Patna High Court - Orders
Manju Kumari Sah vs The State Of Bihar on 17 May, 2013
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.19847 of 2012
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1. Manju Kumari Sah W/O Umesh Prasad R/O Village - Rasalpura, P.S.
Doriganj, District - Saran ( Chapra ) .... Petitioner
Versus
1. The State Of Bihar .... Opposite Party
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
4 17-05-2013This is a petition for quashing the order, dated 16.03.2012, passed by the Chief Judicial Magistrate, Katihar, in Balrampur P.S. Case No. 41 of 2011, by which the Court below has been pleased to take cognizance for offence under Sections 418, 149, 420, 467, 468, 471 and 474 of the Penal Code.
The first information report has been lodged on the letter of the District Magistrate, Katihar. It has been alleged that from the office of the District Magistrate by letter no. 32, dated 19.05.2010, the supplementary permanent waiting list, 2009, Panchayat wise, was made available to the Block Development Officer, Balrampur, for confirmation by Gram Sabha, the Block Development Officer, Balrampur, vide letter no. 65, dated 21.01.2011, made available the confirmation list in print out and it was found that there is change in the names of the beneficiaries in the list and their fathers' names in the supplementary permanent waiting list, 2009, and except nine persons out of ninety the names of eighty one persons have been changed and manipulated The prosecution case as alleged in the first information report and the material available in case diary during investigation that permanent waiting list, 2009, was prepared of the persons below poverty. The names of some persons were left over in the said list and, then, again, an inspection was made and on that basis a supplementary permanent waiting list, 2009, of the said Balrampur block was prepared and this waiting list was sent to the District Rural Development Authority, Katihar, through the Sub Divisional Officer, Barsoi, and it was disclosed that in the said list on the basis of marks allotted on different consideration, the Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 2 persons having lesser marks are eligible for Indira Awas earlier and the list has been prepared in the descending order that the persons having obtained lesser marks shall got the Indra Awas prior to the persons, who has got higher marks. The said list was prepared by District Rural Development Authority and sent to the Block Development Officer, Balrampur, Mukhiya and Sarpanch of Gram Panchayat, Rampur Harder, for confirmation of the said list of the Gram Sabha of Panchayat. The said list was returned by the accused Sadan Kumar Rai and Vijendra Rai as well as the Block Development Officer under their signatures to the District Rural Development Authority's office and in the District Rural Development Authority's office it was found that there is manipulation in the waiting list and in the waiting list the name of 81 persons have been changed with father's name. An explanation, called for from the accused persons, was found to be not satisfactory and it was found that the Block Development Officer was required to compare the list. she joined the Mukhiya and Sarpanchsent in signing the list, which has interpolation/changing the names of 81 persons with change in their fathers' names. It is alleged that the change of 81 names amount to forgery and fraud. If the list would have been accepted then there may have been loss of Rs.36/- lakhs and, hence, on the report the cognizance was taken against the petitioner as well as Mukhiya and Panchayat Secretary. The police after investigation submitted the charge sheet for offence under Sections 418, 149, 420, 467, 468, 471 and 474 of the Penal Code and cognizance has been taken.
The learned counsel for the petitioner submits that there is no pecuniary loss to Government as the list was not acted upon. It is, further, contended that no offence is made out against the petitioner as the petitioner has not been attributed with a role to change the names of beneficiaries or their fathers' names in the list, but, has been attributed that she has only sent the list without Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 3 verification of the names with previous list. Hence, she can only be attributed with negligence on her part to compare the list and there is no need to initiate a criminal proceeding, but, in such a case the departmental proceeding may be sufficient. It has, further, been contended that even if the act constitutes an offence the act alleged to have been committed during the discharge of official duty and, hence, requires protection under Section 197 of the Criminal Procedure Code and the cognizance taken suffers from the illegality that cognizance has been taken without sanction is bad in law. It has, further been contended that the previous sanction of compete authority is a condition precedence for the Court in taking cognizance and has placed reliance on various decisions reported in (2012) 1 S.C.C., 748 (Hardeep Singh Vrs. State of Madhya Pradesh), 2013 (1) P.L.J.R., 248 (Krishna Mohan Prasad Vrs. State of Bihar & Anr.), (2008) 5 S.C.C., 248 (Anjani Kumar vrs The State of Bihar & Anr.) and (1999) 3 S.C.C., 284 ( N.K. Ogle Vrs. Sanwaldas @ Sanwalmal Ahuja) The learned counsel for the State submits that offence alleged that there is interpolation/change of the names of 81 beneficiaries along with their fathers' names out of 91, itself, indicates about forgery and fraud to accommodate others causing loss to the real and actual beneficiaries in the false name of other and apparently makes out an offence and the petitioner joins in signing the document, i.e., the changed or interpolated list along with co-accused for sending back the said list for consideration. It can not be deemed to be a bona fide mistake in discharge of official duty. It is, further, contended that the cognizance is taken with regard to offence on allegation that the petitioner has also signed along with other accused changing the names of persons to defraud the beneficiaries. It has, further, been contended that the protection under Section 197 of the Criminal Procedure Code is not required to person for such act of fraud and forging in pretext Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 4 deemed to have been done in discharge of duty and the submission that the petitioner has only attributed the role of being negligent is not acceptable as she is also amongst the persons, who have signed the list with a change of 81 names along with other accused and is not merely a person to have forwarded it. It can well be inferred that they have committed the offence deliberately and the defence set up of negligence is only is fanciful and pretence in protest that act has been done in discharge of official duty.
Taking the respective submissions, the question for consideration whether an offence alleged makes out an offence or not and whether the petitioner is entitled for protection under Section 197 of the Criminal Procedure Code and order taking cognizance is bad for want of sanction.
However, the allegation made that a supplementary list prepared and the persons whose names left out in below poverty line list prepared in descending order that the persons attributed number on certain condition having lesser number shall got Indira Awas prior to the persons having greater number. The list sent for confirmation by Gram Sabha by the District Rural Development Authority to the Block Development Officer, Sarpanch and Mukhiya and the list sent with interpolation or changing the names of 81 persons from the list with the signature of all the three, including the petitioner, and the change is change of names of 81 persons from a list of 90. The learned counsel for the petitioner has challenging the allegation that the petitioner was not a person alleged to have been indulged in manipulating the names of beneficiaries or even changing the fathers' names and she may be deemed to have sent the list without comparing the names sent for approval. However, going into the allegation and perusal of case diary, it is apparent that the list sent back to District Rural Development Authority bears the signatures of the petitioner, along with the signatures of the Mukhiya and Sarpanmch, who are the co-accused. So the argument that the petitioner only sent the Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 5 list without comparing it rather the petitioner appears to be an active participant.
Hence, the argument that she may not be attributed the role for change in the name of the beneficiaries and their fathers' names does not stand to reason. It can not be said that she has no role for such interpolation or change of the names of the beneficiaries and the defence that she only did not compare the list sent the list negligently can not be considered at this stage of taking cognizance and more over the cognizance is taken for the offence and not the offender. The petitioner may raise the issue at the stage of trial or at appropriate stage and, hence, the submission that no offence made out as there is only negligence on her part in sending the forged/changed list is not sustainable. However, the loss to Government or not, is of no consequence, once the allegation made makes out an offence.
The next question for consideration is whether the order taking cognizance is bad for want of sanction, taking into consideration Section 197 of the Criminal Procedure Code. However, it is well settled that principle enshrined for the protection given under Section 197 of the Criminal Procedure Code is to protect responsible public servant and the institution of vicious criminal proceeding alleged to have committed by them while they are acting or purporting to act as public servant and the policy of the legislature is to assure adequate protection to public servant to ensure that they are not prosecuted if anything done by them in discharge of their official duty without reasonable cause and any excuse will not be sufficient ground to deprive the public servant from the protection. However, the protection has certain limits and is available only when the act alleged has been done by the public servant is reasonably connected with the discharge of his official duty and is not merely a clock for doing objectionable act and under the colour of duty can not be camouflaged to commit the crime. It is no part of official duty to commit a crime Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 6 or offence and it never can be. However, in the name of public duty a person may not be allowed to fabricate the record and misappropriate the public fund and commit the crime and such activity definitely can not be said to be integrally connected or in separately linked with act done by the public servant in the purported discharge of his official duty and can not in any manner be brought under the protective umbrella of protection under Section 197 of the Criminal Procedure Code. Hence, the allegation made against the petitioner for manipulating the names of beneficiaries can not be protected and order can not be held to be bad for want of sanction as the act alleged can not be said to have been done in discharge of official duty.
The learned counsel for the petitioner, however, placed strong reliance of decision reported in A.I.R. 2000 S.C., 3187 (Abdul Wahab Ansari Vrs. The State of Bihar & Anr.) on the proposition that the matter of cognizance can be raised at any stage of taking cognizance or even at the stage of taking cognizance or after taking cognizance and contends that the petitioner having alleged to have singed the document in the exercise of official duty and, hence, requires protection under Section 197 of the Criminal Procedure Code and, hence, order taking cognizance suffers from want of sanction.
It is true that in decision reported in A.I.R. 2000 S.C., 3187 (supra) relied upon by the learned counsel for the petitioner mentions that previous sanction of the competent authority is the precondition that the Court in taking cognizance of the offence, however, this condition applies if the offence alleged to have been committed by the accused can be said to be act in discharge of his official duty and there the question arises whether the act alleged squarely covered as has been done in discharge of official duty. However, if the facts and circumstances of the case does not indicate that the act alleged falls within the four square of the act done in official duty, then, only the principles apply otherwise not.
Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 7Hence, it depends upon fact-to-fact and the question for consideration whether the act alleged covered to have been done in discharge of his official duty. However, the act alleged in the facts and circumstances of the case is that names of 81 persons were interpolated or changed from the list along with the father's names and, hence, it amounts to act on fraudulent/forgery in the official record, which adversely affect the beneficiaries of the below poverty line, whose names were selected by the authorities and were sent for confirmation by the Gram Sabha and the manipulation and changing the names of the beneficiaries from the record indicates an act of forgery in collusion with the Mukhiya and Sarpanch as the list contains the names of the petitioner, Mukhiya and Sarpanch and now the question concerned whether there is a nexus between the act alleged and the official duty. However, the official duty does not permit to commit the forgery in official record, the act must bear such relation of the duty that the accused could lay a reasonable claim, but, not the pretence or fanciful claim that he did it in course of performance of the duty. A duty can not be said to do a crime and doing a crime can not be said to be done in the discharge of the official duty. The Section 197 of the Criminal Procedure Code does not extend it's protective cover to every act or omission done by the public servant in service, but, only restrict it's scope of operation to only those act or omission which are done by a public servant in discharge of his official duty. For instance, a public servant is entitled to indulge in criminal activity and to that extend the Section has to be construed narrowly and in restricted manner. Hence, the protection under Section 197 of the Criminal Procedure Code is not required to protect the petitioner and principle decided in A.I.R. 2000 S.C., 3187 (supra) is not attracted.
The learned counsel for the petitioner, however, relied on the decision reported in (2012) 1 S.C.C., 748 (Hardeep Singh Vrs. State of Madhya Pradesh), 2013 (1) P.L.J.R., 248 Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 8 (Krishna Mohan Prasad Vrs. State of Bihar & Anr.), (2008) 5 S.C.C., 248 ( Anjani Kumar vrs The State of Bihar & Anr.) and (1999) 3 S.C.C., 284 ( N.K. Ogle Vrs. Sanwaldas @ Sanwalmal Ahuja) for proposition that act done by public servant were done in discharge of duty and were given the benefit of Section 197 of the Criminal Procedure Code. However, the facts of those cases are quite different from the fact of this case. The crux of the matter is that there must be reasonable connection between act alleged and the performance of official duty. It depends upon the facts and circumstances of the case to case. In case reported in (2012) 1 S.C.C., 748 (supra) filed by proprietor of coaching institute against the Collector as counter blast in retaliation to arranging a trap on information of his selling question of pre-medical test and protection was given to the Collector The decision reported in (2008) 5 S.C.C., 248 (supra) was a complaint filed against the Government's servant or official as a counter blast to the action taken by him in his official duty and the fact shows that the complaint was an after thought to rope in the appellant on account of action taken by him against respondent no. 2. in the case reported in (1999) 3 S.C.C., 284 ( N.K. Ogle Vrs. Sanwaldas @ Sanwalmal Ahuja) in which the Tahsildar on the order of the District Collector to recover certain sum got the amount realized by auctioning the scooter and in retaliation a case was filed by the person, whose scooter was auctioned after seize and it was held that the Tahsildar was under a bona fide act purported in discharge of his duty and, hence, the decision relied upon by the learned counsel for the petitioner neither in principle nor under the fact of the case in a category that a principle decided in those cases are applicable to this case. The decision reported in 2013 (1) P.L.J.R., 248 (Krishna Mohan Prasad Vrs. State of Bihar & Anr.) in which the fact was that the Block Development Officer was not recommending Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 9 honorarium payment on misplacement of relevant file by the complainant and the plea that it is not mandatory to obtain sanction before taking cognizance and thereunder the facts and circumstances it was held that the payment of the appellant has already been held by the authority as illegal and Up-Sarpanch sent absentee report to complainant mentioning that his work was zero and as per the Government's instruction the payment had to be made on the basis of actual work done, hence, held that no offence is made out.
The word any, offence alleged to have been committed by him while acting or purported to act in discharge of his official duty used in Section 197 of the Criminal Procedure Code may have narrow or wide interpretation. The question is what interpolation to be given with regard to offence alleged to have done by public servant during his service. It is not that every offence committed by public servant while engaged in performance of duty is protected under Section 197 of the Criminal Procedure Code. It is only an act constituting the offence directly and reasonably connected with his official duty will require sanction. If the act alleged constituting the offence has no nexus with official duty or can not be directly and reasonably connected with duty to that extent, Section 197 of the Criminal Procedure Code has to construe narrowly. However, once, act done is directly a reasonably connected with duty the scope may be extended. There may be circumstance when police officer in discharge of his duty may have used force which may be an offence for which sanction may be necessary or instances such alike a public officer in duty acted in excess of his/her duty. So the excess may not be ground to deprive from protections. But, if a person commits an act constituting an offence not connected with discharge of duty without any justification to do the act, then, protection under Section 197 of the Criminal Procedure Code is not attracted or required.
Patna High Court Cr.Misc. No.19847 of 2012 (4) dt.17-05-2013 10The decisions relied upon are with regard to an act constituting offence alleged has been found to be act done in discharge of duty so the protection has been provided.
However, the act alleged in the present facts and circumstances of the case is that the list of beneficiaries received for confirmation of the Gram Sabha was sent by changing the names of the beneficiaries along with the change in their fathers' names in supplementary permanent waiting list and names of 81 persons out of 90 have been changed de-voiding the beneficiaries of the fruit fraudulently amounts to fraud and forgery constituting offence. The act alleged can not be said to have been done in discharge of duty and the act is deliberate, hence, the petitioner is not entitled to protection under Section 197 of the Criminal Procedure Code.
Hence, I do not find any merit in this case.
This application is dismissed.
(Gopal Prasad, J) A.F.R. SA/-