Calcutta High Court (Appellete Side)
Sri Swarup Sikdar vs The State Of West Bengal on 26 August, 2011
Author: Asim Kumar Ray
Bench: Asim Kumar Ray
1
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
C.R.R. No. 653 of 2011
Sri Swarup Sikdar
-Vs-
The State of West Bengal
Present :
Hon'ble Justice Asim Kumar Ray
For the Petitioner : Mr. Sudipto Moitra
Mr. Ashok Das.
For the O.P. : Mr. Swapan Kumar Mallick
Heard On : 14.7.2011,20.7.2011
Judgment On : 26 -8-2011
Asim Kumar Ray, J.
This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure challenging the order dated 8-12-2010 passed in Special Case No. 2 of 2008 by learned Judge, Special Court , Murshidabad thereby fixing a date for framing charge against the accused person/petitioner and others.
2The factual background in a nutshell is that this Court passed an order in writ petition No. 2602(w) of 2002 on 8-2-2002 directing Vigilance Commissioner , West Bengal to hold an enquiry in respect of allegation made in the said writ application and submit a report before the Hon'ble Court . The vigilance commissioner accordingly submitted a report but the writ application was ultimately not placed for final adjudication . The report of the vigilance commissioner was forwarded to officer-in-charge , Sagardighi police station , District-Murshidabad by District Panchayat and Rural Development Officer , Murshidabad. On the basis of such report , Sagardighi P.S. Case No. 102 of 2005 dated 2-9-2005 under Sections 166/167/406/409/420/469/471/120B of the Indian Penal Code was initiated against the petitioner and others. There was allegation that the accused person being member of block level selection committee , Sagardighi Block adopted corrupt practice by making interpolation and overwriting in the answer script and gave appointment to six candidates to the post of Sahayak at eight gram panchayat under Sagardighi block in the year 2000 in lieu of unlawful gain. The petitioner was arrested and subsequently enlarged on bail . Charge sheet submitted. On the date of consideration of charge the petitioner submitted an application before the learned Judge, Special Court stating that the charge sheet has been submitted by the investigating officer without obtaining valid sanction. It was submitted further that an order of sanction to prosecute the petitioner was accorded to by the District Magistrate , Murshidabad though he was not the competent authority. The proceeding can not be proceeded with against the petitioner. The submission was not accepted and date was fixed for framing charge against the petitioner and other accused persons. So this revisional application.
Mr. Sudipto Moitra, learned senior advocate appearing for the petitioner has contended that the petitioner is a member of West Bengal Civil Service (Executive) 3 and was appointed by the Governor vide Notification No. 2179/P.A.R. (W.B.C.S)(I.D. 51/94, Calcutta), 5th August, 1994. The report of the Vigilance Commissioner which was treated as first information report speaks about an allegation against the petitioner saying that the alleged offence was committed by the petitioner while discharging his official duties as Block Development Officer at Sagardighi. He has further contended that charge sheet has been submitted under Section 409 of IPC along with other sections. The offence punishable under Section 409 of IPC only be committed by public servant and the very allotment of the case to the learned Judge, Special Court , Murshidabad clearly established that the offences alleged to have been committed by the petitioner in discharge of the duty as public servant . He has contended further that Section 197 of the Code of Criminal Procedure places an embargo to take cognizance of the offence by the Court against the public servant in respect of an offence alleged to have been committed in discharge of official duty and the sanctioning authority is the appointing authority . In the instant case purported sanction under Section 197 of the Cr. P.C. was not granted by the Government of West Bengal but by the District Magistrate , Murshidabad who is neither the appointing authority nor the authority who can remove the petitioner from his service . Therefore the very initiation of the proceeding is vitiated by taking cognizance of the offence without having any proper sanction. The proceeding pending before the learned Court below if allowed to be continued will be an abuse of the process of the Court. It may be quashed. Mr. Moitra has relied on the following decisions reported in:
1. 1998 SCC (Cri) 1 [ Suresh Kumar Bhikamchand Jain -vs- Pandey Ajay Bhushan and Ors. ]
2. (2004) 2 SCC 349 [State of H.P. -vs- M.P.Gupta ]
3. (2006) 2 SCC (Cri) 358 [ Sankaran Moitra -vs- Sadhna Das and anr. ] 4
4. (2008) 2 AICLR 150 [Raghunath Anant Govilkar -vs- State of Maharashtra and Ors. ]
5. (2009) 3 SCC (Cri) 531[P.K.Chowdhury- vs- Commander, Border Road Task Force] Mr. S.K.Mallick, learned advocate appearing for the State/O.P. has contended that the alleged act/action of the petitioner has no nexus with his official duty. Sanction is, therefore, not required to prosecute him. He has placed the decisions reported in (2009) 1 SCC (Cri) 130 [Raghunath Anant Govilkar -vs-
State of Maharashtra and Ors. ] and 2001 SCC (Cri) 1234 [P.K.Pradhan -vs- State of Sikkim ] in support of his contention.
At the outset the order impugned i.e. order No. 22 dated 8-12-2010 may be looked into and the same is quoted hereunder.:
" Out of three accused persons on C.B. two are present and accused Pradyut Kumar Das is absent by petition. Ld. Sr. Defence lawyer and Ld. P.P. are present. Today is fixed for order on the point of framing of charge.
I have gone through the entire materials on record as well as the case diary. This is a case U/s 409 I.P.C. On perusal of the materials on record, this Court is not in a position to decide the matter without taking recourse to evidence and this Court is also of the view that there is materials to frame charge against the accused persons U/s 409/468/471/120B I.P.C. So fix 12.1.11 for framing of charge . All the three accused persons must remain present on the date fixed."
On perusal of the afroequoted order it transpires that the learned Court had arrived at a finding that there is materials to frame charge against the accused 5 persons under Sections 409/468/471/120B of the IPC and a date was fixed for framing of charge. The order itself says that on 8-12-2-2010 the charge was not framed against the petitioner and other accused persons though it has taken by the petitioner in his revisional application (para 7 of the revisional application) that on that very date the charge under Sections 409/468/471/120B of IPC has been framed. All the three accused persons were not present on 8.12.2010 before the learned Judge, so question of framing charge on that date does not arise. Be that as it may.
It may not be out of place to examine the nature of direction to be exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant prior to examining if learned Court below committed any error of law fixing a date for framing charge. Relevant portion of Section 197 of the Code reads 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 6 acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government."
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 person to whom the protection is afforded but it also specifies the condition and circumstances in which it shall be available and the effect in law if the conditions are satisfied.
The Privy Council in H.H.B. Gill -vs R. (AIR 1948 P.C. 128) held that:
" A public servant can only be said to act or to purport to act in the discharge of his official duty , if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining , though the examination itself may be such an act. The test may well be whether the public servant, if challenged , can reasonably claim that, what he does , he does in virtue of his office."
In Shreekantiah Ramayya Munipalli -vs- State of Bombay (AIR 1955 SC 287 ) and Amrik Singh -vs- State of Pepsu ( AIR 1955 Sc 309) , the Hon'ble Apex court has held that it is not every offence committed by public servants which requires sanction for protection under Section 197 of the Code , nor even every act done by him while he is actually engaged in the performance of his official duty.
In the case of Amrik Singh -vs- State of Pepsu (supra) upon a detailed discussion the Hon'ble Apex Court was of the view that if the discharge of official 7 duty and the act of the accused complained of are inseparable , sanction under Section 197 of the Code would be necessary . The Hon'ble Court observed further that " if the acts complained of are so integrally connected with the duties attending to the office has to be inseparable from them, then , sanction under Section 197 (1) would be necessary but if there was no necessary connection between them and the performance of those duties , the official status furnishing only the occasion or opportunity for the act, thus no sanction would be required."
In Matajog Dobey -vs- H.C. Bhari (AIR 1956 SC 44) , the Hon'ble Apex Court has held :
" 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 he did it in the course of the performance of his duty."
In P.Arul Swamy -vs- State of Madras (AIR 1967 SC 776) the Hon'ble Apex Court held as under :
" 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 this 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 8 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."
In B.Saha -vs- M.S.Kochar (1979 SCC (Cri) 939), the Hon'ble Supreme Court has held :
" 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 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 provisions."
In P.K.Pradhan -vs- State of Sikkim (2001 SCC (Cri) 1234) , the Hon'ble Apex Court has held :
" The legislative mandate engrafted in sub-section (1) of Section 197 touches the jurisdiction of the Court itself . It is a prohibition imposed by the statute from taking cognizance . Different tests have been laid down in decided cases to ascertain 9 the scope and meaning of the relevant words occurring in Section 197: "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." The offence alleged to have been committed must have something to do, or must be related in some manner with the discharge of official duty. No question of sanction can arise under Section 197, unless the act complained of is an offence ; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code , the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties , and the official status furnishes only the occasion or opportunity for the acts , then no sanction would be required . If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped.
It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance : may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what 10 he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful , can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."
In State of Himachal Pradesh -vs - M. P.Gupta (Supra) , the Hon'ble Supreme Court has held :
" The said 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 ac t and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked , it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor it is 11 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."
In Sankaran Moitra -vs- Sadhna Das and another (supra) , the Hon'ble Supreme Court ( view of Y.K. Sabharwal,C.J., and P.K. Balasubramanyan, J.) held that " Coming to the facts of this case , the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly , that the appellant was in uniform; that the appellant travelled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot , may not by themselves attract Section 197 (1) of the Code. But, as can be seen from the facts disclosed in the counter-affidavit filed on behalf of the State based on the entries in he general diary of Phoolbagan police station, it emerges that on the election day information was received in the police station at 1400 hours of some disturbance at a polling booth , that it took a violent turn and clashes between the supporters of two political parties were imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the officer-in-charge who was stationed at the spot and thereafter a lathi charge 12 took place or there was an attack on the husband of the complainant and he met with his death. Obviously it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for ill-treatment and he was beaten up by a police constable at the instance of the appellant and the officer in charge of Phoolbagan police station and at their behest . If that complaint were true it will certainly make the action , an offence , leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the general diary remain to be proved . But still, it would be an offence committed during the course of the performance of his duty by the appellant and it would attract Section 197 of the Code."
In Raghunath Anant Govilkar -vs- State of Maharashtra and others (2009) 1 SCC (Cri) 130, the Hon'ble Supreme Court has held :
" The protection given under Section 197 is to protect responsible public servants against the institution of possible 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 it chooses to exercise it, complete control of the prosecution. The protection has certain limits and is available 13 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."
The case which is in our hand speaks about the process of giving appointment to six candidates which was the subject matter of enquiry by Vigilance Commissioner . On enquiry it revealed that there was evidence of manipulation , lack of transparency and gross irregularities in the selection process. On scrutiny of the marked answer scripts a good number of anomalies was detected . Example of manipulation in the answer script is noticed. Reduction of marks awarded initially to some of the candidates was there. Even marks which was awarded in one paper was reduced to zero. There appears to have a deliberate attempt on the part of the examiner to slash down marks obtained by some of the candidates . It is alleged that the petitioner being the Block Development Officer, and others have played very vital role in getting candidates of their choice selected for the post in lieu of huge money.
The alleged act of the petitioner is not an act which may be termed as inseparable from his official act. It has a distinct character. The nature of the act itself cannot be decorated even in the disguise of official duty and integrally connected with the duty of the petitioner. There was no necessary connection between the act complained of and the performance of duty, the official status furnishing only the occasion or opportunity for the act does not demands sanction. The act does not fall either within the scope of the official duty or in excess of it where the protection is claimable. There was no situation demanding requirement to perform the act in excess of the needs 14 The factual scenario from which the case in hand cropped up even by no stretch of imagination warrant sanction from the competent authority to proceed against the petitioner. Mere taking sanction from the District Magistrate , Murshidabad , though he is not a competent authority to give such sanction by the investigating agency/prosecution is in no way spread light so that the petitioner may not be proceeded with without sanction.
Therefore, from a conspectus of the aforesaid decisions it is clear that for claiming protection under Section 197 of the Code the petitioner is to show that there was reasonable connection between act complained of and the discharge of his official duty. But there appears to be a glaring example of manipulation of records and the same has no connection to the act which the petitioner discharges in course of his official duty holding the post of Block Development Officer, Sagardighi, Murshidabad. This proceeding does not require sanction in the light of the observation made in the various decisions noted hereinabove. There is no illegality in the order passed by learned Judge, Special Court, Murshidabad in Special Case No. 2 of 2008 on 8.12.2008 The revisional application sans merit.
It is dismissed.
Urgent hotostat certified copies of this order, if applied for, by the parties be given to the parties as expeditiously as possible.
( Asim Kumar Ray, J. )