Madhya Pradesh High Court
Rajkumar Gupta vs The State Of Madhya Pradesh on 13 March, 2018
Author: Atul Sreedharan
Bench: Atul Sreedharan
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Miscellaneous Criminal Case No.3566 of 2015
Rajkumar Gupta................................................................Petitioner
Versus
The State of Madhya Pradesh and another...................Respondent
For the petitioner : Mr. Anil Khare, Sr. Advocate with Ms.Pallavi
Khare and Mr.J.S. Hora, Advocates.
For the respondent : Mr. B.S.Kushwaha, Panel Lawyer
No.1.
For the respondent : Mr. Ashish Shroti, Advocate
No.2.
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Present:
HON'BLE MR. JUSTICE ATUL SREEDHARAN
******
ORDER
(13.3.2018) The present petition has been filed by the petitioner challenging the proceedings pending against him in the Court of learned Judicial Magistrate First Class, Hoshangabad, district Hoshangabad in Criminal Case No. 1003/12 (State of Madhya Pradesh through Police Station Anusuchit Jati Kalyan (AJK), Hoshangabad v. Rajkumar).
2. A charge-sheet was filed against the petitioner for offences under Sections 323, 294 and 506, registered by the respondent No. 2 Jagdish Prasad Sakalle on 25.10.2011. The petitioner moved an application before the learned J.M.F.C for dropping of the proceedings on the ground that sanction under Section 197 Cr.P.C was not taken and he was proceeded in 2 absence thereof. The learned Trial Court dismissed the said application on the ground that the nature of the offences for which the petitioner was charged, were such that it could not be linked with discharge of his official duties. The petitioner preferred a Criminal Revision against the said order before the Court of learned Additional Sessions Judge, Hoshangabad in Criminal Revision No. 131/2012 which was dismissed vide order dated 27.12.2014, thereby sustaining the order of the learned Trial Court.
3. Additional documents have been brought on record vide I.A. No. 15205/2015 and I.A. No. 23940/2016. For the reasons stated therein the said I.A's are allowed and the documents are taken on record and are being considered by this Court.
4. According to the prosecution story, on 23.10.2011 at about 3 p.m. the complainant Jagdish Prasad Sakalle was travelling in his loaded Truck with granite jelly from a mine situated at village Choukley. The petitioner, who is a Mining Inspector, stopped the vehicle and demanded the requisite permit and royalty proof. The respondent No. 2 is stated to have produced the royalty receipt, which the petitioner allegedly tore. The Petitioner is also alleged to have abused the respondent No. 2 and assaulted him for the refusal on the part of the Respondent No.2 to pay an illegal gratification of Rs.10,000/-. The petitioner is stated to have confiscated the vehicle. The respondent No. 2 is stated to be a member of Scheduled Caste and, therefore, he preferred a written complaint before the Station House Officer, Police Station, Seoni Malwa on 23.10.2011 alleging as herein above. The 3 said complaint is at page No. 13 of the Additional documents filed along with I.A. No. 23940/2016. On the basis of the said complaint the F.I.R and proceedings sought to be quashed was registered against the petitioner on 25.11.2011 for offences under Sections 294, 323, 342 IPC. The date of the incident was shown as 23.10.2011 and the time at which the incident occurred is shown as 3 p.m. The petitioner is the sole accused in the case. Annexure 6 to I.A. No. 23940/2016, is the charge-sheet filed by the police against the petitioner which is only under Sections 323, 294 and 506 I.P.C. From the charge sheet it appears that as regards the alleged act of tearing of royalty receipt by the petitioner, the same has been disbelieved by the Police as the petitioner is not being prosecuted for an offence under Section 201 I.P.C.
5. Learned Senior Counsel appearing on behalf of the petitioner argued that the cases sought to be quashed is actually a counter blast which has been filed by the respondent No. 2 on account of an action taken by the petitioner on 23.10.2011. According to the petitioner, the truck in which the complainant was sitting was carrying illegal mineral, being granite chips/jelly. The truck was stopped by the petitioner. The petitioner asked the respondent No. 1 to produce the royalty receipt, upon which, the respondent No. 2 is alleged to have informed the petitioner that he does not have a royalty receipt and also heckled the petitioner and said that the petitioner was trying to be "Harish Chand" and that respondent No. 2 would implicate him in a case. The petitioner preferred an F.I.R against the respondent through a written complaint to 4 the police on 23.10.2011 itself, which is at page 23 to the quash petition. In that FIR, the petitioner has stated that while placing the vehicle seized by him under the custody of Police Station, Dulariya, one Ritesh @ Rinku Jain came there in a green coloured Bolero Vehicle bearing number MP 05 PC 0193 with two other persons, caught hold of the petitioner's collar, beat him, abused him and threatened to kill him. The said complaint was preferred to the SHO of PS Dulariya, district Hoshangabad. On the basis of the said complaint the Police registered Crime No. 134/2011 on 23.10.2011 at 4.30 p.m. In the F.I.R by the Petitioner, along with Ritesh Jain the Respondent No.2 is also an accused.
6. Learned counsel for the petitioner has submitted that the F.I.R against the petitioner was filed two days after the F.I.R registered by the petitioner against the respondent No. 2, which itself clearly reveals that the same is a counter blast. It has been argued on behalf of the Petitioner that he instituted a case against the respondent No. 2 on 24.10.2011 itself in the Court of the Collector Hoshangabad under the provisions of the M.P. Minor Mineral Rules, 1996 for violation of license conditions. Vide order dated 7.6.2012, the said proceedings were disposed of in favour of the State by Collector Hoshangabad in which it is observed that despite the service of notice on respondent No. 2, no one has appeared on his behalf and that the respondent No. 2 appears to have lost his interest in the case after having secured the possession of the Truck involved in the offence. The Collector also observed that the driver of the vehicle had admitted to his guilt and had 5 undertaken not to repeat it again. Thereafter the Collector disposed of the case by imposing a fine of Rs.5000/- on the respondent No. 2. The said order is at page numbers 7 and 8 to the additional documents filed along with I.A. No. 15205/2015. Attention of this Court is drawn to page No. 9, which is the order of the Commissioner, Hoshangabad, before whom the respondent No. 2 had preferred an appeal against the order passed by the Collector. That appeal was also dismissed by order dated 4.4.2013 on account of non- prosecution.
7. Learned counsel for the petitioner has stated that no appeal has been preferred against the order passed by the learned Commissioner before the Board of Revenue and that the said order had become final and binding on the respondent No. 2. Ld. Counsel for the petitioner has also brought to the notice of this Court a report of the Additional Superintendent of Police, Hoshangabad, upon a representation made by the petitioner. In the report, the Police has held that the allegation against the petitioner with regard to offences under the SC/ST Act do not appear to be made out as the petitioner and respondent No. 2 were not known to each other from before. Learned counsel for the petitioner has sought the quashment of the proceedings pending against him on the ground of malice and also on the ground of lack of sanction under Section 197 Cr.P.C as the petitioner is a public servant.
8. Per contra learned counsel for the respondent No.2 has argued that the complaint about the incident was given by the Respondent No.2 on 23.10.2011 itself at PS Seoni Malwa. He 6 argued that he could not be held responsible for the delay in registration of the F.I.R by the police on 25.10.2011. As regards the contention put forward by learned counsel for the petitioner that there has been admission of guilt by the respondent, through his driver, during the proceedings before the Collector in the year 2012 itself, the same is stated to be incorrect. The learned counsel for respondent No. 2 has submitted that the finding of the Collector is based upon the submissions made on behalf of the petitioner in the proceedings before the Collector and not on account of any express admission to that effect. Learned counsel for the respondent has thereafter drawn attention of this Court to the report of Additional Superintendent of Police and has submitted that the report only goes to the extent of showing that offences under the SC/ST Act were not made out and that is why ultimately the charge sheet was filed against the petitioner for offences under Sections 323, 294 and 506 I.P.C.
9. In order to counter the arguments on behalf of the petitioner that the sanction under Section 197 Cr.P.C would be required before cognizance could have been taken, learned counsel for the respondent No. 2 has submitted that tearing of receipts and destroying evidence is not in the discharge of his official duties and neither is the act of beating the respondent No. 2, abusing him and threatening him of dire consequences, associated in any with the discharge of official functions of the petitioner. He has further submitted that this Court has to determine whether the allegations levelled against the petitioner, are actions attributable to him, purported to having 7 been done in the discharge of an official duty. He has also further stated that the requirement for a sanction under Section 197 Cr.P.C can be looked into at the stage of trial itself. He has submitted that the Trial is at an incipient stage where the charges have also not been framed against the petitioner and as the torn receipt constitute a part of the charge sheet against the petitioner, the element of malice also does not lie as there is material on record to show that the petitioner has torn the royalty receipt.
10. Heard the learned counsel for the parties and perused the record of the case.
11. The only question which arises for consideration in this case is whether there ought to have been a sanction under Section 197 Cr.P.C from the State, before cognizance could have been taken of the offences alleged to have been committed by the petitioner. The other question which arises is whether the requirement of a sanction under Section 197 Cr.P.C, should be looked into by this Court while exercising its power under Section 482? or would it be in the interest of justice if the same is left to the Trial Court to examine during the course of the trial?
12. Learned counsel for the petitioner in support of his submissions has placed several judgments before this Court. In Anjani Kumar v. State of Bihar and another - (2008) 5 SCC 248], the respondent No. 2 before the Supreme Court in that case, who was the complainant, filed an application for cancellation of Form 19 relating to the license of one M/s. Arun 8 Medical Hall. The appellant in that case, sent a report for cancellation of the application form for license. On the same date, upon the directions of the District Magistrate the appellant in that case, Anjani Kumar is stated to have conducted a raid at the Medical shop of the respondent No. 2/Complainant in the presence of two Executive Magistrates and certain medicines were seized. The appellant before the Supreme Court filed an F.I.R against the respondent No. 2 of that case for commission of offences punishable under Sections 420, 467, 468 I.P.C and Sections 27 (b) (ii) and 28 of the Drugs and Cosmetics Act, 1940. As a counter blast, the respondent No. 2 preferred a complaint alleging that the appellant Anjani Kumar had committed offences punishable under Sections 161, 167, 465, 466, 469 and 471 I.P.C. On the basis of that complaint an F.I.R was registered against Anjani Kumar. The District Magistrate accorded sanction for prosecution of appellant Anjani Kumar under Section 196 Cr.P.C for commission of the aforementioned offences. Anjani Kumar moved a petition under Section 482 Cr.P.C, which was rejected by the High Court on the ground that no sanction was required. Deciding the case in favour of the appellant Anjani Kumar, the Hon'ble Supreme Court in paragraph 13 examined several previous judgments of the Supreme Court, examining the extent and scope of Section 197 Cr.P.C and in paragraph 14 quashed the case against the appellant on the ground of malice citing the case against him as one falling under category seven of State of Haryana v. Bhajanlal 1992 (Supp.)- I SCC 335.
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13. The second case relied upon by the learned counsel for the petitioner is Army Headquarters v. C.B.I - (2012) 6 SCC
228. In this, the Supreme Court examined an incident related to the Pathribal encounter case. In village Chittisinghpura of District Anantnag in Jammu and Kashmir, thirty six Sikhs were killed by terrorists on 20.3.2000 and immediately thereafter, search commenced in the entire area five persons suspected to be terrorists were killed at Punchalthan in District Anantnag by 7 Rashtriya Rifles on 25.3.2000, in an encounter. The Army claimed that the five persons killed in encounter were responsible for the massacre at Chittisinghpura. Thereafter, on account of protest in the valley with regard to the killing of the five persons by the men of the 7 Rashtriya Rifles, the case was handed over to the CBI. After investigation, the charge sheet was filed in the Court of the Chief Judicial Magistrate- cum-Special Magistrate, CBI, Srinagar, alleging that it was a fake encounter and an outcome of a criminal conspiracy hatched by one Colonel Ajay Saxena, Major Baldev Pratap Singh, Major Sourabh Sharma, Subedar Idrish Khan and some other of the 7 Rashtriya Rifles. It was also alleged that one Major Amit Saxena prepared a false seizure memo showing recovery of arms and ammunitions in the incident and also gave a false complaint to the Police Station for registration of a case against the five civilians showing some of them as foreign militants. The Army officers filed an application before the Trial Court pointing out that no prosecution could be instituted except by previous sanction of the Central Government in view of the provisions of section 7 of the Armed Forces (Special Powers) Act, 1958. The application was 10 dismissed by the Court of the Ld. CJM, against which the Army officers preferred a revision petition before the Court of Sessions at Srinagar, which was also dismissed. They approached the High Court under section 561-A of the Code, which affirmed the orders passed by the Courts below. Appeal was filed before the Supreme Court. In paragraph 82 the Supreme Court held that the question of sanction is of paramount importance for protecting a public servant, who had acted in good faith while performing his duties, so that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person and that it was obligatory on the part of the executive to protect him. The Supreme Court, however, held that there must be a discernible nexus between the alleged act which is complained of and the powers and duties of the public servant. Thus, it held that if the alleged act or omission of the public servant can be shown to have a reasonable relationship or is so intrinsically associated with the discharge of his official duty, then such a public servant becomes entitled for protection of sanction. In paragraph 83, the Supreme Court held that wherever the law requires a sanction to precede the taking of cognizance and where the Court proceeds against such a public servant without sanction, such a person has the right to raise the issue of jurisdiction and the entire action may be rendered void ab initio on account of the absence of sanction. However, the Supreme Court further held that sanction can also be obtained during the course of trial depending upon the facts of the individual case and particularly at what stage of proceeding, requirement of sanction and service. The 11 Supreme Court went to the extent of holding that the legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold it and the Court has no role. In paragraph 84 the Supreme Court held that the facts of the case pending adjudication before them i.e. the Pathribal case and the Cykoba case were squarely covered by the ratio of the judgments of the Supreme Court in Matajog Dobey Vs. H.C.Bhari, AIR 1956 SC 44 and Sankaran Moitra Vs. Sadhna Das and another (2006) 4 SCC 584 and held that the sanction of the Central Government was required in the facts and circumstances of this case and that the Court concerned lacked the jurisdiction to take cognizance till such sanction is granted by the Central Government.
14. The next case relied upon by the learned counsel for the petitioner is (2006) 1 SCC 557 Rakesh Kumar Mishra Vs. State of Bihar and others. In this case the Police Officers were being convicted for conducting a search without warrants. The Police is stated to have received information with regard to commission of dacoity in which the son of respondent no.2 in that case was being implicated. The Police, with a view to arrest the son is stated to have carried out a search motivated only with the intention of humiliating and harassing the son of respondent no.2 and without a search warrant had entered into the premises. The complaint was filed against the erring Police Officers by the respondent no.2 in that case before the Court of the JMFC, which took cognizance for offences punishable under sections 342, 389, 469, 471 and 120-B of the IPC. A petition was preferred by 12 the petitioner under section 482 Cr.P.C, which was dismissed by the High Court of Patna. Against the order of dismissal, the petitioner Rakesh Kumar Mishra approached the Supreme Court. The issue before the Supreme Court was whether there was any requirement of sanction under section 197 Cr.P.C before the learned Court below for taking cognizance. In paragraph 11 of the said judgment, the Supreme Court held that the expression "official duty" involves every act or omission which was done by a public servant in the course of his service and the same should have a nexus with the discharge of his duties. It further observed that the section does not extend its protective cover to every omission done by a public servant. In paragraph 12 the Supreme Court held that the scope under section 197 Cr.P.C was widened further by extending protection to such acts or omissions which are done in purported exercise of official duty i.e. under the colour of office. The Supreme Court held that that official duty would imply every act or omission done by a public servant in the course of his service where such act or omission was performed as part of duty which must be official in nature. It further held that the section has to be construed strictly. It further held in paragraph 12 itself that once any act or omission is revealed to have been committed by a public servant in the discharge of his official duty then the provision must be given a liberal and wide construction so far as its official nature is concerned. By way of illustration, the Supreme Court observed that a public servant is not entitled to indulge in criminal activities and to that extent the section has to be construed narrowly and in a restricted manner. But 13 where it is established that an act or omission was done by a public servant in the discharge of his duty then the scope of its being official should be construed so as to advance the object of the section in favour of the public servant else, the entire purpose of affording protection to public servant without sanction shall stand frustrated. The Supreme Court gave another illustration whereupon a Police Officer in discharge of his duty, is stated to have used force resulting in an offence but held that for the prosecution of which, sanction would be necessary. However, where the same officer commits an act in the course of his service which is not in line with the discharge of his duty and without any justification, then the bar under section 197 of the Cr.P.C would not apply. In paragraph 13 the Supreme Court held that where the facts of a particular case reveal that prima facie the act or omission which is attributable to the accused had a reasonable nexus with the discharge of his duties then it must be held to be official, calling for the applicability of section 197 of the Cr.P.C.
15. Thereafter the learned counsel has brought to the attention of this Court the judgment of the Supreme Court in (2012) 12 SCC 72 Omprakash and others Vs. State of Jharkhand. That was a case where the son of the appellant in Criminal Appeal No.1492/2012 before the Supreme Court died in a police encounter. The father of the deceased, one Kailash Pati Singh, filed a complaint in the Court of the Ld. CJM Jamshedpur being Complaint Case No.721/2004 against the petitioner Omprakash who was the appellant in Criminal Appeal No.1491/2012 before the Supreme Court and Rajiv 14 Ranjan Singh and another, who were absconding, in Criminal Appeal No.1492/2012 filed by the father of the deceased Kailash Pati Singh, before the Supreme Court. The father of the deceased had alleged in the said complaint that his son Amit Pratap Singh was killed in a fake encounter by Rajiv Ranjan Singh and the other co-accused persons. As per the version of the Police Officers they had received an SOS from one Jeevan Prasad, a dealer in scrap that on 1.7.2004 at 9.50 pm that some miscreants had come to his house riding on motorcycles armed with firearms and that they fired at his office and ran away. The said act was done to threaten the dealer to force him to yield to their extortion demand. It is the case of the police personnel that the Dy.SP. Rajeev Ranjan Singh after receiving the information set out to arrest the accused persons. They were tracked down and the police asked them to surrender. However, instead of surrendering the deceased and the other co-accused persons are fired at the Police who retaliated in self-defence in which four persons were killed and the rest escaped. The son of the complainant was one of those killed. In this case also, the Police Officers had moved a petition before the High Court for quashing proceedings against them. The High Court allowed the petition filed by the DySP Rajeev Ranjan Singh on the ground that sanction was required under section 197 Cr.P.C and as the same was not obtained, the case against him was not maintainable. As regards the other police personnel, the High Court dismissed their petition on the ground that there was no notification under section 197(3) of the Code produced by them to show that they were also protected against the 15 prosecution in respect of any offence alleged to have been committed while acting in discharge of their official duties. Those police personnel were at the level of constabulary. They were aggrieved by the order of the High Court dismissing their petition. Const. Omprakash filed an SLP before the Supreme Court. Aggrieved by the order of the High Court, the father of the deceased also preferred an SLP before the Supreme Court. The Supreme Court held in paragraph no.34, by referring to the judgment of a Constitution Bench of the Supreme Court in Matajog Dobey Vs. H.C.Bhari, AIR 1956 SC 44, where the Constitution Bench observed that no question of sanction can arise under section 197 Cr.P.C unless the act complained of is an offence. On the question as to whether the act would fall within the meaning of the above quoted expression, the constitution Bench concluded that there must be a reasonable nexus between the Act and the discharge of official duty and that the act must bear such relation with the duty that the accused could lay a reasonable but not pretended or fanciful claim that he did it in the course of performance of his duties. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged, the constitution bench referred to a judgment passed in Horiram Singh Vs.Emperor, AIR 1939 FC 43 and observed that at first sight it seems as though there is some support for the view in Horiram Singh's case, because it was observed that the prohibition is against the taking of cognizance itself, its applicability must be, in the first instance, at the earliest stage. However, the Supreme Court has also observed in the case of Omprakash (Supra) that the 16 constitution bench did not intend to lay down as a proposition that the applicability in section 197 Cr.P.C must be examined in earliest stage only. Thereafter, it construes a legal position settled by the constitution bench that the necessity for sanction has to be determined from stage to stage. Where at the outset the defence has established that the act purported to be done is in the execution of official duties, then cognizance ought not to be taken at all. Thereafter in paragraph no.41, the Supreme Court holds that the question of the necessity of sanction has to be decided from stage to stage and this question may arise at any stage of the proceedings. To quote the Supreme Court;
"In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record, which may establish at the outset that the Police Officer or Public servant was acting in performance of his official duty and is entitled to protection given under section 197 of Code. It is not possible for us to hold that in such a case the Court cannot look into any documents produced by the accused or the public servant concerned at the inception, the nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. At this point in order to exclude the possibility of any misunderstanding, we make 17 it clear that legal discussion on the requirement of sanction at the very threshold is based on the finding in the earlier part of the judgment that the present is not a case where the police may be held guilty of killing Munna Singh in cold blood in fake encounter."
16. Learned counsel for the respondent no.2 in order to support his contention that this is not a case where factual circumstance would reveal that the act alleged against the applicant was committed in discharge of his official duties has also relied on certain judgements.
17. The first judgment referred to by the learned counsel for the respondent no.2 is State of Maharashtra Vs. Devhari Deva Singh Pawar and others (2008) 2 SCC 540 . The facts in that case was that contaminated blood was alleged to have supplied to the Government Medical College and Hospital at Nagpur by blood bank where some patients who were given blood transfusion had tested positive for HIV. A first information report was lodged and police investigation led to further charges of a serious nature coming to light with regard to the entries in the registers maintained in the blood bank which showed evidence of the same having been tampered with and corrections made without any initials to certify those corrections and where some pages were missing from the donor register and some other pages were torn off from the issue register for dates. The respondents in that case had moved a petition under section 482 Cr.P.C before the High Court at Bombay at its Bench at Nagpur which was allowed 18 and the proceedings against the respondents quashed on the grounds of the absence of sanction under section 197 Cr.P.C. The respondent no.2 has referred to paragraph 13 of the judgment of the Supreme Court in which the Court has held that the provisions under section 197 of the Code has no application in regard to the respondents in so far as it related to the offences under the IPC. Setting aside the impugned order passed by the High Court of Bombay the Supreme Court on facts of that case as to how tampering with entries made in the official registers, tearing of pages from different official registers and stowing them away in one house can be related to the discharge of official duties and thereafter, the Honourable Supreme Court held that the allegation made against the accused persons in that case related to such acts which had no nexus or connection with the discharge of the official duties and, therefore, the prosecution on those allegations did not require a sanction under section 197 Cr.P.C.
18. The second judgment relied upon by the learned counsel for the respondent no.2 is Pradeep Rajoria Vs. Chandra Pratap Singh Kushwaha and others - 2007 (2) M.P.L.J. 419, whereby a co-ordinate Bench of this Court in a petition filed under section 482 Cr.P.C by the petitioner who was an officer in the Madhya Pradesh Police, lodged an FIR against the respondent no.1 for an offence under sections 323, 294 and 506-II and 341 IPC. During the course of investigation, the petitioner in that case is stated to have arrested the respondent no.1 and produced him before the Court of the Magistrate on the next date. Bail was granted to the 19 respondent no.1. Later on, after a lapse of a period of about two months, the respondent no.1 filed a private complaint before the Court of the learned Judicial Magistrate First Class alleging offences committed against him under sections 294, 323, 342, 355, 357, 458 and 506 IPC against the petitioner. After a preliminary enquiry a case was registered under sections 323, 294 and 506 (b) IPC against the petitioner, which was challenged before the High Court on the ground that as the petitioner had arrested the respondent in the discharge of his official duty, therefore, protection under section 197 Cr.P.C ought to have been accorded and no cognizance could have been taken by the learned Trial Court without the previous sanction of the State Government. The learned counsel for respondent no.2 has emphasized on this judgment and has submitted that like the present case against the petitioner herein, in Pradeep Vs. Chandra Pratap Singh (supra) also, the petitioner was a public servant against whom offences under sections 323, 294 and 506 IPC were registered by the learned trial court wherein he had taken the plea of the prosecution being faulty due to lack of sanction which was rejected by the learned trial court and which was affirmed by the court of sessions in revision. In paragraph 15 this court held, "therefore, looking to the above facts and even otherwise on considering the allegations against the petitioner, the complaint under which offence which was registered does not come within the expression acting or purporting to act in discharge of his official duties. Hence, this objection cannot be accepted." Thereafter, the petition was dismissed. 20
19. The third judgment relied upon by the learned counsel for respondent no.2 is (2008) 9 SCC 140 Bhuloram Vs. State of Punjab. In this case, a first information report was lodged against the appellant of that case for the commission of offences punishable under sections 409, 420, 467, 468 and 471 IPC. The allegation in the FIR was that the appellant working as a clerk in a Government High School had forged the signature of Sher Singh, who was the respondent no.2 before the Supreme Court, and the Head Master-cum-Drawing and Disbursing Officer had embezzled substantial amount of more than one lac rupees between 1979 and 1986. The fact came to light when the audit was carried out. In paragraph 61, the Supreme Court held that proceedings could not have been quashed on the ground of want of sanction in that case as it had held that the element of mens rea can only be decided at the time of trial and not at the stage of issuing summons. It further held that the necessity of sanction can be taken during the conduct of trial or at any stage of the proceedings. On the basis of this judgment, the learned counsel for respondent no.2 has submitted that here also the trial court is empowered at any stage of the trial to look into the question whether sanction under section 197 Cr.P.C. was essential?
20. This court is of the opinion that this petition deserves to succeed on the following grounds.
(a) The factual matrix of the case reveals that on the same date of the incident i.e. 23.10.2011 two complaints were made to two different police stations by the petitioner and the respondent no.2 respectively. On the basis of the complaint 21 filed by the petitioner before Police Station Dolariya, the FIR was registered against the respondent no.1 on 23.10.2011 itself whereas the prima facie facts go to reveal that though the respondent no.1 appears to have made his complaint to Police Station Seoni Malwa on 23.10.2011 itself, the FIR was registered only on 25.10.2011 by the police. The narrative of the prosecution's case against the petitioner of this case is that he tore away the royalty receipt and abused and threatened the respondent no.2. However, what is not disputed by both sides in their respective FIRs is that the petitioner was in the process of discharging his official duties as a Mining Inspector on 23.10.2011 and had stopped the truck carrying the granite chips/jelly in discharge of his official duty and had asked respondent no.2 to produce the royalty receipt which, according to the petitioner was not available with the respondent no.2 and that the respondent no.2 held out a threat stating that he would falsely implicate the petitioner in a case.
(b) Thereafter, the proceedings before the Collector, Hoshangabad, which were disposed of by order dated 7.6.2012 reveal that the respondent no.2, though noticed, did not appear before the Collector and in his absence the order was passed in favour of the State by which a fine of Rs.5000/- was imposed upon the respondent no.2.
(c) The respondent no.2 preferred an appeal before the Divisional Commissioner, Hoshangabad, against the order of the Collector dated 7.6.2012, which was also dismissed on account of non-appearance of the appellant/respondent no.2 herein on 4.4.2013, and 22
(d) No revision was preferred against the said appeal before the Board of Revenue. The learned counsel for the respondent no.2 in the course of his submissions has been silent on why the appeal filed by him was dismissed for non-prosecution. He has also not disputed the fact that no revision has been preferred against the order of the Divisional Commissioner, Hoshangabad, before the Board of Revenue. Under the circumstances, the order passed by the Collector on 7.6.2012 became final by acquiescence of the respondent no.2. Both those orders go to reveal that the genesis of the entire incident had taken place on account of the petitioner having acted in the discharge of his official duties
21. The credible test to be applied in assessing if an accused is eligible for the protection of a previous sanction u/s. 197 Cr.P.C, is to see if the act so alleged to constitute an offence, was an intrinsic and inseparable part of an overall act done in discharge of the official duty of an accused. Here, the argument put forward by Mr. Anil Khare, learned Senior Counsel for the petitioner that the court must see whether the accused could have been found prima facie guilty of dereliction of duty if he had not acted in the manner which is alleged to have constituted the offence against him, is another credible test to be applied in arriving at a finding whether an accused is eligible for protection of a previous sanction u/s. 197 Cr.P.C. In this case, this court is in agreement with the submission put forward by the learned counsel for the petitioner that had the petitioner not stopped the truck carrying the illegally quarried minor mineral, it would have resulted in a loss to the State 23 exchequer which would have been a dereliction of duty on the part of the petitioner. The official act of the petitioner and the offence complained of, is so inextricably interlinked making it apparent that the act of the petitioner, alleged to be an offence by the respondent no.2, was an act performed in discharge of his official duty. Therefore, as held by the Hon'ble Supreme Court in Om Prakash's case (supra), where the facts of the case go to reveal ex-facie, the requirement of a sanction under Section 197 Cr.P.C, the same ought to have been there along with the charge-sheet at the time of taking cognizance of the offence. The contention of the respondent no.2 is that the cases relied upon by the petitioner where judgments passed by the Supreme Court in the criminal appeals after the conclusion of trial is unsustainable. In all the three cases, the Supreme Court had intervened at the initial stages of the case itself and proceedings before the courts below were quashed on account of absence of sanction.
22. Judgment of the Supreme Court in Devahari's case relied upon by the learned counsel for the respondent no.2 clearly goes to show that the facts of that case disclosed that the acts alleged against the respondents in that case was definitely not in the discharge of their official duties. The acts alleged against the accused in that case was falsification of the official record, destruction of the official record and attempt to conceal the official record. As regard the judgment of this court in Pradeep Rajoria's case, the said judgment was passed earlier in point of time to the judgments of the Supreme Court referred herein above. Under the 24 circumstances, this court did not have an opportunity to examine the said judgments of the Supreme Court, which very categorically stated that if there is a reasonable nexus between the act alleged to have been an offence and the discharge of his official duty then, the requirement of sanction under section 197 Cr.P.C. can be taken into account at the earliest stage itself. The judgment of the Supreme Court in Bholuram's case, which has been referred to by the learned counsel for the respondent no.2, is actually a ratio on the ambit and scope of the trail court's power under section 319 of the Cr.P.C. In paragraph 61 of the judgment, the Supreme Court gives a passing reference with regard to the stage at which the requirement of sanction can be taken into account by the trial court. The same is an obiter. However, being an obiter of the Supreme Court, the same would be a binding precedent on this court in the absence of a judgement of the Supreme Court laying down the ratio, specific to the facts circumstances of the case at hand. However, in the light of the judgments of the Supreme Court in Rakesh Kumar Mishra's case, Omprakash's case and Army Headquarters Vs. CBI's case, which specifically lay down the ratio with regard to the requirement of sanction under section 197 Cr.P.C, this court is bound to follow the ratio laid down by the Supreme Court specifically with regard to section 197 Cr.P.C. in those judgments.
23. Under the circumstances, the petition is allowed and further proceedings against the petitioner in Criminal Case No.1003/2012 (State of M.P. Vs. Rajkumar) pending in the 25 Court of JMFC Hoshangabad stand quashed.
(ATUL SREEDHARAN) JUDGE ss/vt Digitally signed by SHYAMLEE SINGH SOLANKI Date: 2018.05.11 18:13:56 +05'30'