Himachal Pradesh High Court
Date Of Decision: 05.07.2024 vs Ghanshayam Misra on 5 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:4917 G23IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.799 of 2023 Date of Decision: 05.07.2024 .
_______________________________________________________ Joginder Singh Chauhan .......Petitioner Versus Ghanshayam Misra ... Respondent Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.
For the Petitioner:
r to
Mr. Ajay Kochhar, Senior Advocate, with Mr.
Anubhav Chopra, Advocate.
For the Respondents: Mr. Rohan Tomar, Advocate.
_______________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition filed under Section 482 of the Code of Criminal Procedure, prayer has been made on behalf of petitioner for quashing of complaint bearing No. 28 of 2022 titled as Ghanshyam Misra Vs. Joginder Chauhan as well as consequential proceedings, including order of cognizance dated 13.03.2023, whereby learned Judicial Magistrate First Class, Court No. 5, Shimla, District Shimla, H.P., while taking cognizance of private complaint having been filed by the complainant-respondent against the petitioner-accused for his having committed offences punishable under Sections 166 & 167 and 500 of Indian Penal Code, proceeded to issue process.1
Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 11/07/2024 20:29:45 :::CIS 2
2. Precisely, the facts of the case, relevant for adjudication of the case at hand are that respondent-complainant (hereinafter to .
be referred to as 'complainant'), lodged a private complaint in the court of learned Judicial Magistrate First Class Court No. 5, Shimla, District Shimla, H.P., stating therein that he owned and possessed a plot comprised as plot B-85 in Sector 3, New Shimla, which is adjoining to the house of petitioner-accused. Complainant averred in the complaint that he had got the plan of his building sanctioned by the then Governing Authority i.e. Nagar Panchayat Kasumpti vide letter No. NPK/PLAN (657)-02-300 dated 13.02.2003 and accordingly, commenced the construction work. Complainant alleged in the complaint that temporary electricity and water connections was also issued in favour of the complainant by Special Area Development Authority (S.A.D.A). Complainant alleged in the complaint that petitioner-accused had approached his son for buying the plot of the complainant, but once, such offer was refused, petitioner-accused, who at that relevant time, was holding influential position of Additional Commissioner (Law), Municipal Corporation, Shimla, started creating trouble. Complainant alleged that while misusing his position, petitioner-accused rendered incorrect legal advice/opinion pressing upon Municipal Corporation, Shimla to invoke provision under Section 251 of Himachal Pradesh Municipal Corporation Act, 1984, ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 3 (hereinafter to be referred to as 'HPMC Act') qua the prayer made by the complainant for extension of time/ renewal of sanction plan.
.
Complainant alleged that though petitioner-accused had definite knowledge that Section 251 of the HPMC Act stood repealed by way of amendment of the statute in the year 2007, but yet while rendering legal advice/opinion qua the plot of the complainant, specifically advised Municipal Corporation to not to renew the sanction plan of the complainant. Complainant further alleged in the complaint that accused, while rendering legal advice, failed to inform the Municipal Corporation that he has conflict of interest in the matter and otherwise should not have rendered legal advice/ opinion. However, he in violation of service (conduct) rules, kept on giving incorrect legal advices, as a result thereof, great prejudice was caused to the complainant. Complainant further alleged that all legal notices issued upon him by Municipal Corporation was based upon incorrect and invalid legal advice rendered by the petitioner-accused, who was otherwise interested to trouble him and malign his reputation in his office and amongst his staff members. Since, at that relevant time petitioner-accused was working as an Additional Commissioner (Law), complainant specifically submitted before the court concerned that protection of Section 197 Cr.P.C is not available with the petitioner-accused because he was not a Government employee, ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 4 rather employee of Corporation. Besides above, complainant also submitted before court concerned that otherwise also legal .
advices/opinions rendered by the petitioner-accused were not in the discharge of public duty, rather same were issued with a view to humiliate and harass the complainant. In support of aforesaid submission, complainant specifically invited attention of the court concerned to judgment passed by Hon'ble Apex in case titled Mohd.
Hadi Raja Vs. State of Bihar & Anr. (1998) 5 SCC 91, wherein admittedly it came to be held that protection of Section 197 Cr.P.C was not available to Officers of Companies or public undertaking even if it fell within the definition of 'State' under Article 12 of the Constitution.
3. Learned court below having taken note of averments contained in the complaint, as has been taken note hereinabove as well as afore judgment pressed into service on behalf of complainant, proceeded to issue process against the petitioner-accused. In the aforesaid background, petitioner-accused has approached this court in the instant proceedings, praying therein to quash the complaint as well as summoning order on the ground that complaint made by the complainant ought not have entertained by the court without there being prior sanction by the appropriate authority as envisaged under Section 197 Cr.P.C.
::: Downloaded on - 11/07/2024 20:29:45 :::CIS 54. Vide order dated 03.08.2023, this court, while issuing notice to the complainant, stayed the further proceedings in the .
complaint, as detailed hereinabove, as a result thereof, no further proceedings in the complaint have taken place till date.
5. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Ajay Kochhar, learned Senior Advocate for the petitioner, who is duly assisted by Mr. Anubhav Chopra, Advocate, is that learned court below, while issuing process failed to take note of the fact that all the legal advices/opinions were rendered by the petitioner-accused qua the renewal and extension of time of the map of the complainant in the capacity of Additional Commissioner (Law), Municipal Corporation.
Mr. Kochhar, while making this court peruse various documents adduced on record, vehemently argued that opinion qua the prayer made by the complainant for extension of time or renewal of the map was sought by the department concerned of the petitioner-accused, who at that relevant time, was heading the Law Department, Municipal Corporation and as such, he was otherwise under obligation to render legal advice/opinion. While making this court peruse Section 21 of Indian Penal Code (hereinafter to be referred to as 'IPC'), wherein public servant has been defined, Mr. Kochhar, specifically invited attention of this court to category 12(b) of Section ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 6 21 IPC, which provides that any person in the service or pay of a local authority, a corporation established by or under a Central, Provincial .
or State Act or a Government company as defined in section 617 of the Companies Act, 1956, would be deemed to be public servant. Mr. Kochhar, submitted that since it is not in dispute that at relevant time petitioner-accused was working in Municipal Corporation as an Additional Commissioner (Law), no case otherwise could have been entertained against him without there being prior sanction as required under Section 197 Cr.P.C. While making this court peruse judgment passed by Hon'ble Apex Court in Mohd. Hadi Raja supra, Mr. Kochhar, submitted that at no point of time Hon'ble Apex Court in aforesaid judgment held that person working in the Municipal Corporation or any public undertaking shall not be considered to be a public servant in terms of provisions contained under Section 21 of IPC, rather to avail benefit of Section 21 of IPC an employee working in Corporation or public undertaking is required to satisfy the other conditions as indicated in Section 197 IPC, which specifically talks about discharge of public duty. Mr. Kochhar, learned Senior counsel, while making this court peruse complaint filed by the complainant, attempted to carve out a case that there is nothing to suggest that the act of rendering legal advices/opinions in the capacity of Additional Commissioner (Law) was not public duty and same were not issued, ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 7 in the discharge of public duty, rather entire case of complainant is that on account of conflict of interest, petitioner-accused otherwise .
ought not have rendered legal advice to Municipal Corporation and at first instance should have informed Municipal Corporation that on account of his personal interest, he is not in a position to render legal advice. Mr.Kochhar, further argued that mere fact that petitioner-
accused, who happens to be immediate neighbour of the complainant and at one point of time, he had offered to purchase the plot of the complainant, cannot be ground to conclude conflict of interest, if any, especially when, no prayer was ever made by the complainant to head of the Municipal Corporation, to not to assign the work of rendering legal advice to the petitioner-accused qua the prayer made by the complainant for extension of time or renewal of map.
6. While fairly admitting factum of lodging of complaint by the complainant to the Commissioner, Municipal Corporation, Shimla, Mr. Kochhar, submitted that the complaint, if any, against the petitioner-accused came to be made after rendering of legal advice/opinion and as such, same is/was of no consequence. While inviting attention of this court to the grounds taken in the petition, Mr. Kochhar, made a serious attempt to persuade this court to agree with his contention that legal advices/opinions rendered by the petitioner-
accused, were strictly in conformity with the provisions contained in ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 8 HPMC Act and at no point of time, attempt, if any, was ever made by the petitioner-accused to cause obstacle and hurdle in the work of the .
complainant, who was otherwise under obligation to raise construction in terms of by-laws of Municipal Corporation.
7. While referring to the judgment passed by Hon'ble Apex in D.Devaraja Vs. Owais Sabeer Hussain, 2020 (7) SCC 695, learned Senior Counsel for the petitioner argued that by now it is well settled that sanction is required not only for the acts done in the discharge of official duty, but also required for any purportedly act done in the discharge of official duty and/or act done under colour of law or in excess of duty or authority. He submitted that in the present case, act of complaint was done while discharging of official duty and such cognizance should not have been taken without there being prior sanction as envisaged under Section 197 Cr.P.C.
8. To the contrary, Mr. Rohan Tomar, learned counsel for the complainant, supported the impugned order, while refuting the aforesaid submission of learned Senior counsel for the petitioner-
accused, learned counsel representing the complainant, though admitted that Additional Commissioner (Law), Municipal Corporation can be deemed to be public servant in terms of provisions contained under Section 21 of IPC, but petitioner-accused, who at that relevant time, was serving as Additional Commissioner (Law) cannot be ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 9 termed to be public servant for the reason that at no point of time petitioner-accused was given appointment in Municipal Corporation .
pursuant to order passed by Governor of Himachal Pradesh and secondly, petitioner-accused being Additional Commissioner (Law) in Municipal Corporation never received remuneration from the Government, rather same was paid by corporation funds.
9. Mr. Rohan Tomar, learned counsel for the complainant, also placed reliance upon judgment passed by Hon'ble Apex court in Mohd. Hadi Raja supra to state that no prior sanction under Section 197 Cr.P.C was required for prosecution of the petitioner-accused for the reason that impugned action was not in the discharge of public duty, rather same is result of share abuse of office. Learned counsel for the complainant further argued that once it is not in dispute that petitioner-accused was immediate neighbourer of the complainant and at one point of time he had offered to buy the plot, on which subsequently, complainant proposed to raise construction, there was no occasion, if any, for the petitioner-accused to render legal advice/opinion qua the request for extension of time and renewal of map, but yet with a view to harass the complainant, he not only rendered incorrect legal advices, but ensured that permission is not granted in favour of the complainant. Learned counsel for the complainant further submitted that in such like situation petitioner-
::: Downloaded on - 11/07/2024 20:29:45 :::CIS 10accused himself ought to have refused to render advice by citing reason of conflict of interest, but yet he rendered advice and ensured .
that demolition order is passed by the Commissioner, Municipal Corporation, which ultimately came to be set aside by Coordinate Bench of this court.
10. While referring to judgment passed by Hon'ble Apex Court in case titled as Bharat Sanchar Nigam Ltd. & Ors. Vs. Pramod V.Sawant & Anr. in Criminal Appeal No. 503 of 2010 decided on 19.08.2019 and Shadakshari Vs. State of Karnataka & Anr. in Criminal Appeal No. 256 of 2024 decided on 17.01.2024, learned counsel for the complainant argued that definition of public servant as given in Section 21 of IPC is not to be construed for a public servant as mentioned in Section 197 Cr.P.C. He further submitted that otherwise also as per aforesaid judgments definition of public servant as given in Section 21 of IPC is not to be interpreted liberally, rather strict meaning as provided under definition is to be given.
11. While referring to judgment passed by Hon'ble Court in Bharat Sanchar Nigam Ltd. & Ors. supra, learned counsel for the complainant submitted that three mandatory requirements are required to be fulfilled for the applicability of the protection under Section 197 of the Cr.P.C:
::: Downloaded on - 11/07/2024 20:29:45 :::CIS 11 "(a) that the accused is a public servant,
(b) that the public servant can be removed from the
post by or with the sanction either of the Central or State .
Government, as the case may be,
(c) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties."
12. While referring to the provisions contained in HPMC Act, learned counsel for the complainant submitted that since power to remove Additional Commissioner lies with the Commissioner, Municipal Corporation, there was otherwise no requirement, if any, for prior sanction as under Section 197 Cr.P.C.
13. Having heard learned counsel for the parties and perused material available on record, this court finds that prior to his being appointed as Additional Commissioner (Law) at Municipal Corporation, petitioner-accused was discharging his duty as Manager (Legal) in HP Agro Industrial Packaging India Ltd., but subsequently services of the petitioner-accused were made available to Municipal Corporation, Shimla, on secondment basis in the year 2005 (Annexure P-3). Subsequently, vide notification dated 13.01.2006 issued by Principal Secretary, Urban Development Government of Himachal Pradesh, petitioner herein came to be absorbed in the Municipal Corporation against the post of Law Officer in pay scale of ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 12 Rs. 10025/- +15100, meaning thereby w.e.f 13.01.2006 petitioner had become an employee of the Municipal Corporation for all intent and .
purposes and in the year 2013, he was made Additional Commissioner (Law). Vide notification dated 4/05.07.2022 issued under the signatures of Registrar General of High court of HP, petitioner herein came to be designated as Special Judicial Magistrate First Class, Municipal Corporation, Shimla, for a period of one year to try offences detailed in Schedule-II of Sections 383 & 352 of HPMC Act, within the local limits of Municipal Corporation, Shimla.
14. As per pleadings adduced on record, petitioner-accused in the capacity of Additional Commissioner (Law), Municipal Corporation, Shimla, rendered certain legal advices/opinions qua the prayer made by the complainant to Municipal Corporation for extension of time and renewal of map, as a result thereof, construction carried out by the complainant on the plot adjacent to the house of the petitioner-accused was ordered to be dismantled by Commissioner, Municipal Corporation, while exercising power under Sections 254 Sub Section 6 and 253 of HPMC Act. Though, aforesaid order of demolition was upheld by learned District Judge, Shimla, but fact remains that ultimately same was set aside by Coordinate Bench of this court, while exercising power under Article 227 of the Constitution of India.
::: Downloaded on - 11/07/2024 20:29:45 :::CIS 1315. Precisely, the question, which needs to be determined in the case at hand is "Whether the act of rendering legal .
advices/opinions by the petitioner-accused qua the prayer made on behalf of complainant for extension of time and renewal of map was in discharge of public duty or not?" If yes, "could private complaint filed by the complainant, levelling therein serious allegations against petitioner-accused be entertained by the competent court of law without there being prior sanction as envisaged under Section 197 Cr.P.C or not?"
16. Precisely, the case of the petitioner-accused is that legal advices/opinions rendered by him, as detailed in complaint, was in discharge of public duty and as such, complainant ought to have procured sanction under Section 197 Cr.P.C before filing of private complaint. At this stage, it would be apt to take note of definition of public servant as given under Section 21 which read as under:
The word "PUBLIC SERVANT" denotes the person falling under any of the following categories:-
(i) *********** (Omitted)
(ii) Any officer commissioned under the Military, Naval, and Air forces of the country.
(iii) Any judge or designated person who is lawfully empowered to discharge any adjudicatory functions, whether by himself or as a member of the bodies of the persons.::: Downloaded on - 11/07/2024 20:29:45 :::CIS 14
(iv) Any officer of a court of justice whose duty is to investigate any matter of law or to report the matter. The officer who is allowed to keep the record of the matter, or to .
take the charge to dispose of any property or to execute any judicial process or who can administrate any oath-taking, or preserve any order of the court, any person who is appointed by the court with the authority to perform these duties.
(v) Every juryman, assessor, or member of the panchayat assists the court of justice or the public servant.
(vi) Every arbitrator who is appointed by the court for any matter that has been referred for the decision, or any other person competent public authority.
(vii) Any person who is authorized to hold any office by the virtue of which he is empowered to place or keep any person in confinement.
(viii) Any officer whose duty is to prevent any offences or to report the offence, to bring the offenders to justice, and to protect the public their well-being and safety.
(ix) Every officer whose duty is to take, receive, or keep to expand the property on behalf of the government, or to make any survey or assessment or contact, or to execute any revenue process or to investigate or to report, on any matter affecting the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of any pecuniary interest of the government.
(x) Any officer whose duty is to take, receive, or keep to expand the property, to make any survey or assessment, or to ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 15 levy the tax on the secular common purpose of any village, town, and district.
(xi) Every person who holds the office under the virtue of the .
power to prepare and publish, maintain and revise an electoral roll or to conduct the election.
(xii) (a) Any person in the service or pay of the Government remunerated by fees or commission for the performance of any public duty by the Government.
b) Any person in the service or pay of a local authority, or a corporation which is under a Central or State or as explained or defined in section 617 of the Companies Act, 1956 (1 of 1956).
17. Condition No. XII (b) of Section 21 of IPC specifically provides that any person in the service or pay of a local authority, or a corporation which is under a Central or State Act or as explained or defined in Section 617 of the Companies Act, 1956, shall be deemed to be public servant. Explanation given to aforesaid provision of law to especially No. 1 clearly provides that persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Section 197 Cr.P.C makes it mandatory for a person desirous of initiating legal action against public servant to have prior sanction for prosecution, especially when, act of public servant laid under challenge is done in discharge of public duty. At this stage, it would be apt to take note of Section 197 Cr.P.C:
::: Downloaded on - 11/07/2024 20:29:45 :::CIS 16"197. Prosecution of Judges and public servants.
(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.
[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, ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 17 section 354D, section 370, section 375, section 376, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB 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 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" occurringtherein, the expression "State Government" were substituted.
((3A) 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.] ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 18 [(3B) 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 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."
19. Hon'ble Apex Court in case titled Chandan Kumar Basu Vs. State of Bihar, (2014) 13 SCC 70, while interpreting Section 197 Cr.P.C., elucidating requirements to be fulfilled for applicability of the protection under Section 197 Cr.P.C observed as under:
::: Downloaded on - 11/07/2024 20:29:45 :::CIS 19"8. A reading of the provisions of Section 197(1) of the Code reveals that there are three mandatory requirements under Section 197(1) of the Code. namely:
.
(a) that the accused is a public servant;
(b) that the public servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be;
(c) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties."
20. As per aforesaid judgment, three conditions are required for taking shelter under Section 197(i) of Cr.P.C i.e. (i) that the accused is a public servant; (ii) that the public servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be and (iii) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties.
21. In the instant case, all the illegal opinions/advices, which is the alleged offence, were issued by the petitioner-accused in the capacity of Additional Commissioner (Law). No doubt, initial appointment of the petitioner-accused was in HP Agro Industrial Packaging India Ltd., but, as has been taken note hereinabove, he subsequently stood absorbed in the Municipal Corporation, Shimla, ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 20 H.P. pursuant to notification issued by the Department of Urban Development, Government of HP.
.
22. After issuance of notification dated 13.01.2006, petitioner-accused had become an employee and officer of Municipal Corporation, Shimla, for all intent and purposes. XII(b) condition of Section 21 of IPC clearly talks about an employee of a corporation established by or under a Central, Provincial or State Act. Since, it is not in dispute that Municipal Corporation is creation of a statute i.e. Himachal Pradesh Municipal Corporation Act and petitioner-accused was employee of such corporation, he can be easily held to be public servant in terms of provision contained under Section 21 of IPC.
23. Though, learned counsel for the complainant attempted to carve out a case that not in all situations public servant as defined under Section 21 IPC can claim parity with the public servant as defined under Section 197 Cr.P.C., but such plea of him cannot be accepted for the reason that for the purpose of Section 197 Cr.P.C., public servant has not been defined separately, rather for that purpose, reliance is to be placed upon Section 21 of IPC, where public servant has been specifically defined.
24. Though, in support of aforesaid submission, learned counsel for the complainant placed heavy reliance upon judgment passed by Hon'ble Apex Court in Mohd. Hadi Raja supra, but if the ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 21 aforesaid judgment is read in its entirety, it nowhere held that officers of a local authority, a corporation established by or under Central, .
Provincial or State Act are not the public servant, but held that protection under Section 197 Cr.P.C is not available to public servant automatically on account of his being included in definition of public servant as envisaged under Section 21 of IPC, rather to take shelter of Section 197 Cr.P.C., he/she is required to fulfill other conditions as defined under Section 197 Cr.P.C, which specifically talks about discharge of public duty.
25. Aforesaid judgment passed by Hon'ble Apex Court in Mohd. Hadi Raja supra subsequently came to be discussed by Hon'ble Apex Court in judgment passed in Bharat Sanchar Nigam Ltd. & Ors. supra, wherein Hon'ble Apex Court has reiterated that employees of public sector corporation are not entitled to protection under Section 197 Cr.P.C. as public servant. While discussing judgment in Mohd. Hadi Raja supra, Hon'ble Apex Court in afore case held that court was considering the need for sanction to prosecute the officer of public sector undertaking or government companies falling with the definition of 'State' under Article 12 of the Constitution and who were removable from the office save by sanction of Government. While taking note of judgment passed by Hon'ble Court in N.K.Sharma Vs. Abhimanyu, (2005) 13 SCC 213, ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 22 wherein Hon'ble Apex Court having taken note of fact that salary of the appellant in that case was not paid by the Government and at that .
relevant time he was not in the service of the State, held that the prosecution against an officer of a government company or a public undertaking would not require any sanction under Section 197 Cr.P.C.
26. In the afore judgment, Hon'ble Apex Court also took note of its earlier judgment passed in Chandan Kumar Basu supra, wherein three principles came to be culled out for bringing into operation Section 197 Cr.P.C.
27. In nutshell, employee seeking protection under Section 197 Cr.P.C is required to prove that he is a public servant and he can only be removed from the post by or with the sanction either of the Central or State Government and the act(s) giving rise to the alleged offence was committed by him/her in the actual or purported discharge of official duties.
28. Though, learned counsel for the complainant placed heavy reliance upon judgment in Bharat Sanchar Nigam Ltd. supra, but having perused judgment in its entirety, this court finds no application of the same in the instant case for the reason that in case before Hon'ble Apex Court, though officers seeking protection under Section 197 Cr.P.C., were originally employee of Indian Telecom services, but at the time of alleged offence, they stood absorbed with ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 23 Bharat Sanchar Nigam Ltd., a company and had become its employees for all intent and purposes. Apart from above, in that case .
there was nothing to suggest that salary of the petitioner-accused in those cases, who at that relevant time working in Bharat Sanchar Nigam Ltd. was being paid by government, rather that was being paid by the company. In the case at hand, there is no dispute that legal advices/opinions rendered, which were allegedly not in the interest of the complainant, were rendered by the petitioner-accused in the capacity of Additional Commissioner (Law) in Municipal Corporation, meaning thereby, complainant is aggrieved of action of the petitioner-
accused in rendering legal advice/opinion, which as per him was not rendered in discharge of public duty.
29. While ascertaining nature of action of the petitioner-
accused in rendering legal advices/opinions in the capacity of Additional Commissioner (Law), this court is not required to return finding qua the plea of conflict of interest, raised by the complainant, rather in these proceedings court is only required to see whether action of petitioner-accused in rendering legal opinions/advices was in discharge of public duty or not? Since, it is not in dispute that all legal advices/opinions were rendered by the petitioner in the capacity of Additional Commissioner (Law) that too pursuant to the queries raised by the staff concerned etc., this court is persuaded to agree with ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 24 learned Senior Counsel for the petitioner-accused that legal advices/opinions were rendered in discharge of public duty. Since .
petitioner-accused specifically falls in Category XII(b) of public servant as defined under Section 21 of IPC, coupled with the fact that legal advices/ opinions were rendered by him in discharge of public duty, there appears to be merit in the contention of learned Senior Counsel for the petitioner that private complaint filed by the complainant could not have been entertained by the court concerned without there being prior sanction as envisaged under Section 197 Cr.P.C. Even if the aforesaid case is considered from another angle or in terms of parameters of guidelines laid down by Hon'ble Apex Court in Chandan Kumar Basu supra, which further came to be followed by Hon'ble Apex Court in Bharat Sanchar Nigam Ltd. & Ors. Supra, petitioner herein, who is seeking protection under Section 197 Cr.P.C qualifies the test. Undoubtedly, he being Additional Commissioner (Law), Municipal Corporation, which was created under statute, is a public servant as defined under Section 197 Cr.P.C and offence alleged to have been committed by the petitioner-accused, whereby he allegedly rendered incorrect legal advices/opinions, was done in discharge of public duty and it is also not in dispute that he could not be removed from the post by or without prior sanction of Government.
Though, at this stage, learned counsel for the complainant, while ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 25 referring to the provision contained in HPMC Act vehemently argued that services of the petitioner-accused were at the disposal of .
Municipal Corporation, but this court is not impressed with aforesaid submission for the reason that certainly petitioner-accused being Additional Commissioner (Law), Municipal Corporation is/was expected to work under the control of Commissioner, Municipal Corporation, Shimla, who is appointed by the Government. It is not a case of the complainant/respondent that Municipal Commissioner himself straightaway without following due procedure of law or without there being any reason could order removal of the petitioner-accused, who at that relevant time was working as an Additional Commissioner (Law), appointed by Urban Department, H.P.
30. At this stage, learned counsel for the complainant invited attention of this court to judgment dated 17.01.2024 passed by Hon'ble Apex Court in case Shadakshari Vs. State of Karnataka & Anr., to contend that person accused of committing the offence of fabrication of records or misappropriation of public funds cannot be termed to be public servant as defined under Section 21 IPC and Section 197 Cr.P.C. Before considering application of the afore judgment in the case at hand, it may be apt to take note of the following paras of the judgment:
19. The ambit, scope and effect of Section 197 Cr.P.C has received considerable attention of this court. It is not necessary to advert to ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 26 and dilate on all such decisions. Suffice it to say that the object of such sanction for prosecution is to protect a public servant discharging official duties and functions from undue harassment by initiation of frivolous criminal proceedings.
.
20. In State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40, this court explained the underlying concept of protection under Section 197 and held as follows:
"7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or rpurporting 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 they choose to exercise it, complete control of the prosecution. This 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 act and the performance of the official duty, the excess will not be a sufficient groundto deprive the public servant 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 ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 27 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 is it 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. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case."
21. This aspect was also examined by this court in Shambhu Nath Misra (supra). Posing the question as to whether a public servant who allegedly commits the offence of fabrication of records or misappropriation of public funds can be said to have acted in the discharge of his official duties. Observing that it is not the official duty to fabricate records or to misappropriate public funds, this court held as under:
::: Downloaded on - 11/07/2024 20:29:45 :::CIS 28"5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official .
duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained."
22. Even in D. Devaraja (supra) relied upon by learned counsel for respondent No. 2, this court referred to Ganesh Chandra Jew (supra) and held as follows:
"35. In State of Orissa v. Ganesh Chandra Jew (State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40: 2004 SCC (Cri) 2104] this Court interpreted the use of the expression "official duty" to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty."::: Downloaded on - 11/07/2024 20:29:45 :::CIS 29
23. Thus, this court has been consistent in holding that Section 197 Cr.PC does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of .
official duties.
24. After the hearing was over, learned counsel for respondent No.2 circulated a judgment of this Court in A. Srinivasulu Vs. State Rep.
by the Inspector of Police, 2023 SCC OnLine SC 900 in support of the contention that a public servant cannot be prosecuted without obtaining sanction under Section 197 of Cr.PC. We have carefully gone through the aforesaid decision rendered by a two Judge Bench of this Court in A. Srinivasulu (supra). That was a case where seven persons were chargesheeted by the Central Bureau of Investigation (CBI) for allegedly committing offences under Section 120B read with Sections 420, 468, 471 along with Sections 468 and 193 IPC read with Sections 13 (2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act, 1988). Four of the accused persons being A-1, A-2, A-3 and A-4 were officials of Bharat Heavy Electricals Limited, a public sector undertaking and thus were public servants both under the IPC as well as under the P.C. Act, 1988. Accused No.1 had retired from service before filing of the chargesheet. Insofar accused Nos. 3 and 4, the competent authority had refused to grant sanction but granted the same in respect of accused No.1. It was in that context that this court considered the requirement of sanction under Section 197 Cr.P.C qua accused No.1 and observed that accused No.1 could not be prosecuted for committing the offence of criminal conspiracy when sanction for prosecuting accused Nos.3 and 4 with whom criminal conspiracy was alleged, was declined. This court held as follows:
"52. It must be remembered that in this particular case, the FIR actually implicated only four persons, namely PW-16, A-3, A-4 and A-5. A-1 was not implicated in the FIR. It was only after a confession statement was made by PW-16 in the year 1998 that A-1 was roped in. The allegations ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 30 against A-1 were that he got into a criminal conspiracy with the others to commit these offences. But the Management of BHEL refused to grant sanction for prosecuting A-3 and A-4, twice, on the ground that the decisions taken were in .
the realm of commercial wisdom of the Company. If according to the Management of the Company, the very same act of the co-conspirators fell in the realm of commercial wisdom, it is inconceivable that the act of A-1, as part of the criminal conspiracy, fell outside the discharge of his public duty, so as to dis-entitle him for protection under Section 197(1) of the Code."
24.1 Admittedly, facts of the present case distinguishable from the facts of A. Srinivasulu (supra) and, r are therefore, the said decision cannot be applied to the facts of the clearly present case.
31. If the aforesaid judgment is read in its entirety, Hon'ble Apex Court, while reiterating that very object of sanction, if any, under Section 197 Cr.P.C for prosecution is to protect a public servant discharging official duties and functions from undue harassment by initiation of frivolous criminal proceedings. Further held that Section 197 Cr.P.C does not extend its protective cover to every act or omission of a public servant while in service, rather it is restricted to only those acts or omission which are done by public servant in the discharge of official duties. While dealing with the question, if public servant is alleged to have been committed the offence of fabrication of record or misappropriation of public funds etc., Hon'ble Apex Court ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 31 specifically placed reliance upon in its earlier judgment passed in Shambhoo Nath Misra Vs. State of U.P., (1997) 5 SCC 326, .
wherein Hon'ble Apex court, while answering the question posed to it that "when a public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc., can he be said to have acted in discharge of his duties", held that it is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. or in discharge of official duty Official capacity only enables him to fabricate the record or misappropriate the public fund but it does not mean that it is integrally connected or inseparably interlinked with crime committed in the course of the same transaction.
32. Having taken note of aforesaid judgment, Hon'ble Apex Court in Shadakshari supra held that the question whether complainant in that case was involved in fabrication of official documents, while misusing official position, is a matter of trial, which certainly cannot be decided in the private complaint filed by the complainant, qua which otherwise prior sanction as envisaged under Section 197 Cr.P.C was required to be taken by the petitioner-
accused.
33. In the case at hand, careful perusal of complaint if read in its entirety nowhere suggests that precise allegation, if any, ever ::: Downloaded on - 11/07/2024 20:29:45 :::CIS 32 came to be levelled against the petitioner-accused that he fabricated the public record, rather precise allegation against him was that he in .
the capacity of Additional Commissioner (Law) rendered illegal advices to the detriment of the complainant. Moreover, this court has been informed that separate proceedings alleging therein fabrication of record stands filed at the behest of complainant before the Additional District Judge Court No. II, Shimla, H.P. If it so, aspect of fabrication of record shall be gone into those proceedings, but certainly not in the complaint lodged at the behest of complainant, which otherwise cannot be permitted to continue for want sanction of prosecution as envisaged under Section 197 Cr.P.C.
34. Consequently, in view of the aforesaid discussion as well as law laid taken into consideration, complaint No. (V) 105-2 of 2022 titled Ghanshaym Misra Vs. Joginder Chauhan along with consequent proceedings pending in the court of learned JMFC, Court No. 5, Shimla, are quashed and set aside.
The petition stands disposed of in the aforesaid terms, alongwith all pending applications.
(Sandeep Sharma), Judge July 05, 2024 (sunil) ::: Downloaded on - 11/07/2024 20:29:45 :::CIS