Jharkhand High Court
Sweta Kumari Gupta @ Sweta Gupta vs State Of Jharkhand on 27 June, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Cr.M.P. No. 745 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 745 of 2020
Sweta Kumari Gupta @ Sweta Gupta, wife of Vikram Meghwal, aged
about 43 years, resident of Flat No.402, Green Palace Apartment,
Morhabadi, P.O. Ranchi University, P.S. Bariatu, District- Ranchi
... Petitioner
-Versus-
1. State of Jharkhand
2. Pratik Kumar, son of late R.K. Singh, resident of Burdwan Compound,
J.C. Road, Lalpur, P.O. G.P.O., P.S. Lalpur, District- Ranchi, Jharkhand
... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Ajay Kumar Sah, Advocate For the Opposite Party-State : Mr. Jitendra Pandey, A.P.P. For Opposite Party No.2 : Mr. Robin Kumar, Advocate
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06/27.06.2022. Heard Mr. Ajay Kumar Sah, learned counsel for the petitioner, Mr. Jitendra Pandey, learned counsel for the State and Mr. Robin Kumar, learned counsel for opposite party no.2.
2. This petition has been filed for quashing the entire criminal proceedings in connection with Complaint Case No.1738 of 2016 including the order dated 18.02.2019 passed by the learned Chief Judicial Magistrate, Ranchi whereby cognizance has been taken under Section 504 of the Indian Penal Code against the petitioner, which is pending in the court of the learned Chief Judicial Magistrate, Ranchi.
3. The complainant filed the complaint alleging therein that on 06.06.2015, meeting of Establishment Committee of Deputy Commissioner was held wherein the complainant who was posted at Namkum block was transferred to Jan Shikayat Koshang as Clerk in the office of the Deputy Commissioner, Ranchi. On 22.07.2015, the complainant intimated the Deputy Commissioner vide letter dated 22.07.2015 about the difficulty in handling two offices simultaneously as the complainant was posted at G/12 2 Cr.M.P. No. 745 of 2020 and also Room no.212 on Collectorate building, bu the Deputy Commissioner did not take any action. Vide letter dated 25.07.2015, Sweta Gupta requested the Deputy Commissioner to transfer the complainant to outskirt as the complainant is habitual absentee from office. The Deputy Commissioner vide letter dated 03.08.2015 suspended the complainant and posted him at Headquarter Lapung Anchal without issuing any show cause notice. It was further stated that although Sweta Gupta alleged the complainant to be habitual absentee from work, but the biometric system of attendance reflect that the complainant was regular employee. Vide letter dated 01.09.2015, the complainant was released from suspension and was posted at Bundu Block office. The complainant filed show cause reply to the Additional Collector. It was also alleged that when the conducting officer demanded evidence against the complainant, Sweta Gupta did not give reply and till date no evidence has been produced. It was further alleged that the complainant has been harassed and tortured by the accused person which has resulted in mental agony and tension.
4. Mr. Ajay Kumar Sah, learned counsel for the petitioner at the outset submits that Criminal Revision No.495 of 2019 was filed by the petitioner before the Judicial Commissioner, Ranchi against the order dated 18.02.2019 which stood dismissed vide order dated 20.12.2019 as no one appeared on behalf of the petitioner. He further submits that entire allegation against the petitioner is false. He also submits that the petitioner, who happened to be a Government official, has intimated the higher official about regular absenteeism from office by opposite party no.2 and pursuant to that he has been transferred and for transfer, this case has been lodged against the petitioner, who happened to be Deputy Collector at that time.
3 Cr.M.P. No. 745 of 2020He further submits that in the official capacity, the petitioner has informed the Deputy Commissioner about the conduct of the opposite party no.2. He also submits no case under Section 504 of the Indian Penal Code is made out against the petitioner. He relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Vikram Johar v. State of Uttar Pradesh & another, reported in (2019) 14 SCC 207.
5. Paragraphs 21, 22 and 23 of the said judgment are quoted herein below:
"21. Section 504 IPC came up for consideration before this Court in Fiona Shrikhande v. State of Maharashtra6. In the said case, this Court had the occasion to examine ingredients of Section 504 IPC, which need to be present before proceeding to try a case. The Court held that in the said case, the order issuing process was challenged by filing a criminal revision. This Court held that at the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused. In para 11, following principles have been laid down:
"11. We are, in this case, concerned only with the question as to whether, on a reading of the complaint, a prima facie case has been made out or not to issue process by the Magistrate. The law as regards issuance of process in criminal cases is well settled. At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to prima facie satisfy whether there are sufficient grounds to proceed against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 is extremely limited in the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehood of the allegations made in the complaint. The Magistrate is not expected to embark upon a detailed discussion of the merits or demerits of the case, but only consider the inherent probabilities apparent on the statement made in the complaint. In Nagawwa v. Veeranna Shivalingappa Konjalgi, this Court held that once the Magistrate has exercised his discretion in forming an opinion that there is ground for proceeding, it is not for the Higher Courts to substitute its own discretion for that of the Magistrate. The Magistrate has to decide the question purely from the point of view of the complaint, without at all adverting to any defence that the accused may have."4 Cr.M.P. No. 745 of 2020
22. In para 13 of the judgment, this Court has noticed the ingredients of Section 504 IPC, which are to the following effect:
"13. Section 504 IPC comprises of the following ingredients viz. (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC."
23. In another judgment i.e. Manik Taneja v. State of Karnataka, this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 IPC. After noticing Section 503, which defines criminal intimidation, this Court laid down the following in paras 11 and 12:
"11. * * * A reading of the definition of "criminal intimidation"
would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do.
12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of "criminal intimidation". The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the 5 Cr.M.P. No. 745 of 2020 appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC."
In the above case, allegation was that the appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506 IPC."
6. Learned counsel for the petitioner further submits that the petitioner is protected under Section 197 Cr.P.C. To buttress this argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Amal Kumar Jha v. State of Chhattisgarh & another , reported in (2016) 6 SCC 734.
7. Paragraphs 13 and 14 of the said judgment are quoted herein below:
"13. In State of M.P. v. Sheetla Sahai, this Court has laid down thus: (SCC pp. 642-44, paras 59-60) "59. For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where public servants purport to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das18. The question came up for consideration before this Court in Matajog Dobey v. H.C. Bhari wherein it was held: (AIR pp. 48-49, para 17) '17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance.
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 to determine 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 6 Cr.M.P. No. 745 of 2020 for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must 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 the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Ram Singh v. Crown, Sulaiman, J. observes:
(SCC OnLine FC) "... The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction."
The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at FCR pp. 187- 88: (SCC OnLine FC) "... there must be something in the nature of the act complained of that attaches it to the official character of the person doing it...."
In affirming this view, the Judicial Committee of the Privy Council observed in Gill case: (SCC OnLine PC : IA pp. 59-60) "... 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. ... 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."
Hori Ram case is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. King Emperor but the test laid down that it must be established that the act complained of was an "official" act appears to us unduly to narrow down the scope of the protection afforded by Section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Albert West Meads v. R. does not carry us any further; it adopts the reasoning in Gill case.'
60. The said principle has been reiterated by this Court in B. Saha v. M.S. Kochar in the following terms: (SCC pp. 184-85, paras 17-18) '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 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 7 Cr.M.P. No. 745 of 2020 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. As pointed out by Ramaswami, J. in Baijnath v. State of M.P.20: (AIR p. 227, para 16) '16. ... 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.'
18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.'"
14. In view of the aforesaid discussion, it is clear that the omission complained of, due to which offence is stated to have been committed, was intrinsically connected with discharge of official duty of the appellant, as such the protection under Section 197 CrPC from prosecution without sanction of the competent authority, is available to the appellant. Thus, he could not have been prosecuted without sanction. It would be for the competent authority to consider the question of grant of sanction in accordance with law. In case sanction is granted only then the appellant can be prosecuted and not otherwise. Resultantly, the impugned orders are set aside, the appeal is allowed."
8. Mr. Robin Kumar, learned counsel appearing for opposite party no.2 by way of referring counter affidavit filed on behalf of opposite party no.2 submits that the petitioner has recommended to the Deputy Commissioner for transfer and pursuant to that the Deputy Commissioner has transferred opposite party no.2 and that is why he has been harmed.
9. Mr. Jitendra Pandey, learned counsel for the State submits that there is no illegality in the cognizance order.
10. In view of the above facts and considering the submissions of the learned counsel for the parties, this Court has gone through the materials on the record. Looking to the complaint petition, it transpires that the 8 Cr.M.P. No. 745 of 2020 petitioner, who happened to be the Deputy Collector at Ranchi at that time, has informed the Deputy Commissioner about remaining absent from his duty by opposite party no.2 and pursuant to that the Deputy Commissioner has transferred the opposite party no.2 to outskirt of Ranchi. It has been alleged in the complaint that the Deputy Collector do not follow the rule or law of public servant and how can the Deputy Commissioner can suspend any Karamchari, under him or her. Thus, it is apparent that in view of the transfer made by the Deputy Commissioner, the complaint has been filed. The petitioner has only informed the Deputy Commissioner about the work not being done properly by the opposite party no.2. Moreover, any wrong thing happened with regard to discharge in official capacity and if the opposite party no.2 is aggrieved, remedy is not to file the complaint or criminal case against the authority. There are other remedies of that action. Even the argument of the learned counsel for opposite party no.2 is accepted, no ingredient of Section 504 of the Indian Penal Code is made out against the petitioner. To attract Section 504 of the Indian Penal Code, the threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section, as has been held by the Hon'ble Supreme Court in the case of Vikram Johar (supra). Moreover, the petitioner was discharging official duty and she is protected under Section 197 Cr.P.C. The sanction has also not been taken. Thus, the entire criminal proceeding is malicious in nature and to allow the entire criminal proceeding to continue, will amount to abuse of process of law.
9 Cr.M.P. No. 745 of 202011. As a cumulative effect of the above facts, entire criminal proceedings in connection with Complaint Case No.1738 of 2016 including the order dated 18.02.2019 passed by the learned Chief Judicial Magistrate, Ranchi, which is pending before that court is, hereby, quashed.
12. Accordingly, this petition stands allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Ajay/