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Accused Narayan Diwakar Has Moved An ... vs Registrar Co-Operative Society Delhi ... on 8 February, 2010

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           IN THE COURT OF SH. RAJNISH BHATNAGAR
              SPECIAL JUDGE 01 CBI : ROHINI : DELHI


CBI No. 22/2008


C.B.I.

Vs.

Sri Chand Etc.                                     ........Accused
(Arvind CGHS)


ORDER

1. Accused Narayan Diwakar has moved an application U/s 197 Cr.P.C. claiming protection from prosecution and prays for discontinuing/dropping of proceedings. According to the applicant/accused he was discharging his duties as Registrar Co-operative Society Delhi from March 2000 till 30.06.2004. According to the applicant/accused he was discharging his duties in accordance with Delhi Co-operative Society Act 1972 which in itself is a complete code, so according to him he performed quasi judicial function under Contd....

the said Act.

2. According to the applicant/accused while functioning as R. C. S he was a public servant as defined U/s 21 of the Indian Penal Code. According to the applicant/accused while discharging his official function as Registrar Co-operative Society Delhi, he came to deal with an application for revival of one Arvind CGHS and before passing any order on the same he directed inspection/inquiry of the said Society from the Officers as contemplated in the DCS Act 1972. He was assisted by the staff of joint RCS, Assistant RCS and dealing clerk. According to the accused he was performing his duties and entitled for protection U/s 197 Cr.PC.

3. The CBI has contested the application by filing the reply. It is submitted in the reply that the sole aim of the accused is to delay the case. It is submitted that the list of members of Arvind CGHS was approved on the basis of various forged documents and the accused Narayan Diwakar conspired with other accused persons used his official Contd....

position as public servant and attempted to cause pecuniary benefits to the office bearers of the society. So the accused is not entitled to any protection.

4. Section 197 of the Code of Criminal Procedure is basically a provision which grants protection to the public servant to enable them to perform their official functions fearlessly but it is to be kept in mind that it is not meant for blanket protection to such persons making them immune from prosecution of criminal offences committed by them.

5. The object of section 197 of the Code is not to put a wall around public servants so as to protect them from prosecution for criminal offences committed by them. The protection given to public servants is to enable them to perform their duties fearlessly by protecting them from fictitious, malafide or false prosecution for acts done in performance of their duties. Before this section may be invoked, following conditions must be satisfied :- (1) the person accused of an offence is or was a public servant, (2) Contd....

the person accused of an offence must be a person removable from his office only with sanction of the State Government or of the Central Government, according to where the person is employed, in connection with affairs of the State or of the Central Government. (3) the person must be accused of an offence alleged to have been committed by him, while acting or purporting to act in discharge of his official duties and (4) the person accused of an offence is or was employed, at the time of commission of alleged offence, in connection with affairs of the Union or the State as the case may be.

6. For Section 197 to apply the act complained of against the public servant must be an offence and there must be a reasonable connection between the act complained of and the duty of the officer as a public servant, so that, if questioned, the officer may reasonably profess to have done that act in exercise of or purported exercise of his official duty and the connection between the Contd....

act and the official duty should be a reasonable one and not merely a fanciful one. The official position should not have been used as mere cloak to defend the act complained of.

7. It is, thus, not every offence committed by a public servant which requires sanction for his prosecution, nor even every act done by him while he is actually engaged in the performance of his official duties. It is only when the act complained of is directly concerned with his official duty, so that, if questioned, it would be claimed to have been done by virtue of the office; that the sanction would be necessary, and in that case, it would be so irrespective of whether it was, infact, a proper discharge of the duties because that would really be a matter of defence on the merits, which will have to be investigated at the time of trial and cannot arise at the stage of the grant of sanction, which must precede the institution of the prosecution.

8. In Syed Jaferullah Jeferi (1969 (2) APLJ 206) the different decisions delivered by the Federal Court, the Contd....

Supreme Court and various High Courts were summed up by Hon'ble Mr. Justice Chinnappa Reddy, and he demarcated the difference between the acts which will fall within the ambit of protection available under the section and the acts which will go outside the purview of protection. He illustrated thus:

"The delivery of an alleged dishonest judgment by a judge, the making of alleged false entries in accounts by an accountant are instances of first category of cases (where the act complained of is the very act which he is expected or authorized to do under the statute or the law but which become reprehensible because it is alleged to be done fraudulently or dishonestly) because the writing of a judgment in itself is the official duty of a judge and the writing of accounts is the official duty of an accountant. The use of reasonable force by a police officer effecting an arrest, the removal of an obstruction to a lawful search etc., are the illustrations of second category of acts (where Contd....

the act complained of though not itself, sanctioned by the statute or enjoined by his official duty, is however, so intimately and integrally connected with his official or statutory duty that it can be said to have been done in furtherance of the duty prescribed by statute or for achieving the object enjoined by his duty) because the use of reasonable force is reasonably connected with the effecting of an arrest and the removal of an obstruction with the lawful search."

9. The Supreme Court in Mata Jag Dobey (AIR 1956 S.C. 44) has laid down the test to find out as to whether an officer who is being prosecuted was discharging his official duty or the act was done or purported to have been done in the discharge of his official duty, to the following effect;-

10. "There must be a reasonable connection between the act and discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable but nor a pretended or fanciful claim, that he did Contd....

it in the course of performance of his duty.".

11. In N. Venugopal ( AIR 1964 S.C. 33), the Supreme Court while dealing with the case under section 53 Madras District Police Act, 1859, wherein the following observations were made relating to the fact as to whether the act of torture would come within the purview of discharge of official duty of a police officer;

".....torture by police during investigation of person suspected of crime does not amount to an act done or intended to be done in discharge of his official duty."

12. Again in Narhar Rao (AIR 1966 S.C. 1783) the Apex Court categorically laid down that the test to determine as to whether a particular act complained of was done under the colour of office or in excess of the duty, is to see that reasonable connection between the act complained of and the powers and the duties of the office exists. The act cannot be said to have been done under the colour of office because the point of time at which it is done coincides with Contd....

the point of time the accused officer is invested with powers or duties of his office.

13. One of the important decision of the Supreme Court is in S.B. Saha (AIR 1979 S.C. 1841), wherein after having referred to the several earlier decisions, the Court laid down thus:-

"The question of sanction under section 197 can be raised and considered at any stage of the proceedings. In consideration of the question whether or not sanction for prosecution was required, it is not necessary for this Court to confine itself to the allegations in the complaint. It can take into account all the materials on the record at the time when the question is raised and falls for consideration. The sine qua non for the the applicability of section 197 is that the offence charged, be it one of the commission or omission, must be one which has been committed by the public servant either in his official capacity or under the colour of office held by him"

Contd....

In Balbir Singh (AIR 1986 S.C. 345 ) the Supreme Court reiterated the principle referred above.

14. In Bakshish Singh's case, AIR 1983, S.C. 257, it was observed by the Apex Court that the Court has to make a balance between the protection granted to the public servant and the safeguard available to the citizens against the excess of public servants. Further more in the matter of protection for the offence of conspiracy, forgery, cheating and bribery, no sanction U/s 197 of the Code is required, since the Apex Court has ruled that it is not the part of the duty of the public servant while discharging his duty, to enter into a criminal conspiracy or indulge in criminal mis-conduct or to commit offence of forgery, cheating and bribery.

15. In Pitman Singh (1987 Cr.L.J. 872) wherein a scooterist, who was driving without a helmet in contravention of the provisions of the Motor Vehicle Act and the rules framed thereunder, was stopped by the police Contd....

official in uniform on traffic duty. A challan was prepared against the scooterist. But after preparing the challan, the police official refused to let the scooterist to go and detained him for the purpose of recovering the composition money. It was alleged in the complaint that the scooterist was manhandled and insulted by the said police official. It was held by Hon'ble High Court of Delhi, that the police officers were doing the acts, as aforesaid, while discharging their official duties and there was a reasonable connection between the alleged acts and discharge of their official duties. The prosecution failed for want of necessary sanction as required under section 197 of the Code.

16. In S. P. Vaithiavathan (1994)(II) CCR 413(S.C.), the Apex Court was dealing with the case of police officers, who summoned the appellant at the police station by serving a requisition under section 160 of the Code. The appellant was given merciless beatings since he had complained against them for accepting illegal gratification. Construing Contd....

the phrase "acting or purporting to act in the discharge of his official duties", it was held thus:

"It was no part of the duty under the Act, Code or any other law for the time being in force conferring power on the police to beat and torture the appellant when he presented himself before the respondents in response to the summons. By no stretch of reasoning can it be said the respondent's action of torturing the appellant was in discharge of any duty or functions under the Act or any other law."

17. In B. Plurchiba Ao (1992 Cr.L.J. 1420), the Gauhati High Court, ruled, "one of the well recognized test to find out whether an offence was committed by the public servant while acting or purporting to act in his official duty is to ascertain whether there is something in the nature of "the act" complained against that attaches it to the official character of the person it to the official character of the person doing it. The crucial question is whether the acts Contd....

constituting the offence was committed by the accused, "in his capacity as a public servant." One should examine "the acts or omissions" more than "the duty". If the acts were done or permitted to be done or omitted to be done "in his capacity as public servant", sanction under section 197 is necessary. In fact, the true test is that the offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duty. As observed by the Supreme Court in Matajog Dobey (AIR 1956 S.C. 44), no question of sanction could arise under section 197 unless the act complained of is an offence, the only point to determine is whether it was committed in discharge of official duty. There must be a reasonable connection between the act and the official duty. What the Court must find out is whether the act and the official duty are so inter-related that one should postulate reasonably that it was done by the accused in performance of official duty.

Contd....

18. In Gauri Shankar Prasad (2000 AIR S.C.W. 3135), Apex Court observed as follows:

"It is manifested that appellant was present at the place of occurrence in his official capacity as Sub- Divisional Magistrate for the purpose of removal of encroachment from the government land and in exercise of his such duty, he is alleged to have committed the acts which form the gravamen of allegations contained in the complaint lodged by the respondent. In such a situation, it cannot but be held that acts complained of by the respondent against the appellant have reasonable nexus with official duty of the appellant. It follows therefore that appellant is entitle to immunity from criminal proceedings without sanction provided under section 197 of the Code. Same proposition was reiterated by the Apex Court in Abdul Wahab Ansari (AIR 2000 S.C. 3187).

In P.K. Pradhan ( (2001) 6 S.C.C. 704), it was Contd....

concluded that offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a Court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation. The Contd....

official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no prosecution fails, or the defence establishes that the act purported to be done as in discharge of duty, the proceedings will have to be dropped.

19. In Rakesh Kumar Mishra (AIR 2006 S.C. 820), the Apex Court quoted the proposition of law laid in Bakshi Singh (supra) and ruled, "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, Contd....

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 reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection"........ "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."........ "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." Such protection is available when a public servant acted in excess of his duty, but there is reasonable Contd....

connection between the act and the performance of official duty, ruled the Apex Court in S. K. Zutshi (2004 (8) S.C.C.

31).

20. The Apex Court considered catena of decisions laid on the point in Romesh Lal Jain (2006 (2) S.C.C. (Cri) 593) held that "upshot of the aforementioned discussions is that whereas an order of sanction in terms of section 197 Cr. P.C. is required to be obtained when the offence complained of against the public servant is attributable to the discharge of his public duty or has a direct nexus therewith, but the same would not be necessary when the offence complained of has nothing to do with the same."

21. In Prakash Singh Badal (2006) 13 Scale 54 S.C.), the Apex Court ruled that once it is established that act or omission was done by the public servant, while discharging his duty, then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of Contd....

affording protection to a public servant without sanction shall stand frustrated.

22. In Padmanabhan Nair (1995 (5) S.C.C. 690), the Apex Court ruled that it is no part of the duty of public servant, while discharging his official duties to commit forgery of the type covered by the offences punishable under section 467, 468 and 471 of the penal Code, want of sanction under section 197 of the Code, is therefore, no bar to prosecution. In M. Bhagwan Pillai ( (2004) 13 S.C.C. 217), the Apex Court has held relying the precedent in M.P. Gupta ( (2004) (2) S.C.S. 349) that sanction under section 197 of the Code is not a condition precedent for offence under section 409 of the Penal Code.

23. In R. Bala Krishnan Pillai (AIR 1996 S.C. 901), the Apex court ruled that for an offence of criminal conspiracy committed by a public servant, sanction as contemplated by provisions of section 197 of the Code is required. But In V. Padmanabhan Nair (JT 1999 (4) S.C. 499), the Apex Court Contd....

ruled, "no sanction for prosecution is necessary, even if offences are punishable under section 409 and 120 B of the Penal Code, and that accused facing prosecution for offence under Prevention of Corruption cannot claim immunity on the ground of want of sanction, if he ceased to be a public servant on the date, when Court took cognizance of the said offence.

24. In Ronald Woo Mathemas (AIR 1954 S.C. 455), the Apex Court had an occasion to deal with the proposition as to whether proceedings would be bad for want of sanction under section 197 of the Code, which was instituted on the charges of the conspiracy and on bribery. Relying precedents in HHB Gill (Air 1948 P.C. 128) and Phenander Chandra Neogi (AIR 1949 P.C. 117), it was ruled that no sanction was needed for institution of proceedings on the charges of conspiracy and bribery. In Shreekantiah Ramayya Munipalli and another (AIR 1955 S.C. 287) and Amrik Singh (AIR 1955 S.C. 309), it was ruled that it is not Contd....

every offence committed by a public servant, which requires sanction for prosecution under section 197 of the Code, nor even every act done, while he is actually engaged in performance of his official duty. Same proposition was reiterated in Hari Har Prasad ( (1972) 3 SCC 89), wherein it was ruled that as far as offence of criminal conspiracy punishable under section 120 B read with section 409 IPC is concerned and also section 5(2) of the Prevention of Corruption Act, 1947 are concerned, they cannot be said to be of the nature mentioned in section 197 of the Code of Criminal Procedure.

25. In Raghunath Anant (2008 Cr. L.J. 2054), the Apex Court concluded that it is no part of duty of a public servant while discharging his official duty to enter into a criminal conspiracy or indulge in criminal misconduct, application of sanction under section 197 of the Code of Criminal Procedure is, therefore, no bar for his prosecution.

26. It emerges that there must be some reasonable Contd....

connection between acts and the official duty, even though the acts may be in excess of the official duty. If section is construed narrowly, it may never apply to any case as it is not part of official duty of a public servant to commit an offence. But it is not the duty which Court has to examine, so much as the act, because official act can be performed in the discharge of official duty as well as in dereliction thereof.

27. For offences of conspiracy and criminal mis- conduct, such as, cheating, forgery and bribery, no sanction is needed. It would be incumbent upon the public servant, claiming protection under section 197 of the Code, to show that act so committed was sanctioned by law and thereafter in performance of his duties, he exceeded it or derelicted it. In case act is not sanctioned by law, when public servant acted upon it no sanction under section 197 of the Code is needed, since it was his official position which gave him an opportunity to commit that offence.

Contd....

28. Relying above propositions, it is concluded that to invoke protection under section 197 of the Code, the accused has to show that his act was sanctioned by law when he started an act in discharge of his official duties, which culminated into an offence.

29. The allegations against accused Narayan Diwakar, the then Registrar Co-operative Society are that he, and other accused persons, entered into a criminal conspiracy and in pursuance thereof cheated the RCS office by forging documents and thereby fraudulently approved the bogus list of members of the Arvind CGHS Ltd. even without ensuring that the liquidated society was required to be revived before the approval of the list of members of the society and thus the process of revival of the society was bypassed intentionally which was the outcome of a criminal conspiracy hatched between accused Narayan Diwakar and other accused persons.

30. It is alleged that one Sh. M.L. Sharma, claiming Contd....

himself to be Secretary of the Arvind Co-operative Group Housing Society submitted an application on 16-12-2002 to the office of RCS, Delhi for audit of the said society for the period from 01-07-1973 to 31-03-2002. Shri Prasad Kumar P, dealing Assistant, without making any verification of the society and its members, submitted one false report mentioning about the status of the society but concealed the material fact that the society was liquidated on 16-09-1979 under the orders of Shri Ashok Bakshi, the then Deputy Registrar. Investigation has revealed that Shri J.S. Sharma, the then Asstt. Registrar, RCS office and Shri Rakesh Bhatnagar, the then Joint Registrar, South and Shri N. Diwakar, the then RCS connived and acted on false report submitted by Shri Prasad Kumar P and approved the list of the members of the society. The Society was found non- existent at the given address. Shri M.L. Sharma claiming himself to be Secretary of the society was also found non- existent.

Contd....

31. It is further alleged that Shri Ashok Bakshi, the then Dy. Registrar was delegated with the powers of the Registrar vide notification No. 9 (38)/68-Coop/8636-42 dated 18-10- 1977 issued by the Special Secretary (Coop.), Delhi Admn for the liquidation of the society. It clearly goes to show that Sh. N. Diwakar was bent upon to approve the bogus list of members of Arvind CGHS Ltd in criminal conspiracy with other accused persons. Investigation has revealed that the list of members of Arvind CGHS Ltd. Was approved on the basis of various forged documents. Narayan Diwakar not only conspired with other accused persons but has also abused his position as public servant and attempted to cause pecuniary benefit to the accused office bearers of the society.

32. So the circumstances suggest that a conspiracy was hatched between accused Narayan Diwakar and other accused persons in-consequence of which bogus list of members of Arvind CGHS Ltd. was approved without Contd....

ensuring that the liquidated society was required to be revived before the approval of the list of members of the society and the process of the revival of the society was passed intentionally by the applicant / accused in conspiracy with other accused persons though the society had never requested for its revival and no application was ever submitted by the society for its revival.

33. The circumstances enumerated herein above are suggestive of the facts that actions of accused Narayan Diwakar were actuated with conspiracy and in such a situation he is not entitled for any protection as contemplated by provisions of section 197 Cr.P.C. It was his office which facilitated him in commission of crime and it cannot be said that he performed his functions in discharge of his duties. The application is, therefore, dismissed.

34. As far as the assessment of facts meticulously are concerned, this is not the stage and in case accused succeed, after the trial of the case, he may raise issue of Contd....

protection U/s 197 Cr.P.C at that juncture. (Announced in the open Court on 08-02-2010. ) RAJNISH BHATNAGAR SPECIAL JUDGE 01 CBI ROHINI COURTS : DELHI 08-02-2010 Contd....