Madhya Pradesh High Court
Mukesh Kumar Sharma vs The State Of Madhya Pradesh on 29 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C. No.11791/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABA LPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 29th OF APRIL, 2024
MISCELLANEOUS CRIMINAL CASE No. 11791 of 2024
BETWEEN:-
MUKESH KUMAR SHARMA S/O SHRI
BRAHMDEO SINGH, AGED ABOUT 53 YEARS,
OCCUPATION: GOVERNMENT SERVICE
PRESENTLY R/O D1, NIGAHI COLONY, NEAR
DPS SCHOOL NIGAHI WAIDHAN, THANA
NAVANAGAR, DISTRICT SINGRAULI (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI ANURAG SOAN - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH FOREST RANGE BUDHAR
POLICE STATION KHAIRHA DISTRICT
SHAHDOL (MADHYA PRADESH)
2. SANTOSH KUMAR PANIKA, BEATGUARD
SIROJA, HARDI FOREST RANGE BUDHAR,
FOREST SOUTH, SOUTH SHAHDOL,
DISTRICT SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DILIP PARIHAR - PANEL LAWYER FOR THE RESPONDENT
NO.1/STATE )
............................................................................................................................................
"Reserved on : 26.04.2024"
"Pronounced on : 29.04.2024"
This application having been heard and reserved for order, coming
on for pronouncement this day, the court passed the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed 2 M.Cr.C. No.11791/2024 seeking quashment of complaint POR No.20078/2022 dated 25.12.2022 as well as further proceedings of RCT No.933/2023 pending before the Court of JMFC, Budhar District Shahdol.
2. It is the case of applicant that he is an employee of SECL and from the month of June, 2021 to 27.05.2023 he was posted as Sub Area Manager/DGM at Shahdol. The applicant was the Second-in-Command at Sohagpur Area for handling the operations of two mines, namely; Rajendra Mines and Khairaha Mines located in the district of Shahdol. It is the case of applicant that he is entrusted with multiple responsibilities in addition to oversee entire mining operation which includes work related to industrial relations, colony welfare, sanctions and approvals. Approximately 1500 employees were directly or indirectly reporting to applicant when he was posted at Shahdol District. It is the case of applicant that applicant is on the payroll of the Central Government company as per his salary receipt of June, 2022 and accordingly, he falls under the definition of public servant as provided under Section 21 of Indian Penal Code. Thereafter, applicant has been promoted and transferred to NCL Singrauli as General Managar.
3. It is submitted that since 1993, SECL, which is subsidiary of Coal India Limited is undertaking mining activities in Shahdol. The mining operations takes place about 180-200 feet below the ground level and heavy machineries are used for such sophisticated operations as various external factors such as soil conditions, weather, underground gases etc. If due precaution is not taken, then there can be a disaster like water logging, landslides, fire, gas leak, blast etc. thereby putting the lives of various persons and their property in jeopardy. During mining operations, cracks and potholes occur as a natural consequences of mining and from time to time filling of the same becomes very 3 M.Cr.C. No.11791/2024 important. In the year 2011, the Forest Department granted permission to SECL for filling cracks in order to protect mine workers and surrounding environment subject to various terms and conditions. Accordingly, on 09.10.2021, the work order to undertake the job of crack filling was awarded to the private contractor Mohammad Ismail, who is also facing trial. On 10.06.2022, permission to fill up the cracks was extended by the Forest Department vide their letter addressed to the General Manager, SECL. By order dated 17.06.2022, applicant by a detailed order delegated the work to the then Mine Manager/Colliery Manager and directed him to strictly comply with the orders in conformity with the applicable guidelines. On 30.08.2022, the Assistant Forest Range Officer, Hardi, Forest Range Budhar served a first notice to applicant seeking explanation for not following the due process. Accordingly, applicant submitted his response submitting that no violation had taken place while filling the cracks. On 25.12.2022, one POR was registered against applicant and he was arrayed as accused No.2. On the same day, another show cause notice was issued to applicant by Assistant Forest Range Officer Hardi, Forest Range Budhar. Accordingly, applicant immediately enquired about the situation from the Mine Manager/Colliery Manager, who was overseeing the operations of crack filling in terms of applicant's direction vide letter dated 17.06.2022. It was responded by the Mine Manager/Colliery Manager that no violation had taken place and filling up of cracks during the Monsoon season has been undertaken on emergent basis. Accordingly, applicant submitted his response to the Forest Department about the sequence of permit and delegation of work. Again a third notice was issued to applicant on 20.05.2023 seeking explanation on POR and violation of Section 26(1)(h) of the Forest Act.
4 M.Cr.C. No.11791/2024The said notice was responded by applicant with all necessary permissions. In the meanwhile, applicant was promoted and transferred to Singrauli and accordingly, fourth notice was issued to the new Sub Area Manager seeking details of employees engaged in the alleged violation. The new Sub Area Manager shared the relevant details as sought under notice dated 31.05.2023. Thereafter, a fifth notice was issued to applicant and the Divisional Forest Officer summoned the applicant to his office on 18.08.2023. On 18.08.2023, the DFO issued sixth notice and summoned the applicant to his office on 12.09.2023. The statements were recorded by DFO on 12.09.2023. Thereafter, on 23.11.2023 Assistant Forest Range Officer, Hardi issued a seventh notice to the General Manager SECL seeking compensation under the provisions of the Forest Act otherwise the case will be forwarded to the Court for further proceedings. On 01.12.2023, new Sub Area Manager filed his reply citing that Rs.15 cores have been paid by SECL for compensatory afforestation to the State Government as per the legal provisions. Accordingly, eighth notice was issued to applicant requiring his presence before the JMFC on 20.12.2023. On 20.12.2023, the charge sheet was accepted by JMFC.
4. It is submitted by counsel for applicant that allegations against applicant and other officers are that in spite of clear restrain order thereby restraining the officers of SECL from using machine as well as for digging of loose earth from the forest area, not only the JCB machine was used but the loose earth was dug from the forest area. It is submitted that if the entire facts and circumstances of the case are considered, then it is clear that no case is made out. By relying upon the judgment passed by the Supreme Court in the case of Mahmood Ali and Others Vs. State of U.P. and Others reported in 2023 SCC 5 M.Cr.C. No.11791/2024 OnLine SC 950, it is submitted that this Court while exercising power under Section 482 of Cr.P.C. can read in between the lines after considering the surrounding circumstances. Therefore, this Court can adjudicate the factual dispute even in exercise of power under Section 482 of Cr.P.C. It is further submitted that the forest land from where the loose earth is alleged to have been collected by digging drain was situated in such a close proximity with the mining area which might have created some doubt in the minds of the operators and therefore, if some bonafide mistake has been committed without any mens rea, then the applicant cannot be prosecuted for the same. It is further submitted that applicant had already delegated his authority to the Mine Manager to carry out the work in accordance with law, therefore, if some mistake has been committed by the Mine Manager, then for the same applicant cannot be made vicariously liable. It is further submitted that applicant is the employee of SECL and therefore, he is entitled for protection as provided under Section 197 of Cr.P.C.
5. Per contra, the application is vehemently opposed by counsel for the State. It is submitted that permission was granted to fill up the cracks with a clear direction that no earth will be dug from the forest area and no machinery shall be used for the same. However, not only the JCB was used but drains were dug in the forest area to collect the loose earth and thus, it is clear that offence under question has been made out.
6. Considered the submissions made by counsel for the parties.
Whether sanction under Section 197 of Cr.P.C. is required or not?
7. Section 197 of Cr.P.C. reads as under:
"197. Prosecution of Judges and public servants.- (1) When any person who is or was a 6 M.Cr.C. No.11791/2024 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 lime 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 section 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. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union whole acting or purporting to act in the 7 M.Cr.C. No.11791/2024 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.
8 M.Cr.C. No.11791/2024(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."
8. Thus, in order to take protection of sanction under Section 197 of Cr.P.C., the accused has to satisfy following two aspects:
(i) that the offence alleged against him was committed by him while acting or purporting to act in the discharge of his official duty.
(ii) that he is not removable except by the Central Government or State Government as the case may be.
9. It was fairly conceded by counsel for the applicant that the sanction to fill up the cracks was granted with a specific direction that loose earth shall not be collected from the forest area and no machinery shall be used but fairly conceded that allegations against applicant and other co-accused persons are that drain was dug in the forest area to collect the loose earth by using JCB machine. Therefore, it is clear that the damage to the forest land was caused by the officials of the SECL in spite of a clear retrain order.
10. In spite of the specific injunction order, if applicant allowed its subordinate to dug a drain for collecting loose earth from forest area, then by no stretch of imagination, it can be said that the offence alleged against applicant was committed while acting or purporting to act in the discharge of his official duty.
11. The Supreme Court in the case of Centre For Public Interest Litigation and Another Vs. Union of India and Another reported in (2005) 8 SCC 202 has held as under:-
9 M.Cr.C. No.11791/2024"9. 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 from 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 10 M.Cr.C. No.11791/2024 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.
10. 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. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only 11 M.Cr.C. No.11791/2024 those acts or omissions which are done by a public servant in discharge of official duty."
12. The Supreme Court in the case of State of H.P. Vs. M.P. Gupta reported in (2004) 2 SCC 349 has held as under:-
"8. 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 12 M.Cr.C. No.11791/2024 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.
9. At this juncture, we may refer to P. Arulswami v. State of Madras [AIR 1967 SC 776 : 1967 Cri LJ 665] wherein this 13 M.Cr.C. No.11791/2024 Court held as under : (AIR p. 778, para
6) "It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code;
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 the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code 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."
10. Prior to examining if the courts below committed any error of law in discharging the accused, it may not be out of place to examine the nature of power exercised by the court under Section 197 of the Code and the extent of protection it affords to public servants, who, apart from various hazards in 14 M.Cr.C. No.11791/2024 discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecution. Sections 197(1) and (2) of the Code read as under:
"197. (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:
* * * (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."15 M.Cr.C. No.11791/2024
The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance, no prosecution can be initiated in a Court of Session under Section 193, as it cannot take cognizance as a court of original jurisdiction, of any offence, unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code 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" makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and 16 M.Cr.C. No.11791/2024 complete. The very cognizance is barred. That 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 been committed during discharge of his official duty.
11. Such being the nature of the provision, the question is how should the expression, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", be understood? What does it mean? "Official" according to the dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha v. M.S. Kochar [(1979) 4 SCC 177 : 1979 SCC (Cri) 939] it was held : (SCC pp. 184-85, para 17) "17. The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these 17 M.Cr.C. No.11791/2024 words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision."
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. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which, further, 18 M.Cr.C. No.11791/2024 must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far as its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance, a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official, was explained by this Court in Matajog Dobey v. H.C. Bhari [AIR 1956 SC 44 : 1956 Cri LJ 140] thus :
(AIR p. 49, paras 17 & 19) "The offence alleged to have been committed (by the accused) 19 M.Cr.C. No.11791/2024 must have something to do, or must be related in some manner, with the discharge of official duty. ... There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable (claim), but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
13. The Supreme Court in the case of S.K. Zutshi and Another Vs. Bimal Debnath and Another reported in (2004) 8 SCC 31 has held as under:-
"9. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is, under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which, further, must have been official in nature. The section has, thus, to be construed strictly while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far as its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal 20 M.Cr.C. No.11791/2024 activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance, a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in discharge of his duty and without any justification therefor then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official was explained by this Court in Matajog Dobey v. H.C. Bhari [AIR 1956 SC 44 : 1956 Cri LJ 140] thus :
(AIR p. 49, paras 17 & 19) "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. ...
There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable [claim], but not a pretended or fanciful claim, that 21 M.Cr.C. No.11791/2024 he did it in the course of the performance of his duty."
14. The Supreme Court in the case of Devinder Singh and Others Vs. State of Punjab Through CBI reported in (2016) 12 SCC 87 has held as under:-
"37. In Satyavir Singh Rathi v. State [(2011) 6 SCC 1 : (2011) 2 SCC (Cri) 782], this Court has referred to the decision in B. Saha case [B. Saha v. M.S. Kochar, (1979) 4 SCC 177 : 1979 SCC (Cri) 939] and laid down that the question of sanction has to be seen with respect to the stage and material brought on record up to that stage. Whether allegation of misappropriation is true or false is not to be gone into at this stage in considering the question whether sanction for prosecution was or was not necessary. The criminal acts attributed to the accused were taken as alleged. This Court has observed as under:
(Satyavir Singh Rathi case, SCC pp. 41-44, paras 87-88 & 94) "87. Both these judgments were followed in Atma Ram case [State of Maharashtra v. Atma Ram, AIR 1966 SC 1786 : 1966 Cri LJ 1498] where the question was as to whether the action of a police officer in beating and confining a person suspected of having stolen goods in his possession could be said to be under colour of duty. It was held as under: (AIR pp. 1787-88, para 3) '3. ... The provisions of Sections 161 and 163 of the Criminal Procedure Code emphasise the fact that a police officer is prohibited from beating or confining persons with a view to induce them to make statements.22 M.Cr.C. No.11791/2024
In view of the statutory prohibition it cannot, possibly, be said that the acts complained of, in this case, are acts done by the respondents under the colour of their duty or authority. In our opinion, there is no connection, in this case between the acts complained of and the office of the respondents and the duties and obligations imposed on them by law. On the other hand, the alleged acts fall completely outside the scope of the duties of the respondents and they are not entitled, therefore, to the mantle of protection conferred by Section 161(1) of the Bombay Police Act.'
88. Similar views have been expressed in Bhanuprasad Hariprasad Dave v. State of Gujarat, AIR 1968 SC 1323 : 1968 Cri LJ 1505 wherein the allegations against the police officer were of taking advantage of his position and attempting to coerce a person to give him bribe. The plea of colour of duty was negatived by this Court and it was observed as under: (AIR p. 1328, para 9) '9. ... All that can be said in the present case is that the first appellant, a police officer, taking advantage of his position as a police officer and availing himself of the opportunity afforded by the letter Madhukanta handed over to him, coerced Ramanlal to pay illegal gratification to him. This cannot 23 M.Cr.C. No.11791/2024 be said to have been done under colour of duty. The charge against the second appellant is that he aided the first appellant in his illegal activity.' * * *
94. In B. Saha case [B. Saha v. M.S. Kochar, (1979) 4 SCC 177 : 1979 SCC (Cri) 939] this Court was dealing primarily with the question as to whether sanction under Section 197 CrPC was required where a Customs Officer had misappropriated the goods that he had seized and put them to his own use. While dealing with this submission, it was also observed as under: (SCC p. 184, para
14) '14. Thus, the material brought on the record up to the stage when the question of want of sanction was raised by the appellants, contained a clear allegation against the appellants about the commission of an offence under Section 409 of the Penal Code. To elaborate, it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. Whether this allegation or charge is true or false, is not to be gone into at this stage. In considering the question whether sanction for 24 M.Cr.C. No.11791/2024 prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged.'"
(emphasis in original) This Court has held that in case there is an act of beating a person suspected of a crime of confining him or sending him away in an injured condition, it cannot be said that police at that time were engaged in investigation and the acts were done or intended to be done under the provisions of law. Act of beating and confining a person illegally is outside the purview of the duties."
15. Thus, it is clear that whether a person has committed an offence while acting or purporting to act in discharge of his official duty or not has to be construed strictly while determining its applicability to any act or omission in the course of service. But once any act or omission has been found to have been committed by public servant in discharge of his duty, then it must be given liberal and wide construction so far as its official nature is concerned. However, a public servant is not entitled to indulge in criminal activities. In view of the fact that permission to fill up the cracks was given with a clear rider that loose earth shall not be collected from the forest area and no machine shall be used, then the act of digging drain in the forest area for the purposes of collecting loose earth for filling cracks by using JCB was in utter violation of permission order.
16. Under these circumstances, it cannot be said that applicant was acting or purporting to act in discharge of his official duty. However, it is made clear that this finding is being given only on the basis of uncontroverted allegations made in the charge sheet. Therefore, the question as to whether applicant was acting or purporting to act in 25 M.Cr.C. No.11791/2024 discharge of his official duty is left open to be decided by the trial Court after recording of evidence.
17. However, there is another aspect, which is also required to be looked into. As per Section 197(1)(a) of Cr.P.C., this protection is available to a person who is employed or, as the case may be, was at the time of commission of alleged offence employee, in connection with the affairs of the Union, of the Central Government. Admittedly, the applicant is not the employee of the Central Government and he is the employee of SECL. Prima facie, it appears that applicant is not entitled for protection under Section 197 of Cr.P.C. at all. However, once again it is observed that this finding is being given on the basis of uncontroverted allegations but this question is kept open for the trial Court to decide the same after evidence is recorded.
Whether the applicant can run away from its liability by delegating his power to subordinate person or not?
18. It was vehemently argued by counsel for applicant that since applicant by issuing a letter had delegated his authority to Mine Manager/Colliery Manager and had directed him to strictly comply with the orders in conformity with the terms and conditions of the permission granted to fill up the cracks and patholes therefore, he is absolved from any criminal liability.
19. Considered the submissions made by the counsel for applicant.
20. The counsel for applicant was directed to point out from the Act/Rule/Guidelines/Circulars governing the operations and maintenance of mines to show that applicant had an authority to delegate his powers to the subordinate.
21. It is fairly conceded by counsel for applicant that there is no such Act/Rule/Guidelines/Circulars to that effect.
26 M.Cr.C. No.11791/202422. Thus, even assuming that applicant had delegated his authority to the Mine Manager/Colliery Manager to execute the work would not absolve the applicant from his criminal liability. On the contrary, it would establish that applicant was negligent in discharging his duties and was in habit of shredding his responsibilities by delegating it to the subordinates. Even in the application under Section 482 of Cr.P.C. the applicant in paragraph 4 has summarized the duties attached to his post, which reads as under:
"4. That Applicant is entrusted with multiple responsibilities in addition to oversee the entire mining operations which includes work related to industrial relations, colony welfare, sanctions and approvals etc. A total of 1500 (approximately) employees were directly/indirectly reporting to the Applicant when he was posted at Shahdol District."
23. Thus, it is clear that it was the duty of applicant to oversee the entire mining operations, which includes work related to industrial relations, colony welfare, sanctions, approvals etc. It is not the case of applicant that the work of filling of crack was not within his jurisdiction. Thus, if applicant had delegated his authority to Mine Manager/ Colliery Manager unauthorizedly and sat over the matter and did not supervise the work, then it is clear that he was gross negligent in discharge of his duties and in absence of any provision/power to delegate the authority to his subordinate, applicant cannot run away from his vicarious liability.
Mens rea
24. By referring to the drawing filed alongwith the charge sheet, it is submitted by counsel for applicant that it is true that drain was dug in forest area but it was situated in such a close proximity of mining area which had resulted in bonafide mistake by the contractor. It is further 27 M.Cr.C. No.11791/2024 submitted that the drain was dug at a place, which was100 meters away from the road, which is evident from the spot inspection. It is further submitted that this Court while exercising power under Section 482 of Cr.P.C. can consider surrounding circumstances to find out as to whether allegations are correct or not and can also read in between the lines. It is further submitted that there are material discrepancies in the statements of the witnesses and therefore, the statements of witnesses cannot be relied upon.
25. Considered the submissions made by counsel for applicant.
26. The counsel for applicant has relied upon the judgment passed by the Supreme Court in the case of Mahmood Ali (supra) in which it has been held as under:
"13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the 28 M.Cr.C. No.11791/2024 FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."
27. The Supreme Court in the case of Chilakamarthi Venkateswarlu and Another Vs. State of Andhra Pradesh and Another reported in (2020) 17 SCC 595 has held as under:-
"14. For interference under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief."
* * * * "16. The High Court should not, in exercise of jurisdiction under Section 482, embark upon an enquiry into whether the evidence is reliable or not, or whether on a reasonable appreciation of the evidence the allegations are 29 M.Cr.C. No.11791/2024 not sustainable, for this is the function of the trial Judge. This proposition finds support from the judgment of this Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 : 2005 SCC (Cri)
283.
17. The High Court may have an obligation to intervene under Section 482 of the Code in cases where manifest error has been committed by the Magistrate in issuing process despite the fact that the alleged acts did not at all constitute offences. Reference may be made to S.W. Palanitkar v. State of Bihar (2002) 1 SCC 241 : 2002 SCC (Cri) 129.
However, it is important to remember that while exercising powers under this Section, the High Court does not function as a court of appeal or revision.
18. The power under Section 482 CrPC should not be exercised to stifle legitimate prosecution. At the same time, if the basic ingredients of the offence alleged are altogether absent, the criminal proceedings may be quashed under Section 482 CrPC.
19. It is well settled that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is open to the High Court, exercising its inherent jurisdiction under Section 482 of the Code, to quash the order passed by the Magistrate taking cognizance of the offence. Reference may be made to M.A.A. Annamalai v. State of Karnataka, (2010) 8 SCC 524 : (2010) 3 SCC (Cri) 950, Sharda Prasad Sinha v. State of Bihar, (1977) 1 SCC 505 : 1977 SCC (Cri) 132 and Nagawwa v. V.S. Konjalgi (1976) 3 SCC 736 : 1976 SCC (Cri) 507. The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure the ends of justice. Such power cannot be exercised to do something which is expressly 30 M.Cr.C. No.11791/2024 barred under the Code. Reference may be made to Dharampal v. Ramshri, (1993) 1 SCC 435 : 1993 SCC (Cri) 333."
28. The Supreme Court in the case of State of Uttar Pradesh and Another Vs. Akhil Sharda and Others reported in 2022 Cri.L.J. 4374 has held as under:-
"7. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered.
(See Pratima (supra); Thom (supra); Rajiv (sup ra) and Niharika (supra).
7.1. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has allowed the petition under Section 482 Cr.P.C., we are of the opinion that the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.
7.2. It is also required to be noted that even the High Court itself has opined that the allegations are very serious and it requires 31 M.Cr.C. No.11791/2024 further investigation and that is why the High Court has directed to conduct the investigation by CB-CID with respect to the FIR No. 227 of 2019. However, while directing the CB-CID to conduct further investigation/investigation, the High Court has restricted the scope of investigation. The High Court has not appreciated and considered the fact that both the FIRs namely FIR Nos. 260 of 2018 and 227 of 2019 can be said to be interconnected and the allegations of a larger conspiracy are required to be investigated. It is alleged that the overall allegations are disappearance of the trucks transporting the beer/contraband goods which are subject to the rules and regulations of the Excise Department and Excise Law. 7.3. The High Court has quashed the criminal proceedings by observing that there was no loss to the Excise Department. However, the High Court has not at all appreciated the allegations of the larger conspiracy. The FIR need not be an encyclopedia (See Satpal v. Haryana, (2018) 6 SCC 610 Para 7).
7.4. Even otherwise, it is required to be noted that the allegation of missing of two trucks was the beginning of the investigation and when during the investigation it was alleged that earlier also a number of trucks were missing transporting contraband goods, the FIR should not have been restricted to missing of the two trucks only and return of on the goods thereafter. The High Court has not at all appreciated and/or considered the allegation of the larger conspiracy and that both the FIRs/criminal cases are interconnected and part of the main conspiracy which is very serious if found to be true. We however refrain from making any further observations as at this stage of proceedings as we are at the stage of deciding the application under Section 482 32 M.Cr.C. No.11791/2024 Cr.P.C. only and as the trial of both the cases have yet to take place. Therefore, we refrain from making any further observations which may affect the case of the either of the parties. Suffice it to say and mention that in the facts and circumstances of the case the High Court has committed a grave/serious error in quashing and setting aside the criminal proceedings arising out of Criminal Case No. 5694 of 2019 and Case Crime No. 260 of 2018 PS lodged under Section 406, registered at PS
- Husainganj, District - Lucknow."
29. In the case of Sunder Babu and Others Vs. State of Tamil Nadu reported in (2009) 14 SCC 244, Three-Judges Bench of Supreme Court has held as under:-
"8. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases.
"19. The section does not confer any new power on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise.33 M.Cr.C. No.11791/2024
Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicuiconcedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is 34 M.Cr.C. No.11791/2024 made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice.
In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise.
Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-
and-fast rule can be laid down in 35 M.Cr.C. No.11791/2024 regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage." [Ed. : As observed in Minu Kumari v. State of Bihar, (2006) 4 SCC 359 :
(2006) 2 SCC (Cri) 310, SCC at p. 366, paras 19-20.] (See Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305 :
1993 SCC (Cri) 36, Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1], Minu Kumari v. State of Bihar [(2006) 4 SCC 359 : (2006) 2 SCC (Cri) 310] and Priya Vrat Singh v. Shyam Ji Sahai [(2008) 8 SCC 232 : (2008) 3 SCC (Cri) 463 : (2008) 11 Scale 20].)
9. Consequently, the appeal deserves to be allowed. The proceedings in Criminal Petition No. CC No. 385 of 2000 pending before the Judicial Magistrate, Palladam, are quashed. The appeal is allowed."
30. Thus, it is clear that this Court at the stage of exercise of power under Section 482 of Cr.P.C. cannot embark upon an enquiry to find out as to whether the allegations made against the accused are reliable, correct or not? Even otherwise, during the course of arguments, the counsel for applicant had pointed out certain discrepancies in the statements of the witnesses. This Court has gone through the statements of the witnesses and do not find any discrepancy, which may go to the root of the case. Superficial discrepancies indicate that the witnesses were not narrating the statements like a parrot. Whenever, the statements of different persons are recorded, then there are bound to be 36 M.Cr.C. No.11791/2024 general differences. Minor discrepancies in the statements of the witnesses, which do not go to the root of the award be given undue importance.
31. Therefore, it is clear that the inherent jurisdiction, though wide and expansive, has to be exercised sparingly, carefully and with caution to prevent the abuse or process of any Court or otherwise to secure the ends of justice. The injustice should be of a grave and not of a trivial character and it should be palpable and clear and not doubtful. It has also been held in paragraph 17 that the High Court does not function as a Court of Appeal or Revision while exercising power under Section 482 of Cr.P.C.
32. The Supreme Court in the case of Ahmed Shah Khan Durrani @ A.S. Mubarak S. Vs. State of Maharashtra decided on 21st March, 2013 in Criminal Appeal No.1438/2007 has held that minor omissions contradictions, which do not go to the root of matter and are trivial in nature does not warrant undue importance for doubting the evidence.
Unless and until the discrepancy is a material omission or contradiction it cannot be given undue importance.
33. The Supreme Court in the case of Mritunjoy Biswas Vs. Pranab Alias Kuti Biswas and Another reported in (2013) 12 SCC 796 has held as under:-
"28. As is evincible, the High Court has also taken note of certain omissions and discrepancies treating them to be material omissions and irreconcilable discrepancies. It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue 37 M.Cr.C. No.11791/2024 emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (see Leela Ram v. State of Haryana [(1999) 9 SCC 525 :
2000 SCC (Cri) 222] , Rammi v. State of M.P. [(1999) 8 SCC 649 : 2000 SCC (Cri) 26] and Shyamal Ghosh v. State of W.B. [(2012) 7 SCC 646 : (2012) 3 SCC (Cri) 685] )."
34. The Supreme Court in the case of Shyamlal Ghosh Vs. State of West Bengal reported in (2012) 7 SCC 646 has held as under:-
68. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a 38 M.Cr.C. No.11791/2024 ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence.
Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mere marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution.
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
70. In terms of the Explanation to Section 162 CrPC which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context 39 M.Cr.C. No.11791/2024 shall be a question of fact. A bare reading of this Explanation reveals that if a significant omission is made in a statement of a witness under Section 161 CrPC, the same may amount to contradiction and the question whether it so amounts is a question of fact in each case. (Sunil Kumar Sambhudayal Gupta v. State of Maharashtra [(2010) 13 SCC 657 : (2011) 2 SCC (Cri) 375] and Subhash v. State of Haryana [(2011) 2 SCC 715 : (2011) 2 SCC (Cri) 689].)
71. The basic element which is unambiguously clear from the Explanation to Section 162 CrPC is use of the expression "may". To put it aptly, it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. If the legislative intent was to the contra, then the legislature would have used the expression "shall" in place of the word "may". The word "may" introduces an element of discretion which has to be exercised by the court of competent jurisdiction in accordance with law. Furthermore, whether such omission, variation or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is a contradiction or material contradiction which renders the entire evidence of the witness untrustworthy and affects the case of the prosecution materially."
35. The Supreme Court in the case of S. Govindaraju Vs. State of Karnataka reported in (2013) 15 SCC 315 has held as under:-
"23. It is well settled legal proposition that while appreciating the evidence, the court has 40 M.Cr.C. No.11791/2024 to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt."
36. The Supreme Court in the case of Sunil Kumar Sambhudayal Gupta (Dr.) and Others Vs. State of Maharashtra reported in (2010) 13 SCC 657 has held as under:-
"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, 41 M.Cr.C. No.11791/2024 embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan [(2008) 17 SCC 587 :
(2010) 4 SCC (Cri) 580 : AIR 2009 SC 152].)
31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh [(2009) 11 SCC 106 : 1998 SCC (Cri) 1605].)
32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P. [(2009) 11 SCC 334 : (2009) 3 SCC (Cri) 1352] )
33. In case, the complainant in the FIR or the witness in his statement under Section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State v. Sait [(2008) 15 SCC 440 : (2009) 3 SCC (Cri) 1037].)
34. In State of Rajasthan v. Kalki [(1981) 2 42 M.Cr.C. No.11791/2024 SCC 752 : 1981 SCC (Cri) 593 : AIR 1981 SC 1390], while dealing with this issue, this Court observed as under : (SCC p. 754, para 8) "8. ... In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. (See Syed Ibrahim v. State of A.P. [(2006) 10 SCC 601 : (2007) 1 SCC (Cri) 34 : AIR 2006 SC 2908] and Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130 : AIR 2009 SC 331].)
36. In Bihari Nath Goswami v. Shiv Kumar Singh [(2004) 9 SCC 186 : 2004 SCC (Cri) 1435] this Court examined the issue and held :
(SCC p. 192, para 9) "9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
37. While deciding such a case, the court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the 43 M.Cr.C. No.11791/2024 witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited."
37. The Supreme Court in the case of State of Uttar Prdesh Vs. Naresh And Others reported in (2011) 4 SCC 324 has held as under:
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed. : As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.] 44 M.Cr.C. No.11791/2024 Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580 : AIR 2009 SC 152] , Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130 : AIR 2009 SC 331] , Mahendra Pratap Singh v. State of U.P. [(2009) 11 SCC 334 :
(2009) 3 SCC (Cri) 1352] and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra [(2010) 13 SCC 657 : JT (2010) 12 SC 287] .]"
38. The Supreme Court in the case of Brahm Swaroop And Another Vs. State of Uttar Pradesh reported in (2011) 6 SCC 288 has held as under:
"32. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a 45 M.Cr.C. No.11791/2024 conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. (See State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48] , State of Rajasthan v. Om Prakash [(2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411 : AIR 2007 SC 2257] , State v. Saravanan [(2008) 17 SCC 587 :
(2010) 4 SCC (Cri) 580 : AIR 2009 SC 152] and Prithu v. State of H.P. [(2009) 11 SCC 588 : (2009) 3 SCC (Cri) 1502] )"
39. The Supreme Court in the case of Yogesh Singh Vs. Mahabeer Singh and Others reported in (2017) 11 SCC 195 has held as under:
"Discrepancies in evidence
29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the 46 M.Cr.C. No.11791/2024 prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi v. State of M.P. [Rammi v. State of M.P., (1999) 8 SCC 649 : 2000 SCC (Cri) 26] , Leela Ram v. State of Haryana [Leela Ram v. State of Haryana, (1999) 9 SCC 525 :
2000 SCC (Cri) 222] , Bihari Nath Goswami v. Shiv Kumar Singh [Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186 : 2004 SCC (Cri) 1435] , Vijay v. State of M.P. [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , Sampath Kumar v. Inspector of Police [Sampath Kumar v. Inspector of Police, (2012) 4 SCC 124 : (2012) 2 SCC (Cri) 42] , Shyamal Ghosh v. State of W.B. [Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 :
(2012) 3 SCC (Cri) 685] and Mritunjoy Biswas v. Pranab [Mritunjoy Biswas v. Pranab, (2013) 12 SCC 796 :
(2014) 4 SCC (Cri) 564] .)"
40. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that admittedly applicant was the In- charge of the mining operation, who was responsible for filling up of cracks. Permission was granted to fill up the cracks with a clear rider that the loose earth shall not be collected from the forest area and no machinery shall be utilized but not only the drain was dug in the forest area to collect the loose earth but JCB machine was also used. The defence of the applicant that since the forest area is situated in close proximity with the miming area, therefore, the mistake was committed 47 M.Cr.C. No.11791/2024 by the contractor is a defence and is a disputed question of fact, which cannot be adjudicated by this Court while exercising power under Section 482 of Cr.P.C.
41. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
42. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE SR* Digitally signed by SHANU RAIKWAR Date: 2024.04.29 14:54:51 +05'30'