointment of a cook in the school by opposite party No.2 is shown as a motive for the said offences. On facts and allegations made in the complaint, no question of discharge of official duty arises as these offences cannot come within the purview of discharge of official duties. However, learned court below without considering the allegations made in the complaint and evidence recorded during enquiry under Sections 200 and 202 Cr.P.C. dismissed the complaint on the ground of non compliance of Section 197 Cr.P.C.
6. Learned counsel for the revisionist placed reliance on judgements of Hon'ble Apex Court in cases of Shadakshari vs. State of Karnataka and another, Criminal Appeal No.256 of 2024, State of Orissa Through Kumar ... vs. Genesh Chandra Jew, AIR 2004 SUPREME COURT 2179, Manohar Nath Kaul vs. State of Jammu and Kashmir, 1983 (3) SCC 429, B.S. Sambhu vs. T.S. Krishnaswamy, 1983 (1) SCC 11 in support of his contention.
7. Per contra, learned counsel for the opposite party Nos.2 to 4 submits that there is no illegality, irregularity or perversity in the impugned order passed by the learned trial court. The revisionist and opposite party No.2 are employed as a Teacher and Headmster in same school and an FIR was lodged on 18.12.2022, at police station concerned under Sections 323, 427, 504, 507 IPC, at the instance of opposite party Rajeev Kumar Rai against the revisionist with regard to incident dated 27.12.2022, at 1:45 PM, i.e. with relates to same place, date and time as mentioned in present complaint. In fact, present complaint is a counter blast of the FIR lodged by opposite party No.2 against the revisionist, wherein charge sheet has already been filed against the revisionist. The revisionist had assailed cognizance taking order passed on chargesheet in case lodged by opposite party No.2 before this court in proceeding under Section 482 Cr.P.C. This Court in Application U/S 482 No. 27022 of 2023, passed an interim order in favour of the revisionist to the effect that till the next date of listing, no coercive action shall be taken against the applicant in Complaint Case No.3460 of 2023 (Case Crime No.281 of 2022), under Sections 323, 427, 504, 507 IPC, Police Station Narahi, District Ballia. He next submitted that the revisionist is a quarrelsome person and used to engage in mischievous activities in the school, which is opposed by opposite party no.2, who is Head Master there.
8. Learned counsel for the opposite party nos.2 to 4 placed reliance on judgements of Hon'ble Apex Court in cases of Anil Kumar and Others vs. M.K. Aiyappa and Another (Criminal Appeal No.1590-1591 of 2013) and Dr. Nazrul Islam vs. Basudeb Banerjee and Others (CRR 625 of 2016), in support of his contention.
9. I have gone through the material on record and the judgements of Hon'ble Apex Court cited at Bar from both sides in present case wherein question of sanction envisaged under Section 197 Cr.P.C. is involved. Section 197 Cr.P.C. deals with prosecution of judges and public servants, which reads 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 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB 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.
[(3A) 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.] [(3B) 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."
10. Hon'ble Apex Court in Shadakshari vs. State of Karnataka and another (supra), considered the applicability and scope of Section 197 Cr.P.C. and observed as under:-
20. In State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40, this court explained the underlying concept of protection under Section 197 and held as follows:
"7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case."
21. This aspect was also examined by this court in Shambhu Nath Misra (supra). Posing the question as to whether a public servant who allegedly commits the offence of fabrication of records or misappropriation of public funds can be said to have acted in the discharge of his official duties. Observing that it is not the official duty to fabricate records or to misappropriate public funds, this court held as under:
"5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained."
22. Even in D. Devaraja (supra) relied upon by learned counsel for respondent No. 2, this court referred to Ganesh Chandra Jew (supra) and held as follows:
"35. In State of Orissa v. Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty."
23. Thus, this court has been consistent in holding that Section 197 Cr.PC does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of official duties."
11. So far as the dictum of Hon'ble Apex Court in Anil Kumar and Others vs. M.K. Aiyappa and Another (supra) and Dr. Nazrul Islam vs. Basudeb Banerjee and Others (supra) is concerned, in these cases a question whether the sanction as envisaged under Section 19 of Prevention of Corruption Act and 197 Cr.P.C is required at the stage of filing of application under Section 156(3) Cr.P.C. was involved. Both the cases are based on offences of prevention of corruption act. On facts of present case, the dictum of Hon'ble Supreme Court in Shadakshari vs. State of Karnataka and Another (supra) is holds field wherein Hon'ble Court has held that this court has been consistent in holding that Section 197 Cr.PC does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in discharge of official duties. It cannot be doubted that offence of causing assault, hurling abuse and threats by a public servant come within the purview of discharge of his official duties. The test for invoking Section 197 Cr.P.C. is what the public servant had allegedly done, was done in garb of or by virtue of official duties. Such type of offence can be done by any person whether he is public servant or private individual, no question of sanction attracts on facts of the case. This is also trite law that question of sanction is to be determined on the basis of allegations made in complaint and FIR. Therefore, I am of the considered opinion that the learned court below is misdirected itself by holding that the complaint is barred by non compliance of Section 197 Cr.P.C. On facts of the case, there is no requirement of sanction as envisaged under Section 197 Cr.P.C. The impugned order suffers from vice of illegality and it cannot be sustained and the same is liable to be set aside.
12. Accordingly, present revision is allowed and the impugned order is set aside.
13. The matter is remanded back to trial court with a direction to decide the question of summoning afresh on the basis of allegations made in the complaint and evidence recorded during enquiry under Section 200 and 202 Cr.P.C. as well as in the light of above judicial authorities, as cited above, without going into question of sanction.
14. However, it is made clear that the observations made hereinabove shall have no bearing on the final decision made by the learned trial court.
Order Date :- 11.11.2024 Kamarjahan