Madras High Court
J. Murugesan vs The State Rep. By Deputy Superintendent ... on 11 February, 2004
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT
1. The revision has been filed against the order of the learned Judicial Magistrate No.2, Cheyyar made in Crl.M.P.No.3911 of 2002 in C.C.No.147 of 2002.
2. A1, the petitioner herein filed preliminary objections on the ground that no sanction was obtained to prosecute him before launching prosecution as prescribed by the provision under Section 197 Cr.P.C., Learned Magistrate has dismissed the application on the sole ground that already charges have been framed and therefore his objection is not maintainable.
3. Learned counsel for the revision petitioner would contend that earlier when he filed Crl.O.P.No.22827 of 1999, this court has observed as follows:
"4. It is now submitted by Additional Public Prosecutor that the investigation has already been completed and sanction is awaited from the Authority concerned. This submission by the learned Additional Public Prosecutor would show that they have collected some materials and filed a report before the sanctioning Authority along with the requisition asking for sanction. At this stage, I do not find any reason to quash the FIR, especially when it is represented that the investigation has been completed. Hence the petition is dismissed. Consequently, the connected Crl.M.P is also dismissed."
When it is admitted that they are going to get sanction of the concerned authority, before getting sanction and filing charge sheet without sanction is hit by Section 197 of Cr.P.C. Earlier the petitioner also filed Crl.O.P.No.27075 of 2002 in Crl.M.P.Nos.11173 and 11174 of 2002 wherein this court has observed as follows in its order dated 12.11.2002:
"5. At this stage it is not proper for this court to enter into the question of sanction, since it may affect adversely either party. As already this court has declined to quash the investigation and the FIR I am not inclined to entertain this application for quashing the proceedings pending in the Calendar Case. The petitioner is at liberty to raise the preliminary objection before the trial court regarding non obtaining of sanction."
As directed by this court as referred to above, the petitioner has filed preliminary objection which was dismissed by the impugned order.
4. A perusal of the materials on record would clearly show that on 6.10.97 in Rc.No,Camp/ADGP/(C)/27/97, dated 06.10.97 issued by the Addl.Director General of Police (Crime), it is mentioned as follows:
"(B) Though in the complaint, Thiru. M. Murugesan, Executive Engineer and Thiru Babu, Assistant Engineer have been cited as accused, the reports submitted by Thiru D. Sankaragururaman, Scientist and Thiru. R. Nadimuthu, Superintending Engineer, PWD do not disclose their involvement in the offence.
(C) The specific overt acts of the accused have not been stated in the complaint."
During the course of argument the prosecution produced two letters one written by Mr. Kasi Viswanathan IAS and the other by Mr.K. Deenabandu IAS as Managing Director of TWAD Board wherein the signatures of the said officers were absent. In the letter dated 28.9.2001 purported to have Letter No.5034/Estt.(DP.I)/A2/97-59, and issued by Mr.K. Deenabandu, Managing Director of TWAD Board it has been mentioned that after careful consideration of the materials put before him, it is decided to give sanction to prosecute Mr.M. Anbazhagan, AEE, K. Babu, AE and B. Ravindran, A.E as they are directly involved in this case. However, the involvement of Thiru. J. Murugesan, E.E, is not made out clearly. and hence he requested the DSP of Police to give additional clinching evidence against the petitioner so as to enable him to consider the petitioner's involvement in this case and to give orders of sanction to prosecute him. So also another proceedings purported to have been issued by Mr.A.M. Kasiviswanathan IAS wherein though it is mentioned that sanction was accorded for prosecuting this petitioner alongwith three others, actually the sanction order was not signed and was also not produced before the court. In Crl.O.P.No.22827 of 1999 in Crl.M.P.No.11165 of 1999, the Additional Public Prosecutor has represented before this court that sanction is awaited from the authority concerned and on that ground FIR was not quashed in the order dated 13.9.2001. When the prosecuting Agency has submitted before this court that they are awaiting sanction and on that basis the Crl.M.P. was dismissed, I am at a loss to understand as to why the sanction was not not obtained to prosecute the petitioner. The case against the petitioner and the others is that they have committed offences punishable under sections 409, 465, 466, 468, 471 and 420 IPC r/w 120(B) and 109 IPC in connection with a project work for laying pipelines in 17 habitations in Cheyyar, Tiruvannamalai District which resulted in loss to the Government in several lakhs of rupees. All the overt acts said to have been committed by the petitioner were in the course of his employment as a public servant. Therefore sanction to prosecute the petitioner is absolutely necessary. In the decision reported in Gauri Shankar Prasad Vs. State of Bihar and Another , the Supreme Court has held as follows:(Paras 7&8) "7. Section 197 Cr.P.C affords protection to a Judge or a magistrate or a public servant not removable from his office save by or with the sanction of the Government against any offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. The protection is provided in the form that no court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government as the case may be. The object of the section is to save officials from vexatious proceedings against Judges, magistrates and public servants but it is no part of the policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rules laid down in Section 190 Cr.P.C., that any offence may be taken cognizance of by the Magistrate enumerated therein. Before this section can be invoked in the case of a public servant two conditions must be satisfied i.e., (1)that the accused was a public servant who was removable from his office only with the sanction of the State Government or the Central Government; and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
8. What offences can be held to have been committed by a public servant while acting or purporting to act in the discharge of his official duties is a vexed question which has often troubled various courts including this Court. Broadly speaking, it has been indicated in various decisions of this Court that the alleged action constituting the offence said to have been committed by the public servant must have a reasonable and rational nexus with the official duties required to be discharged by such public servant."
In the decision reported in N.K. Ogle Vs. Sanwaldas Alias Sanwalmal Ahuja , the Supreme Court has held as follows:(Paras 8&10) "8. The Constitution Bench decision of this Court in Matajog Dobey case, clearly enunciates where a power is conferred or a duty is imposed by a statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. The court was considering in the said case the allegation that the official authorised in pursuance of a warrant issued by the Income Tax Investigation Commission in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put, the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him mercilessly causing injuries and for such an act, a complaint had been filed against the public officers concerned. This court, however, came to hold that such a complaint cannot be entertained, without a sanction of the competent authority as provided under Section 197 CR.P.C., This Court had observed that before coming to a conclusion whether the provisions of Section 197 of the Code of Criminal Procedure will apply, the court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim that he did it in the course of the performance of his duty. Applying the aforesaid ratio to the case in hand, the conclusion ins inescapable that the act of the Tehsildar in seizing the scooter of the respondent was in discharge of his official duty which he was required to do on the basis of the order issued by the Collector for getting the lease money from the respondent and the said act cannot be said to be a a pretended or fanciful claim on the part of the Tehsildar. The High Court, in our view, committed error at that stage in examining the flaw or legality of the order of attachment issued by the Tehsildar.
9. .........
10. In the aforesaid circumstances and in view of our earlier conclusions as to the circumstances under which the order of attachment was issued and the scooter was seized, we have no hesitation to hold that the acts complained of by the respondent against the Tehsildar had been committed in discharge of the official duty of such Tehsildar and, therefore, no cognizance can be taken by any court without prior sanction of the competent authority. Admittedly, there has been no such sanction of the competent authority."
In the decision reported in Rizwan Ahmed Javed Shaikh Vs. Jammal Patel the Supreme Court has held as follows: (Paras 15&16):
"15. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected.
16. In the case at hand cognizance against the accused persons has not been taken under Section 323 IPC. It appears that the complaint stated the complainants to have been "mercilessly beaten" by one of the accused persons whilst in custody but when one of the complainants was examined by the learned Magistrate he stated only this much that one of the police officers had assaulted him. The statement was too vague to be acted upon and hence cognizance for causing hurt to any of the complainants has not been taken by the learned Magistrate. None of the complainants has made any grievance about it. The cognizance taken is only under Section 220 (commitment for trial or confinement by person having authority who knows that he is acting contrary to law) and Section 342 (wrongful confinement) of the Indian Penal Code. Cognizance has also been taken for offences under Section 147 (vexatious injury, search, arrest etc. by police officer) and Section 148 (vexatious delay in forwarding a person arrested) of the Bombay Police Act, 1951. Cognizable and non-bailable offences were registered against the appellants. They were liable to be arrested and detained. The gravamen of the charge is the failure on the part of the accused persons to produce them before a Magistrate within 24 hours of arrest. The complainants were in the custody of the police officers and at the police station. It cannot be denied that the custody which was legal to begin with became illegal on account of non-production of the complainants before the Magistrate by the police officers officially detaining the appellant at a place meant for detaining the persons suspected of having committed an offence under investigation. The act constituting an offence alleged to have been committed by the accused-respondents was certainly done by them in their official capacity though at a given point of time it had ceased to be legal in spite of being legal to begin with. On the totality of the facts and circumstances of the case in our opinion the learned Magistrate and the High Court have not erred in holding the accused-respondents entitled to the benefit of protection under Section 197(2) Cr.P.C. We have felt it unnecessary to deal with the allegation made in the complaint relating to beating of the appellants whilst in police custody because no cognizance has been taken for an offence in that regard and no cognizance can now be taken because of the bar of limitation enacted by Section 468 Cr.P.C."
Considering the principles as laid down by the Honourable Supreme Court, the prosecution ought to have obtained sanction to prosecute the revision petitioner. In fact , a perusal of the records would go to show that the prosecution attempted to get sanction to prosecute the petitioner, but failed to get sanction. As already mentioned, the prosecution even before this court also mentioned during the hearing in Crl.O.P.No.22827 of 1999 that they are awaiting sanction from the concerned authorities. But sanction has not been obtained and the charge sheet has been filed without sanction.
5. The contention of the learned public prosecutor is that the trial has started and therefore this plea cannot be raised at this stage. The petitioner has been raising this plea of sanction from the very beginning. Even before filing that charge sheet, he has raised this plea as mentioned earlier in Crl.O.P.No.22827 of 1999. But the prosecution told this court that sanction is awaited. Thereafter, the petitioner also filed Crl.O.P.No.27075 of 2002, wherein this court directed the petitioner to raise his objections as preliminary objections. Therefore, it is not the first time the petitioner is raising this plea of failure to get sanction after filing of the charge sheet. In the decision reported in Abdul Wahab Ansari Vs. State of Bihar (2001 SCC (Cri) 18), the Supreme Court has held as follows: (Paras 6&7) "6. So far as the first question is concerned, a plain reading of the provisions of Section 197 makes it crystal clear that the Court is prohibited from taking cognizance of the offence except with the previous sanction of the competent authority. For a better appreciation of the point in issue, Section 197(1) is quoted hereinbelow in extenso:
"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 cognisance 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.
7. Previous sanction of the competent authority being a precondition for the court in taking cognizance of the offence in the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain V. Pandey Ajay Bhushan a similar contention had been advanced by Mr. Sibal, the learned Senior counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted. Rejecting the contention, this Court had observed (SCC pp.217-18, para 23) "The legislative mandate engrafted in sub-section 1 of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings.
The Court had further observed (SCC pp.218-19, para 24) "The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the Court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises, we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority."
6. Therefore, it is clear that the prosecution has filed this case against the petitioner before getting proper sanction and therefore, the impugned proceedings against the petitioner are liable to be quashed and accordingly the same is quashed. Revision is allowed.