Madhya Pradesh High Court
Smt. Shakuntala Verma vs The State Of Madhya Pradesh on 23 February, 2018
THE HIGH COURT OF MADHYA PRADESH
MCRC-26358-2017
(SMT. SHAKUNTALA VERMA Vs THE STATE OF MADHYA PRADESH)
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Jabalpur, Dated : 23-02-2018
Smt.Shakuntala Verma............................... Petitioner
Versus
State of Madhya Pradesh and another...... Respondents
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For the petitioner : Ms.C.V.Rao, Advocate
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For the respondent: Mr.C.K.Mishra, Government Advocate
No.1
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Present: Hon'ble Mr.Justice Sushil Kumar Palo
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ORDER
M [23/02/2018] of This petition under section 482 of the Code of Criminal Procedure rt has been filed to invoke the extraordinary jurisdiction of this Court, ou and to quash the charge-sheet which resulted in Criminal Case No.703/2012, pending before the Judicial Magistrate First Class, C Patan, Jabalpur, against the petitioner for offence under section 4 read h with section 3-D(2)/4 of Madhya Pradesh Recognized Examination ig Act, 1937 and section 119 of Indian Penal Code, and in the alternative, H section 119 read with section 120-B of I.P.C.
2. Bereft of the unnecessary details, facts requisite for disposal of this petition are that, the petitioner-Smt.Shakuntala Verma was the incharge of the examination centre, namely, Government Boys Higher Secondary School, Katangi at the relevant time and having Centre No.711027, wherein the Higher Secondary and High School examinations were being conducted. On 05.3.2012, a surprise inspection was conducted by the Divisional Officer of the Board of Secondary Examination, Jabalpur. In the class rooms the examination was being conducted, where 752 Higher Secondary students and 159 High School students were participating. During the surprise check the students were found engaged in "mass-copying" in presence of the invigilators. The students were found using slips, guides, books and other unfair means etc. in the examination. The Incharge of the Centre had no control over the Invigilators, neither she was inspecting whether the invigilatiors are doing their duties in the class rooms or not. The unfair means, such as articles, books, etc. were being used as outsiders were throwing the same to the examination rooms. The sh Invigilators in the surprise check gathered slips, articles and unfair e means and tried to burn them outside the class room. Immediately the ad Divisional Officer informed the Board of Secondary Education, Pr Bhopal and he was directed to lodge First Information Report against the Incharge of the Examination Centre and then informed to the a Board at Bhopal. Therefore, he covered the incident by a handicam hy and also prepared a C.D. and lodged the FIR and informed the Board ad about lodging of the FIR.
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3. Police Station, Katangi vide Crime No.52/2012 lodged FIR of against the petitioner-Smt.Shakuntala Verma, Incharge of the examination centre of Government Boys Higher Secondary School, rt Katangi for offences under section 3-D(2) of Madhya Pradesh ou Recognized Examination Act, 1937. Subsequently, charge-sheet has C been filed and charges have been framed by the Judicial Magistrate h First Class, Patan, Jabalpur on 22.7.2014. ig H
4. On behalf of the petitioner it is vehemenly contended that the petitioner was discharing the her duty at the relevant time. No sanction under section 197 of the Code of Criminal has been obtained. There was no "mass-copying" as defined in Madhyamik Shiksha Mandal, Madhya Pradesh, Bhopal Kendra Nirikshankartaon Avam Udandaston Ke Liye Nirdesh Pariksha Varsh, 2014 [for short "Instructions of 2014"], in which, directions have been isused what is "mass-copying"
and how to handle the situation. It is also contended that primarily no names of the invigilators or the students who were allegedly involved in committing copying has been mentioned in the written complaint dated 05.3.2012. Nor the same is reflected in the F.I.R. It is also vehemently argued that the charges have been framed against the petitioners. Not having any evidence of "mass-copying" and no information was sent as per Form-II prescribed under Instructions of 2014. The complainant-A.K.Kaithwas, Divisional Officer of M.P. Higher Secondary Board, Jabalpur has not obtained any persmisison from the Competent Officer before lodging the First Information Report, though the Divisional Officer has mentioned in the complaint that he was directed by the Board to lodge the FIR, against the sh Incharge of the Examination Centre. This oral permission/sanction is e not sufficient for prosecution of the case against the petitioner.
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5. On behalf of the respondent/State contentions are vehemently opposed and it is contended that "mass-copying" was being done at the a time of surprise inspection. Therefore, the Divisional Officer has hy recorded the incident and has also intimated to the M.P. Higher ad Secondary Board and on the instructions of the Board of Secondary M Education lodged the FIR. The petitioner being the Incharge was not performing her duties properly in conducting the examination. Which of is clear vioation of provisions of M.P. Recognized Examination Act, 1937. Hence, the petitioner is not entitled for protection under section rt 197 of the Code of Criminal Procedure. It is also argued that the ou persons who are indulged in criminal activities are not named, or not C and how they were involved is a matter of evidence. The names of the h Invigilators were provided to the Police as well as Board of Secondary ig Education. The materials seized, including the slips, guides, books and H other unfair means. Therefore, it would not be appropriate to discuss the evidence at this stage. He, therefore, contended that the trial is in progress and the important witneses have been examined and it would not be appropriate to embark upon an enquiry of this Court.
6. Second part of the argument advanced by learned counsel for the petitioner is concerned, there is no evidence with regard to "mass- copying" and the involvement of the petitioner in the crime. Not naming the Invigilator and the students indulged in the commission of offence in the FIR is a matter of evidence. Recording by handicam also gives detail evidence of the subject matter which can be analyzed or examined by the Court concerned. Therefore, this Court would not embark upon an enquiry to come to the conclusion whether such allegation is true or not. It is the concerning Court which can examine after the entire material is produced before it and evidence is led. Therefore, it would not be proper to give a finding that the FIR and the charge-sheet are reliable or not.
7. So far as the first point raised by the learned counsel for the sh petitioner that the prosecution has not obtained any sanction for e prosecuting the petitioner is concerned, it would be appropriate to ad mention that the petitioner was the incharge of the Examination Centre Pr to conduct the examination fairly and observe the directions issued by the Board in the year 2014 which should be in consonance with the a M.P. Recognized Examination Act, 1937.
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8. On behalf of the petitioner reliance has been placed on the ad decision in the case of Gauri Shankar Prasad vs. State of Bihar and M another, 2000 AIR SCW 3135 wherein the Apex Court while dealing with section 197 of Cr.P.C. relating to sanction for prosecution of of public servant held that the accused-Sub Divisional Officer in the Public Works Department while carrying out operations of removal of rt public encroachment alleged to have entered chamber of complainant, ou abused him and took him and his wife to the police station, the acts C complained of have reasonable nexus with the official duty of and, h therefore, sanction for the prosecution is necessary. ig H
9. The Court observed that it is legislative mandate engrafted under sub-section (1) of Section 197 of the Code of Criminal Procedure 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. It is also to be seen that section 197 of Cr.P.C. unmistakably shows that the bar on exercise of powers by the Court to take cognizance as mandatory and the previous sanction from the competent authority for prosecution of the public servant, who is accused of having committed an offence either in the execution of his duties or in the purported execution of his duties is essential to take cognizance.
10. In the case of Choudhury Praveen Sultana vs. State of West Bengal and another [Criminal Appeal No.8 of 2009 decided on 07.1.2009] wherein the Supreme Court has held that offence complained of cannot be said to be a part of his duty of the Investigating Officer, while investigating an offence alleged to have sh been committed. It was not part of his duties to threaten the e complainant or her husband to withdraw the complaint. In order to ad apply the bar of Section 197 Cr.P.C. Each case has to be considered in Pr its own fact situation in order to arrive at a finding as to whether the protection of Section 197 Cr.P.C. could be given to the public servant.
a The facts situation in the complaint in this case is such that it does not hy bring the case within the ambit of section 197 of Cr.P.C. and the High ad Court erred in quashing the same as far as the respondent No.2 is M concerned. The complaint prima facie makes out offences alleged to have been committed by the respondent No.2 which were not part of of his official duties. Therefore, the appeal was allowed and the trial Court was directed to proceed against the accused persons including rt the respondent No.2.
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11. On behalf of the petitioner reliance has also been placed on the h case of D.T.Virupakshappa vs. C.Subhash, AIR 2015 SC 2022, in ig which, the complainant was assaulted when detained in the Police H custody. Allegedly, the offence committed was reasonably connected with the performance of the official duty of the appellant. Therefore, previous sanction for prosecution was held necessary.
12. Learned counsel has also placed reliance on the decision in the case of Amal Kumar Jha vs. State of Chhattisgarh and another, AIR 2016 SC 2082, in which, the Incharge of the Primary Health Centre did not provide ambulance for shifting the patient from the District Hospital, whereas he himself travelled in Government Jeep to District Headquarter to attend a meeting. It was an act or omission in discharge of official duty, therefore, the sanction to prosecute him under section 304-A of the Indian Penal Code is necessary. No previous sanction was obtained. Hence, the discharge of the appellant cannot be disturbed.
13. In this connection, learned counsel for the petitioner has also placed reliance on the decision in the case of Digvijay Singh and others vs. Arvind Singh Bhadoriya, 2000 (4) MPHT 474 wherein it has been held that the respondent/complainant was slapped by the sh Town Inspector (petitioner)). Consequently, his left ear drum was torn.
e Crime for offence under section 325 of I.P.C. was registered. It was ad held that the petitioner was deputed to maintain the law and order and Pr was discharging his official duty and, therefore, held that sanction was necessary from the authorities under section 197 of Cr.P.C.
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14. Arguments have also been advanced by learned counsel for the ad petitioner relying upon the decision in the case of Ajoy Acharya vs. M State Bureau of Investigation Against Economic Offences, (2013) 16 SCC 728, in which, the accused was an IAS Officer holding the office of of Industry Commissioner. It was alleged that he was participating in the Board (MPSIDC) meeting which led to passing of a controversial rt resolution that was contrary to the decision taken in the earlier ou meeting, in which he was a party. The grievance raised was that Court C has taken cognizance without sanction from any competent authority. h Therefore, the Apex Court has held that the appellant was participating ig in the meeting of Board of Directors of MPSIDC on account of his H nomination as Direction and had no nexus to the other two posts held by him. Even sanction of Governor was not required in the present case for filing of charge-sheet in 2007 as the appellant had relinquished the charge of office of nominee Director.
15. Section 197 of Cr.P.C. has been enacted to safeguard against the vexatious proceeding against the public servant. The privilege of immunity from prosecution without sanction only extends to acts which can be shown to be in the discharge of official duty.
16. The petitioner was the incharge of the examination centre and allegedly "mass-copying" was being done in almost all the rooms. The Invigilators were also silent and were not performing their duties properly. When the surprise inspection was conducted "mass copying"
was found. Some slips, books and guides were seized. Out of which some books were burnt by the Invigilators outside the class room. The upshot of this discussion is that whether sanction is necessary or not has to be decided from the stage to stage. The protection given under section 197 of Cr.P.C. is to protect responsible public servant against sh the institution of possibly vexatious criminal proceedings for offences e alleged to have been committed, while they are acting or purporting to ad act as public servants. This protection has certain limits and is avialble Pr 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 a cloak for doing the objectoinable act.
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17. Before protection under section 197 of Cr.P.C. to be invoked, it M must be shown that the official concerned was an accused of an offence alleged to have been commited by him while acting or of purporting to act in the discharge of his official duties. The petitioner was the incharge of the Examination Centre. It is alleged that she was rt discharging her official duty but she had no control over the Centre.
ou Hence, the act does fall within the scope and range of official duty of C the petitioner.
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18. In case of B.Shah vs. M.S.Kochar, AIR 1979 SC 1841 the Apex ig Court while dealing with the protection under section 197 of the Code H of Criminal Procedure has opined that while 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. 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 Cr.P.C. will be attracted.
19. It would be in other words "sanction" is necessary if the acts complained of by public servants are so integrally connected with the duties attached to the office as to be inseparable from them. But, if there is no necessary connection between them and the performance of the duties, then no sanction is necessary. The petitioner was the incharge of the Centre and was duty bound to conduct the examination without any hindrance. She did not do any act, as required, to control the examination centre and to stop the "mass-copying".
20. Therefore, it is clear omission or negligent on her part to conduct sh fair examination. One safe and sure test in this regard would be to e consider if the omission or neglect on the part of the public servant to ad commit the act complained of could have made her answerable for a Pr charge of dereliction of duty. If the answer to this question is in the affirmative it may be said that such act was committed by the public a servant petitioner while acting in the discharge of her official duty. If hy the answer to this question is in the affirmative, it may be said that ad such act was committed by the petitione while acting in the discharge M of her official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect of makes it clear that the concept of sectoin 197 of Cr.P.C. does not get immediately attracted on insitution of the complaint case. This view is rt fortified by the judgment rendered in the case of State of Orissa vs. ou Ganesh Chandra Jew, (2004) 8 SCC 40. C h
21. Thus, it would be for the Competent Authority to consider the ig question of grant of sanction in accordance with law. In case sanction H is granted only then the petitioner can be prosecuted and not otherwise.
22. Resultantly, this petition is allowed. The order framing of charge dated 09.10.2107 is set aside. The petitioner is discharged. It is made clear that if the Sanctioning Authority accords sanction for prosecution in writing against the petitioner, only then the petitioner can be prosecuted and not otherwise.
23. Accordingly, the petition is allowed.
Digitally signed by RAJESH T MAMTANIDate: 2018.02.28 22:44:16 -08'00' (SUSHIL KUMAR PALO) JUDGE RM e sh ad Pr a hy ad M of rt ou C h ig H