Orissa High Court
Saswat Mishra And Another vs Dayanidhi Sharma And Another on 28 March, 2018
HIGH COURT OF ORISSA, CUTTACK
CRLMC NO.2151 OF 2005
In the matter of an application under Section 482 of the
Criminal Procedure Code.
-----------------
Saswat Mishra & another ......... Petitioners
-Versus-
Dayanidhi Sharma & another .......... Opposite Parties For petitioners - M/s. D. Nayak, M. Mohanty, R.K. Pradhan, S.K. Das & U.R. Jena For Opposite Parties - M/s. Chinmaya Mohanty, S. Rath & B.R. Mohanty (For Opposite Party No.1) Mr. B.K. Senapati, Additional Government Advocate (For Opposite Party No.2)
------------------
P R E S E N T:
THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
----------------------------------------------------------------------- Date of Argument-29.01.2018: Date of Judgment-28.03.2018
-----------------------------------------------------------------------
DR. D.P. CHOUDHURY, J. Challenge has been made to the order of taking cognizance dated 27.6.2005 for the commission of offence under Section 7 of the Lotteries (Regulation) Act 1998 and Sections 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 and issuance of process against 2 the petitioners by the learned Sub-Divisional Judicial Magistrate, Bhawanipatna in I.C.C. Case No.8 of 2005.
2. Mr. D. Nayak, learned Senior Advocate for the petitioners submitted that in the year 1994, the Commissioner- cum-Secretary to Government, Sports, Culture & Youth Services Department vide D.O. No.8742/SC dated 1.9.1994 requested all the Collectors of different districts including the then Collector, Kalahandi district to form District Council of Culture, in the district and register its Society under the Societies Registration Act, 1860 for promotion of culture and providing for a coordinating agency at the District level. It is also directed in that letter that the District Council of Culture would function under the leadership of the Collector of the respective districts under sub-rule (2) of Rule 7 of the District Council of Culture Rules, 1994.
3. Mr. Nayak, learned counsel for the petitioners submitted that in accordance with the said direction of the State Government since 1997 Kalahandi Ustav was being celebrated in the month of January of every year. The petitioner No.1 being the Collector, Kalahandi in the year 2002 and petitioner No.2 being the Culture Officer, in the district of Kalahandi, in pursuance of the aforesaid letter of the Government and as per 3 bye-law of the District Council of Culture took decision to observe Kalahandi Ustav for the year 2002. In order to celebrate Kalahandi Ustav in the month of November 2002, a lottery Uthan Ustav was observed as per decision taken in the District Cultural Council Committee. Since it is a part of the Kalahandi Ustav, the entire account was audited by the Government Auditor and found no irregularity. Due to effort of the petitioners the balance was increased to Rs.5,22,339/- but opposite party No.1 made allegation falsely against the petitioners stating that such activities of petitioners were offensive and he made complaint to Lokpal, Chief Secretary and other authorities. At the same time he also filed complaint before the learned Sub- Divisional Judicial Magistrate, Bhawanipatna on 21.3.2005.
4. Mr. Nayak, learned Senior Advocate for the petitioners further submitted that the learned S.D.J.M. without complying the statutory provisions under Section 197 of the Cr.P.C. and without appreciating the initial statement of the complainant and complaint petition took cognizance of the offence mechanically under Section 7 of the Lotteries (Regulation) Act 1998 (hereinafter called "the Act 1998") and Sections 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 (hereinafter called "the Act, 4 1978"). He further submitted that the learned S.D.J.M. without application of judicial mind has taken cognizance of such offence and issued process to the petitioners.
5. Mr. Nayak, learned counsel for the petitioners contended that the entire act as alleged in this case is connected with the discharge of duties duly performed by the petitioners who are the Collector and Cultural Officer of the district at that time. Since the act complained of has got nexus with the due discharge of duties, they are protected under Section 197 of Cr.P.C. He relied on the decisions reported in (2012) 53 OCR (SC) 924; Om Prakash & Ors. v. State of Jharkhand Through the Secretary, Department of Home, Ranchi-1 & Anr., AIR 2000 SC 3187;Abdul Wahab Ansari v. State of Bihar and Another and AIR 2004 SC 2179; State of Orissa and others v. Ganesh Chandra Jew.
6. Mr. Nayak, learned counsel for the petitioners further submitted that while passing the impugned order, the learned Magistrate was quite aware that sanction under Section 197 Cr.P.C. is necessary but observed in the order that it can be heard at the later stage. But Section 197 of Cr.P.C. is clear to show that no cognizance of offence can be taken without sanction being obtained from the State Government or Central 5 Government as the case may be if the Act alleged is committed during due discharge of duty of a public servant and they are removable by the sanction of the Central Government or the State Government as the case may be. Moreover, the impugned order suffers from infirmity as in the instant case no enquiry under Section 202 of Cr.P.C. was held as the Court did not feel it necessary to do so. Whenever there is an allegation against a public servant, propriety demands that enquiry under Section 202 of Cr.P.C. should be held to find out the truth about the allegation made in the complaint. On several counts he submitted that the entire order of taking cognizance and issuance of process is per se illegal and improper for which the same are liable to be quashed.
7. Mr. Rath, learned counsel for the opposite party No.1 submitted that in spite of the objection by the complainant and other respectable persons, the petitioners' organization circulated the Lottery Scheme violating the provisions of the Regulation 1998. Also introduction of entry tickets during the Ustav violates the provisions of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978. According to him, when the petitioners did not restrain them from such illegal activities, the complainant made complaint before the learned 6 Lokpal, Orissa who after conducting preliminary investigation submitted a report under Section 10(4)(c) of the Act to the Governor for kind information. There the learned Lokpal has observed that since organizing lotteries being violative of the provisions of the Lottery (Regulation) Act is an offence, complainant can file a complaint in a competent Criminal Court which is the proper remedy. So, the complainant has filed the complaint against the petitioners and after examining the complainant and the complaint, the learned Magistrate applied his judicial mind after scrutinizing the facts he appropriately took cognizance of the offence and issued process to the petitioners. There is no illegality committed by the court below.
8. Mr. B.K. Senapati, learned Additional Government Advocate submitted that the act complained of against the petitioners is undoubtedly during discharge of their duties. When there is any excess as alleged by the complainant, the sanction under Section 197 of Cr.P.C. is mandatory as the act complained of has nexus with the discharge of duty. So, this Court may pass any order as appropriate in this case.
9. DISCUSSIONS Section 197 Cr.P.C. states as follows:
"197. Prosecution of Judges and public servants - (1) When any person who is or 7 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:
[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression"
State Government" occurring therein, the expression "Central Government" were substituted.] [Explanation. - For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under Section 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376C, Section 376D or Section 509 of the Indian Penal Code (45 of 1860).] (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union 8 while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-
section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government"
were substituted.
[(3-A) 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.
(3-B) 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 9 Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
10. The aforesaid provision is clear to show that no cognizance can be taken against a public servant if the act complained of is performed during discharge of duty and he or she is removable from service by the sanction of the Government. On the other hand, previous sanction under Section 197 of Cr.P.C. is the pre-condition for taking cognizance of offence against a public servant if the offence purportedly to have been committed in due performance of official duty.
11. It is reported in the case of State of Orissa and others -V- Ganesh Chandra Jew; AIR 2004 SC 2179 where Their Lordships at paragraph-11 have observed in the following manner:
"........... Use of the expression, 'official duty' implies that the act or omission must have been done by the public 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 10 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. In Om Prakash and others v. State of Jharkhand Through The Secretary, Department of Home, Ranchi 1 and another, (2012) 53 OCR (SC) - 924, the Hon'ble Apex Court at paragraph 29 has held as follows:
"29. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code 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 (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood."11
13. In Sankaran Moitra v. Sadhna Das and another, (2006) 4 SCC 584, the Hon'ble Supreme Court in paragraphs 22 and 23 has observed as follows:
"22. Learned counsel for the complainant argued that want of sanction under Section 197(1) of the Code did not affect the jurisdiction of the Court to proceed, but it was only one of the defences available to the accused and the accused can raise the defence at the appropriate time. We are not in a position to accept this submission. Section 197(1), its opening words and the object sought to be achieved by it, and the decisions of this Court earlier cited, clearly indicate that a prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when the provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. We cannot therefore accede to the request to postpone a decision on this question.
23. xxxx 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. Going by the principle, stated by the Constitution Bench in Matajog Dobey v. H.C.Bhari (1955) 2 SCR 925, it has to be held that a sanction under Section 197(1) of the Code of Criminal Procedure is necessary in this case."
14. In the decision reported in Rakesh Kumar Mishra v. State of Bihar and others, (2006) 1 SCC 557, the Hon'ble Apex Court in paragraph 18 has observed as follows: 12
"18. Section 197(I) provides that when any person who is or was 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, and (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, or the State Government."
15. With due regard to the aforesaid decision, it appears that no Court can take cognizance of any offence issuing process to the public servant without sanction of the State Government or the Central Government, as the case may be, if the act complained of has got nexus with the discharge of public duty. Even if it is excess of any public servant while discharging public duty, Section 197, Cr.P.C. will protect him. Not only the act complained of has got nature of duty discharged but also such public servant is only removable from office save by or with the sanction of the State Government or Central Government as the case may be.
16. Now adverting to the facts of this case, it appears 13 that the learned Magistrate on 27.6.2005 has passed order of taking cognizance and relevant portion of the same is placed below in the following manner:
"27.6.2005 The complainant is present. Perused the complaint petition, statement of the complainant recorded u/s.200 Cr.P.C., Xerox copies of the orders passed by Hon'ble Lokpal, Orissa in case No.IIIA of 2004 and other connecting documents including Xerox-copies of the Judgment of Hon'ble Apex Court reported in A.I.R. 1983 S.C. 64 in B.S. Sambhu-Versus-T.S. Krishna Swamy, A.I.R. 1983 S.C. 610 in Manohar Nath Kaul-Versus- State, (2002) 6 S.C.C. 543 in Rajkishor Roy- Versus-Kamleswar Pandey and another and other connecting documents. Heard on the points of sanction as required U/s.197 Cr.P.C. at length. It is stated that in view of the observation of Hon'ble Apex Court in the aforesaid cases and the nature of allegation in question of sanction can be decided at a later stage. Therefore, there is no huddle on issuing process against the accused persons named in the complaint. Further this Court should not insist for inquiry U/s.202 Cr.P.C. as prima facie case against the accused persons is made out.
I have carefully gone through the entire material on record. I find sufficient grounds for proceeding against accused Saswat Kumar Mishra and Sukru Swain for commission offences U/s.7 of Lotteries (Regulation) Act, 1998 and Section 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978. Issue summons to the above accused persons fixing 21.9.05 for appearance. I find insufficient material to proceed against Fakirmohan Pradhan. Hence, the complaint in respect of him is dismissed. Put up on the 14 date fixed the complainant to take steps forthwith."
Sd/-R.K. Tosh, S.D.J.M., Bhawanipatna"
17. Moreover, the complaint and initial statement of the complainant clearly show that the present petitioners have organized the lottery after obtaining necessary permission of the State Government to promote the welfare scheme of the local people. The act complained of has got thus close nexus with the discharge of duty. Moreover, they are removable by the order of the sanction of the State Government. So, the ingredients of Section 197 Cr.P.C. are well fulfilled to protect the petitioners who are public servant. Now applying the aforesaid decisions of the Hon'ble Supreme Court in State of Orissa and others -V- Ganesh Chandra Jew (supra); Om Prakash and others v. State of Jharkhand (supra); Sankaran Moitra v. Sadhna Das and another (supra); and Rakesh Kumar Mishra v. State of Bihar and others (supra), prior sanction of the State Government is necessary to proceed with the offences. This fact is also well observed in the impugned order. When the statute is clear to show that obtaining of sanction of the State Government is a pre-condition to take cognizance of the offence, 15 any observation that the question of sanction can be considered after taking cognizance of the offence is absolutely beyond the purview of the jurisdiction of the Magistrate. However, the learned Magistrate has relied on the decision reported in AIR 1983 SC 64; B.S. Sambhu V. T.S. Krishnaswamy and AIR 1983 SC 610; Manohar Nath Kaul V. State of Jammu and Kashmir to support his finding. On perusal of the decision in B.S. Sambhu (supra) and Manohar Nath Kaul (supra), it appears the sanction under Section 197 Cr.P.C. is not necessary where the act complained of has no nexus with the discharge of duty. Similarly in Raj Kishor Roy v. Kamleshwar Pandey and another, reported in (2002) 6 SCC 543, Their Lordships have approved the proposition that Section 197 Cr.P.C. is mandatory where the act has been done by the public servant in the course of his service or in the discharge of his duty. But due to peculiar facts and circumstances of the case, Their Lordships left the question of sanction open to be decided during trial. However, it is clear from the decision that if the act complained of has nexus with the discharge of duty or performance of public duty, the protection under Section 197 Cr.P.C. is available to the public servant. The learned Magistrate has failed to understand the import of the case laws cited by him.
16
18. From the aforesaid order, it appears that basing upon the statement of the complainant and initial statement along with other material, the learned Magistrate took cognizance of the offence. It appears from the complaint and initial statement of the complainant that he has filed the complaint basing on the observation of the learned Lokpal where the complainant has made similar allegations. Basing upon the observation of the learned Lokpal, he appears to have filed the present complaint.
19. It is revealed from the observation of the learned Lokpal that the present petitioners had requested the learned Lokpal to investigate the matter under Section 8 of the Odisha Lokpal and Lokayuktas Act but same request was turned down by the learned Lokpal. It is further available from his observation that the acts of the present petitioners were absolutely performance of duty as per order of the State Government and in that the learned Lokpal has not cast any aspersion against the present petitioners. Rather, it is observed that there is no criminal intention behind the same. Lastly it is observed at para-14 of the order of the learned Lokpal in the following manner:
"14. In case organizing lottery violates the 17 provisions of the Lottery (Regulation) Act and is an offence, complainant can file a complaint in a competent Criminal Court which is the proper remedy. Therefore, I refuse to investigate U/s 10 (4) (c) of the Act to make any recommendation under section 12 (3) of the Act".
The aforesaid observation of the learned Lokpal clearly shows that if the act of organizing lottery violates the necessary provisions of the Lottery (Regulation) Act then only the complainant has remedy in filing a complaint in a competent Criminal Court but that does not mean the learned Lokpal has directed the complainant to file complaint against the petitioners.
20. Bereft of the above observation, it is well settled in law that the learned Lokpal is the recommending authority and any observation of the Lokpal can be only laid before the Assembly for necessary action by the State Government. In the instant case the learned Lokpal has not recommended to the State Government for which the contention of the learned counsel for opposite party No.2 falls flat. Moreover, the observation of the learned Lokpal in normal situation does not direct the Criminal Court under the Odisha Lokpal and Lokayuktas Act to take cognizance of the offence. So, the question of binding of the observation of the learned Lokpal 18 upon a criminal court is beyond the purview of principle of law.
21. Once the complaint is filed under Section 200 Cr.P.C., that will be followed by recording of the initial statement of the complainant and the learned Magistrate is at liberty to make enquiry under Section 202, Cr.P.C. to find out whether the process can be issued. So, it is the wisdom of the learned Magistrate to take cognizance of the offence basing on the materials placed before him. On the other hand, the Magistrate has got independent discretion to take cognizance of the offence and issuance of process. Learned Magistrate should be unfazed with any observation of any authority except under Cr.P.C. as long as it is not exhibited as piece of evidence. The 'evidence' means the oral testimony or with the documentary evidence admitted into evidence.
22. Now adverting to the present case, except the statement of the complainant in the complaint, no witnesses were examined by the complainant to corroborate him. No document has also exhibited by the complainant in his initial statement to lend support to his testimony. Unless the certified copy of the order of the learned Lokpal is made exhibited, the Court cannot take cognizance of the said document. Therefore, 19 there is no material before the learned Magistrate to find out a prima facie case to make out an offence under Section 7 of the Lotteries (Regulation) Act 1998 and Sections 4 and 5 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978.
23. Moreover, since the allegation has been made against a responsible Government servant who is none other than the Collector of the district and the other responsible public servants, the learned Magistrate should hold the enquiry under Section 202, Cr.P.C. if at all he decided to go with the procedure as enshrined in Chapter-XV of the Cr.P.C. At the same time, he has got option to send the complaint to the Police Station under Section 156(3), Cr.P.C. to register same and conduct investigation. In absence of holding enquiry under Section 202, Cr.P.C., the order of taking cognizance and issuance of process basing on the statement of the complainant and complaint is defective one.
24. In terms of the above discussion, the Court is of the view that the learned Magistrate without application of judicial mind has taken cognizance of the offence and as such taking of cognizance of offence and issuance of process being abuse of process of the Court, they are quashed under Section 482, Cr.P.C.
20
The CRLMC is disposed of accordingly.
The LCR received be sent back immediately.
..................................
Dr. D.P. Choudhury, J.
Orissa High Court, Cuttack The 28th March, 2018/Kar 21