Patna High Court
Narmadeshwar Sharma And Anr. vs Sarju Chandra Poddar on 9 August, 1973
Equivalent citations: 1974CRILJ959
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
ORDER Nagendra Prasad Singh, J.
1. This is an application on behalf of the two petitioners for Quashing an order, dated the 25th April. 1972, passed by the sub-divisional Magistrate, Hazaribagh taking cognizance under Sections 500 323 and 342 of the Indian Penal Code against them.
2. At the relevant time petitioner No. 1 was a Sub-Inspector and petitioner No. 2 an Assistant .Sub-Inspector of police posted at Bishungarh police station in the district of Hazaribagh, and the complain- ant-opposite party was a Development Officer of the Life Insurance Corporation of India at Gomia in the district of Hazaribagh. On the 1st April, 1972. the opposite party filed a petition of complaint before the Sub-divisional Magistrate. Hazaribagh, alleging, inter alia that on the 30th March. 1972 he was going from Gomia to Hazaribaigh on a scooter at about 8.30 a. m. When the scooter reached Bishiinrarh More it was stopped at the signal of a police constable petitioner No. 1 demanded tax token owner's book etc from the complainant. The complainant wanted 3-4 days time to produce the same but the petitioners insisted on their immediate production. The complainant pointed out to the petitioners that under the Motor Vehicles Act, he was at liberty to produce the relevant papers within a reasonable time. On hearing this petitioner No. 1 got very much annoyed and said "SALA MADARCHOD KANUN SHIKHATA HAI GAND MEN BANS DHAS DENGE". Petitioner No. 2 also said "HARAMJADA KAGAJ DIKHAO NAHI TO MAR JUTE KE THIK KAR DENGE". According to the complaint the complainant was taken aback and protested at the behaviour of and expressions used by the petitioners Petitioner No. 2. thereafter gave two "blows to the complainant saving "SALE AGAR JALD JANA CHAHTE HO TO EK SAWTAKI NIKALO. DO AUR JAO AUR NAHI TO EK INCH GHASKANE NAHI 'DENGE", and ordered two constables to confine the complainant and not allow him to move in any direction. Shree S.N. Verma. Branch Manager of the Life Insurance Corporation at Hazaribagh was informed, who approached the Superintendent of Police. Hazaribagh and narrated to him the incident. The Superintendent directed the petitioners to release the vehicle on "P. R. BOND" at once. There were several persons known to the com-plainant present at the scene of occurrence and they also saw the aforesaid acts of the petitioners. According to the complainant the petitioners, by their aforesaid acts, defamed him and damaged his re-putation.
3. The complainant was examined on solemn affirmation and he supported the statements made in the petition of complaint. The learned Sub-divisional Magistrate, however, referred the matter for inquiry to Shree M. Ram. a Firsft Class Magistrate of Hazaribagh who submitted his report dated the 24th April, 1972 saying that, prima facie, a case under Sections 500, 323 and 342 of the Indian Penal Code had been made out against the petitioners. On receipt of the said report, the learned Sub-divisional Magistrate passed the impugned order and transferred "the case to Shree L. Narain. Munsif Magistrate. First Class for disposal.
4. Mr. Prem Shanker Daval learned Counsel appearing for the petitioners has urged three points in support of the application. Firstly, he has submitted that the petitioners were public servants and, in absence of sanction under Section 197 of the Code of Criminal Procedure, they could not be prosecuted for the charges levelled against them and as there was no sanction in the present case, the learned Sub-divisional Magistrate had no jurisdiction to take cognizance of the offences complained of His second contention is that the learned Sub-divisional Magistrate had no jurisdiction to take cognizance under Section 500 of the Indian Penal Code in view of the provisions of Section 198B of the Code of Criminal Procedure (hereinafter referred to as the "Code"), which prescribes the procedure for prosecution for defamation against public servants. According to learned Counsel for the petitioners the complainant, who is a Development Officer of the Life Insurance Corporation is a 'public servant' and as such the complaint in writing should have been made by the public prosecutor with the previous sanction of the Government concerned. Thirdly, learned Counsel has urged that on the allegations made in the complaint petition taken as a whole no offence under Section 500 or 323 or 342 of the Indian Penal Code was made out and as such the Sub-divisional Magistrate should not have summoned the petitioners.
5. So far as the first point is concerned, a reference may be made to Section 197 (1) of the Code which reads as follows.
197 (1) When any person who is a Judge within the meaning of Section 19 of the Indian Penal Code or when any Magistrate or when any public servant who is not removable from his office save by or with the sanction of a State Government or the Central 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 employed in connection with the affairs of the Union of the Central Government; and
(b) in the case of a person employed in connection with the affairs of a State of the State Government.
Section 197 (1) thus lays down two conditions under which the sanction is required before taking cognizance. Firstly whether the public servant concerned "is not removable from his office, save by or with the sanction of a State Government", and secondly whether the offence alleged was committed by him "while acting or purporting to act in the discharge of his official duty". The petitioners had, therefore, to satisfy the Court that they belong to the category of such public servants who are not removable from their office save by or with the sanction of the State Government, During the course of arguments learned Counsel for the petitioners conceded that petitioner No. 1 being a Sub-Inspector and petitioner No. 2 being an Assistant Sub-Inspector of Police they were removable by the Inspector-General of Police as he is the appointing authority and for them the State Government is not the appointing authority or the authority which could remove them from service.
6. This point came up for consideration before the Supreme Court from the State of Mysore in Nagraj v. State of Mysore and their Lordships held that Section 197 was not applicable because a Sub-Inspector, who is a police officer below the grade of an Assistant Superintendent, is removable by the Inspector-General of Police, and no sanction of the State Government for his prosecution was required, while he committed an offence acting or purporting to act in discharge of his official duty. The next question is whether, on the facts and in the circumstances of the present case, it can be said that the alleged offences had been committed by the petitioners in the discharge of their official duty. In view of the fact that Section 197 of the Code is not applicable this question is not of much importance. But I must say that prima facie, looking at the petition of complaint, which is the basis for the prosecution of these petitioners, it cannot be said that there was a reasonable nexus between the offences alleged and the duties enjoined upon the petitioners. If the allegations in the petition of complaint are taken on their face value no police officer was supposed to use such language in public and to demand bribe for allowing the complainant to get release of his vehicle. Whether the allegations are correct or not is a matter to be decided by the trial Court. But for the purpose of sanction at present only the allegations in the petition of complaint have to be looked into.
7. The object of sanction is to afford protection to the public servants against frivolous vexatious or false prosecution for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duties. But one must also guard against too wide a construction because. in our constitutional set up the idea of legal equality and administration by one law has been pushed to its utmost limits. As such a line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties. This aspect of the matter has been settled by several decisions of the Supreme Court and one of the latest pronouncements has been reported in Bhagwan Prasad Srivastaba v. N.P. Mishra 1972 Pat LJR 449 : 1970 Cri LJ 1401 (SC). In my opinion on the allegations made in the petition of complaint, it cannot be said that the petitioners had committed the offences alleged in discharge of their official duties.
8. The second point urged by Mr. Dayal is that the complainant being an employee of the Life Insurance Corporation is a public servant within the meaning of the definition given under the Indian Penal Code and under Section 198B of the Code it was only the Public Prosecutor who with prior sanction of the State Government could have filed the petition of complaint for prosecution of the petitioners for defamation. Section 198B reads thus:
198B (1). Notwithstanding anything contained in this Code. When any offence falling under Chapter XXI of the Indian Penal Code is alleged to have been committed against the President or the Vice-President or the Governor or Rajpramukh of a State or a Minister or any other public servant employed in connection with the affairs of the Union or of a State, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence without the accused being committed to it for trial upon a complaint in writing made by the Public Prosecutor.
(2) Every such complaint shall set forth the facts which constitute the offence alleged the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.
(3) No complaint under Sub-section (1) shall be made by the public prosecutor except with the previous sanction.--
(a) in the case of the President .or the Vice-President or the Governor of a State, of any Secretary to the Government authorised by him in this behalf.
(b) in the case of a Minister of the Central Government or of a State Government of the Secretary to the Council of Ministers, if any or of any Secretary to the Government authorised in this behalf by the Government concerned:
(c) in the case of any other public servant employed in connection with the affairs of the Union or of a State of the Government concerned.
* * * *
9. Section 21 of the Indian Penal Code defines 'public servant' in these words:
21. The words 'public servant' denote as person falling under any of the descriptions hereinafter following namely;--
* * * * Twelfth -- Every person--
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government.
(b) 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.
10. Section 198B of the Code is a special provision under which cognizance can be taken by the Court of Sessions itself in connection with persons specified in that section. It. however does not bar a public servant from filing a complaint directly before the competent Court being a person aggrieved within the meaning of Section 198 of the Code, Moreover, so far as the complainant is concerned he may be a public servant within the meaning of Section 21 (Twelfth) of the Indian Penal Code, being in the service of a corporation established under a Central Act, namely the Life Insurance Corporation of India established under the Life Insurance Corporation Act. 1956. But Section 198B of the Code is not available to every public servant. It further says that a Court of Session may take cognizance of any offence falling under Chapter XXI of the Indian Penal Code alleged to have been committed against "... any other public servant employed in connection with the affairs of the Union or of a State, " The Life Insurance Corporation is a corporate body established under an Act of Parliament and there is no question of the complainant being employed in connection with the affairs of a State. In that view of the matter it cannot be said that the provisions of Section 198B of the Code are in any way a bar to the launching of the prosecution against the petitioners.
11. The last point urged by the learned Counsel was that no case under Section 500 or 323 or 342 of the Indian Penal Code had been made out. It was submitted that the Sub-divisional Magistrate should not have taken cognizance under Section 342 as there may be a reasonable nexus between the offence committed and the official duties enjoined upon the petitioners to keep the complainant in confinement, because no tax token etc. were produced by him. It is well settled that cognizance is taken of a case, and not of an individual offence, and it is premature for this Court to enter into the question as to the offences under which sections had been made out on the allegations made in the petition of complaint. If the petition of complaint discloses that some offence had been committed then it is for the trial Court to frame appropriate charges and to put the accused on trial for those offences. A proceeding initiated on a petition of complaint can be quashed when the complaint petition taken as a whole does not disclose any offence, as was held in R. P. Kapur v. State of Punjab AIR 1960 SC 8661 : 1960 Cri LJ 1239. At this stage it cannot be said that the petition of complaint in the instant case does not disclose any offence.
12. In may opinion, no case for interference by this Court has been made out by the petitioners. In the result the revision application is dismissed.