Allahabad High Court
Ayush Kumar And Others vs State Of U.P. And Another on 10 April, 2019
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement reserved on 10.01.2019 Judgement delivered on 10.04.2019 Court No.70 Case :- APPLICATION U/S 482 No. - 17421 of 2011 Applicant :- Ayush Kumar And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- H.P. Dube,Amrit Lal Yadav,Baleshwar Chaturvedi,Nazrul Islam Jafri,Sushil Kumar Srivastava Counsel for Opposite Party :- Govt.Advocate,Abhishek Kumar Yadav,Bhola Nath Yadav,Dr. Om Prakash Yadav,In Person,Kamal Singh,Siya Ram Yadav Hon'ble Sanjay Kumar Singh,J.
1. Heard Sri D.P.Dhakarey and Sri Baleshwar Chaturvedi, learned counsel for the applicants, Sri Rakesh Doneria (Opposite Party no.2), who appeared in person and learned Additional Government Advocate for the State/opposite party no.1 and perused the record.
2. The applicants invoking inherent jurisdiction under Section 482 Cr.P.C. have filed this application with a prayer to quash the prosecution of the applicants as well as summoning order dated 30.04.2011 passed by Additional Chief Judicial Magistrate, Court No.12, Agra against them in Criminal Case No.2572 of 2010 (State vs. Iyush Kumar and others) arising out of Case Crime No.418 of 2010, under Sections 467, 471, 120-B, 192 I.P.C., Police Station Etmuddula, District Agra.
3. Issues involve in the instant case for consideration before this Court are as follows:-
(a) Whether act done by the applicants in the present case was in official capacity in discharge of their official duty?
(b) Whether applicants, who are public servant are protected under the provision of 168 of the Electricity Act?
(c) Whether prior sanction under Section 197 Cr.P.C. is necessary in the present case before prosecuting the applicants?
(d) Whether charge-sheet could be submitted in this case against the applicants without prior sanction under Section 197 Cr.P.C.?
(e) Whether Magistrate concerned has committed legal error in taking cognizance and summoning the applicants to face trial in absence of prior sanction under Section 197 Cr.P.C.?
4. This case has checkered history of litigations between the Electricity Department and opposite party no.2. Filtering out unnecessary details, the basic facts of the case in brief, which are relevant with regard to relief claimed by the applicants by means of the present application are being mentioned hereinafter.
5. At the relevant point of time as well as at the time of passing the impugned summoning order dated 30.04.2011, the applicant no.1 was posted as Executive Engineer, Electricity Urban Distribution Division-III, Yamuna Bank Power House, Agra. The applicant no.2 was posted as Executive Engineer (Allahabad) Office of the Chief Engineer, Ghaziabad Zone, Ghaziabad. The applicant No.3 was posted as Office Assistant-II, Electricity Urban Distribution-III, Yamuna Bank Power House, Agra. The applicant No.4 was posted as Office Assistant-III, Electricity Civil Transmission Division, 400 K.V., Sub-Division, Pili Pokhar, Agra. The opposite party no.2 was consumer of Electricity Department and at the relevant point of time was running a small scale industry engaged in manufacture of agricultural machinery, thrashers, trailer, trolly etc.
6. The applicants through the present application have come up with the case that the opposite party No. 2 was a small consumer having electricity connection of 28 KVA in the year 1980, which was subsequently enhanced and the contracted load of the opposite party No. 2 extended 331 KVA on 31.03.1994.
7. While issuing the Sealing Certificate No. 969 dated 11.07.1994, the C.T. ratio of the metering cubical was incorrectly mentioned as 20/5, whereas the correct C.T. ratio was 30/5. Since the incorrect C.T. ratio was mentioned in the Sealing Certificate, therefore, the correct multiplier could not be applied while generating the bills and consequently 1/3 quantum of electrical energy consumed by the opposite party No. 2 remained unbilled.
8. The metering cubical of opposite party No. 2 was thoroughly checked up on 03.07.1996 and checking was carried out by the Officers of U.P. Power Corporation Limited in presence of the opposite party No. 2 Sri Rakesh Doneria and during the course of checking incorrect mentioning of C.T. ratio in the earlier Sealing Certificate was found out and a fresh Sealing Certificate was prepared on 03.07.1996 mentioning the correct C.T. ratio as 30/5, which was duly signed and received by the opposite party No. 2 Sri Rakesh Doneria.
9. Although the checking was carried out in presence of the opposite party No. 2 Sri Rakesh Doneria but he did not dispute at the time of checking regarding the accuracy of C.T. ratio having been found out as 30/5. Subsequently he represented to the Superintending Engineer for re-checking of the metering cubical and re-inspection was carried out on 17.08.1996 as per order of the Superintending Engineer and this checking was also carried out in presence of opposite party No. 2 Sri Rakesh Doneria. During the course of checking, the C.T. ratio of metering cubical of the opposite party No. 2 was again found as 30/5 and accordingly a Sealing Certificate was issued, which was signed and received by the opposite party No. 2 Sri Rakesh Doneria.
10. On the basis of the aforesaid checking, it was found that 1/3 quantum of the electrical energy consumed by the opposite party No. 2 could not be billed on account of the incorrect mentioning of C.T. ratio and therefore, a Supplementary Bill dated 25.08.1996 was issued to the opposite party No. 2 directing him to deposit for a sum of Rs. 12,59,895.84. In view of above, first set of litigation started between the parties concerned.
11. The opposite party No. 2 instead of making payment of the supplementary bill dated 25.08.1996, preferred a Civil Suit being OS. NO. 589 of 1996 in the Court of Civil Judge, Senior Division, Agra against the aforesaid supplementary bill dated 25.08.1996 and obtain ex-party order of injunction on 07.01.1997.
12. Against the said injunction order dated 07.01.1997, a First Appeal From Order No. 191 of 1997 was filed by the corporation before this court, in which interim order dated 14.03.1997 was passed staying the recovery pursuant to supplementary bill dated 25.08.1996 provided the opposite party No. 2 deposits 50% of the bill amount and furnishes the adequate security for the balance amount to the satisfaction of the trial court. The opposite party No. 2 did not comply the above order dated 14.03.1997 passed by this court. After exchange of pleadings, this court by order dated 22.07.1997 granted complete stay on the order dated 07.01.1997.
13. During pendency of Civil Suit No. 589 of 1996 as well as F.A.F.O. No. 191 of 1997 before this court, the opposite party No. 2 submitted an application/ letter to the Electrical Inspector U.P. Lucknow under Section 26(6) of the Indian Electricity Act, 1910 for checking of the metering cubical including the C.T. Ratio.
14. The opposite party No. 2 also filed an appeal under the Regulation 23(2) of the Electricity Supply Consumer Regulations 1984 before the Appellate Authority against the supplementary bill dated 25.08.1996.
15. On 13.07.1998, Suit No. 589 of 1996 of the opposite party No. 2 was dismissed as withdrawn by the Civil Court by an order dated 13.07.1998 without giving liberty to file a fresh suit.
16. The departmental appeal filed by the opposite party No. 2 against the supplementary bill dated 25.08.1996 came to be dismissed by the Appellate Authority vide order dated 28.09.1998 and became final, as the order dated 28.09.1998 was not further challenged by the opposite party No. 2.
17. It is submitted that little earlier to the withdrawal of the earlier Suit No. 589 of 1996, the opposite party No. 2 had filed another suit being O.S. NO. 429 of 1998 seeking permanent injunction on the same set of facts and for substantively same reliefs, in which order to maintain the status quo was passed as a result thereof amount of supplementary bill dated 25.08.1996 could not be realized from the opposite party No. 2.
18. During the pendency of the aforesaid proceedings, the Chief Electrical Inspector passed an order dated 26.04.1999 in favour of the opposite party No. 2 declaring correct multiplying factor as 400 and 4 and supplementary bill dated 25.8.1996 was held to be incorrect and cancelled. Against the above order dated 26.4.1999, the Electricity Department filed an appeal before the State Government, which was dismissed by order dated 4.4.2000.
19. A review petition was filed by the Electricity Department for review of order dated 04.04.2000, which too was dismissed by the State Government by means of an order dated 27.05.2000.
20. The U.P. Power Corporation Limited challenging the orders dated 26.4.1999, 4.4.2000 and 27.5.2000 filed Civil Misc. Writ Petition No. 28504 of 2000 (UPPCL Vs. Rakesh Doneria and others) before the High Court.
21. It is submitted that there were two proceedings initiated against the opposite party No. 2. The facts enumerated above are related to first proceedings against the opposite party no.2, whereas the second proceeding against the opposite party No. 2 was initiated on account of the checking carried out on 11.09.1998, in which the opposite party was found indulged in theft of electricity. On account of the theft of electricity found in the checking report dated 11.09.1998, a revenues assessment was made against the opposite party No. 2 for a sum of Rs. 46,33,497.54. Final assessment order was passed on 13.10.1998 by the Assessing Officer and therefore, a First Information Report dated 11.9.1998 was also lodged against opposite party no.2. The opposite party No. 2 filed Civil Misc. Writ Petition No. 4388 of 1998. At the time of hearing, the assessment bill was produced before the High Court, therefore the order dated 13.10.1998 was passed directing the opposite party No. 2 to deposit the assessment amount within a period of one week, but the opposite party no.2 instead of depositing the said amount preferred an appeal against the final assessment order dated 13.10.1998 before the Appellate Authority under Regulation 23(2) of the Regulations of 1984. After filing the said appeal, the opposite party No. 2 withdrew his writ petition No. 43988 on 30.11.1998.
22. The appeal preferred by the opposite party No. 2 was dismissed by the Appellate Authority vide order dated 04.05.1999 affirming the final assessment order dated 13.10.1998.
23. The opposite party No. 2 filed a Civil Suit being O.S. No. 943 of 1999 before the learned Civil Judge challenging the order dated 04.05.1999 passed by the Appellate Authority, the checking report dated 11.09.1998 and final assessment order dated 13.10.1998. In the said suit interim injunction was granted on 15.12.2000, as a result thereof the amount of revenue assessment for a sum of Rs. 46,23,517.54 could not be realized from the opposite party No. 2 during the pendency of the said suit.
24. Subsequently the Suit NO. 943 of 1999 filed by the opposite party No. 2 was dismissed in default by the Civil Judge vide order dated 02.03.2007.
25. The opposite party no.2 filed Writ Petition No.48947 of 2007 for writ of mandamus, directing the respondents therein not to disconnect the electric connection of the petitioner's firm and to adjust the amount of Rs.1,95,575/- in the electric bills issued after 30.11.2005 and to refund the excess amount of Rs.3,08,91,900/- with interest as well as compensation for loss suffered to him.
26.Thereafter the supply of electricity of the opposite party No. 2 was disconnected on 08.03.2007 and a demand notice to the tune of Rs. 1,23,21,621/- was issued to the opposite party No. 2 for realization of the assessment amount after adding surcharge and the total amount which was to be recovered from the opposite party No. 2 at that time and as such the Recovery Certificate dated 09.08.2007 was issued against the opposite party no.2, therefore, citation has been issued on 21.8.2007 by the authority concerned for attachment of immovable properties of opposite party no.2. At this stage, opposite party no.2 filed Writ Petition No.50051 of 2007 challenging the recovery certificate and citation for recovery amount on the basis of theft assessment dated 15.09.1998/13.10.1998.
27. Since the electricity connection of the opposite party no.2 was permanently disconnected on account of non-payment of electrical dues, therefore, an office memorandum No.6501 dated 18.10.2008 was issued by the applicants, in which total electrical dues to the tune of Rs.3,20, 23, 176/- was shown as due and payable by the opposite party no.2. Since the Recovery Certificate for a sum of Rs.1,23, 21, 621/- was already issued on 09.08.2007 itself, therefore, a fresh demand notice dated 26.11.2009 was issued only for balance amount of electrical dues to the tune of Rs.1,97,01, 555/-.
28. On non-payment of aforesaid dues, the properties of the opposite party no.2 were attached on 15.7.2009 and were put to auction on 6.8.2009.
29. The opposite party no.2 on not getting any relief from any Court, moved an application and deposited Rs.1,000/- as registration fee for availing the benefit of one time settlement scheme promulgated by the Regulatory Commission. One time settlement bill was prepared by the applicants on 04.03.2010. The opposite party no.2 did not feel satisfied against the same and instead of depositing the amount of electrical dues as per settlement bill dated 04.03.2010, filed another Writ Petition No.21843 of 2010 (M/s Doneria Iron and Steels vs. DVVNL and others).
30. The above writ petition was disposed of by the judgment and order dated 29.04.2010 giving liberty to the opposite party no.2 to make a fresh representation, which will be considered and decided by the Executive Engineer under one time settlement scheme. In view of above, the representation of the opposite party no.2 was decided by the applicants vide order dated 20.05.2010, which was not further challenged by the opposite party no.2.
31. At the time of filing Writ Petition No.50051 of 2007 and Writ Petition No.48947 of 2007 by the opposite party no. 2, no interim order in favour of the opposite party No.2 was granted.
32. The opposite party no.2 during pendency of aforesaid three writ petition nos. 28304 of 2007 filed by the Electricity Department and writ petitions no. 48947 of 2007 & 50051 of 2007 filed by the opposite party no.2, has moved an application dated 12/07/2010 under section 156(3) Cr.P.C. before the Additional Chief Judicial Magistrate, Court No.12, Agra on 12.07.2010 against the 13 named accused persons and 8 - 10 unknown persons including the applicants and auction purchaser, making allegations that all the accused persons in collusion with each other issued a forged notice on 8.12.2009 and shown a bogus auction dated 8.1.2010. It is further alleged that on the basis of the said proceedings taken away the machinery of the industry of the opposite party no.2 of more than worth of rupees five crores, while in fact on 8.1.2010 no auction took place. On which, the Station House Officer, Police Station Etmauddaula, District-Agra was directed to submit report. Thereafter, the Additional Chief Judicial Magistrate, Court No.12, Agra without prior sanction of the authority concerned of the State Government passed an exparte order dated 19.07.2010 directing the Station House Officer, Police Station Etmauddaula, District Agra to register the First Information Report against the accused persons/applicants.
33. In compliance with the order dated 19.07.2010 passed by Additional Chief Judicial Magistrate, Court No.12, Agra, the Station House Officer, Police Station Etmauddaula, District Agra registered a First Information Report on 26.07.2010 against the accused persons including the applicants as Case Crime No.418 of 2010 under sections 406, 420, 467, 471, 506, 40, 185, 120-B, 192 I.P.C, Police Station Etmauddaula, District Agra.
34. Against the aforesaid F.I.R. dated 26.07.2010 a Criminal Writ Petition No.14842 of 2010 (Ayush Kumar and others vs. State of U.P. and others) was preferred by the applicants, in which arrest of the applicants was stayed by means of the order dated 13.08.2010 during investigation.
35. The investigating officer after investigation, without recording the statement of SDM and Tehsildar Edmadpur regarding main backbone of alleged document dated 08.12.2009 & 08.10.2010 and without obtaining prior sanction under section 197 Cr.P.C. submitted charge sheet only against the applicants on 02.09.2010 out of 13 named accused and 8-10 unknown accused. The accused persons who were named in the FIR and had participated in auction proceedings have been let off. Shyam Singh Baghel and Mahendra Pandit were recovery Amean. Pradip Kumar was auction officer on 08.10.2010. The order dated 08.12.2010 was passed by SDM to conduct auction proceeding have not been charge-sheeted.
36. On the aforesaid charge sheet, the judicial Magistrate took cognizance on 07.10.2010 registering the case as Criminal Case No.2572 of 2010, thereafter applicants were summoned by the order dated 27.01.2011 to face trial in the matter. The said order dated 27/01/2011 was challenged by the applicants in criminal revision no 1252 of 2011 which was allowed by the high court by dated 28/02/2011 setting aside the summoning order dated 27/01/2011 in the light of decision of the Apex court in case of Fakhruddin Ahmad vs state of Uttaranchal and another 2009 (64) ACC 774 with the direction to the magistrate concerned to pass fresh order. Thereafter Additional Chief Judicial Magistrate passed fresh order dated 30/04/2011 summoning the applicants to face trial under section 467, 471 and 120B I.P.C., which is under challenged in this application.
37. In the meantime, High Court by common judgment and order dated 18.04.2011 dismissed the Civil Misc.Writ Petition No.28504 of 2000 filed by the Electricity Department, allowed the Civil Misc.Writ Petition No.50051 of 2007 filed by opposite party no.2 and disposed of Civil Misc. Writ Petition No.48947 of 2007 filed by the opposite party no.2. UP Power Corporation Ltd. against the order dated 18.04.2011 filled special leave to appeal (civil) No. (S) 22174/2011, S.L.P (C) CC No. 17340/2011 and S.L.P (C) CC No. 18387/2011, which were disposed of by common order dated 06.09.2013 with the liberty to the applicants to file review petition before the High Court. Thereafter review application filed by the UP Power Corporation Ltd. was dismissed on 07.01.2014.
38. The learned counsel for the applicant after placing the aforesaid facts summarized his argument which are as follows:-
(i) Applicants are public servant within the meaning of Section 21 of the Indian Penal Code.
(ii) Applicants were empowered under Section 170 of the Electricity Act to recover the penalty from the opposite party no.2 as, if it were an arrear of land revenue in discharge of their official duty.
(iii) All the act done by the applicants were in discharge of their official duty in good faith in letter and spirit of statutory provisions.
(iv) Dispute in question between the parties concerned is essentially of civil nature, therefore, impugned criminal proceedings converting the civil dispute in criminal offence against the applicants is bad in law on the given facts and circumstances of this case.The learned counsel for the applicants in support of above submission placed reliance on the following judgements of the apex court :-
(a) G.Sagar Suri vs. State Of U.P. 2000 (2) SCC 636
(b) Indian Oil Corporation vs. NEPC India Ltd. 2006 (6)SCC 736
(c) R.K.Vijayasarathy vs. sudha Seetharam, 2019 Law Suit (SC) 213
(v) Further submission of the learned counsel for the applicants is that investigation on the private complaint under section 156(3) Cr.P.C. against the applicants being government servant could not be directed without obtaining prior sanction from the government. In support of this submission, learned counsel for the applicants placed reliance on the following judgment of Apex Court:-
(a) Anil Kumar & ors. vs. M.K.Alyappa & anr. (2013) 10 SCC, 705.
(b) L. Narayana Swami Vs. State of Karnataka 2016 (9) SCC 598
(c) State of U.P. Vs. Paras Nath Singh 2009 (6) SCC 372
(vi) impugned chargesheet dated 02.09.2010 was submitted by the investigating officer without obtaining prior sanction, as required under section 197 Cr.P.C. The accused persons who were named in the FIR and had participated in auction proceedings have been let off. Shyam Singh Baghel and Mahendra Pandit were recovery Amean . Pradip Kumar was auction officer on 08.10.2010.
(vii) The order dated 08.12.2010 was passed by SDM to conduct auction proceeding have not been chargesheeted.
(viii) The judicial magistrate also committed legal error in taking cognizance on 07.10.2010 against the applicants due to want of prior sanction of the authority concerned under section 197 Cr.P.C.
(ix) Learned counsel for the applicants placed reliance on the provision of Section 168 of the Electricity Act 2003 by contending that no suit, prosecution or other proceeding are maintainable against the applicants as the Act done by the applicants was in good faith and discharge of their official duty. In support of aforesaid contentions learned counsel for the applicants placed reliance on the following judgments:-
(a) Rangesh Sharma vs. State of U.P. 1988 Law Suit (All) 211
(b) Baliram Singh vs. State of Bihar 1989 Law Suit (Pat) 53
(c) Somashekarappa vs. State of Karnataka, 1990 Law Suit (Kar) 278
(e) K. Kalimutha Vs. State 2005 (4) SCC 512
(f) State of M.P. Vs. Sheetla Sahai 2009 (8) SCC 617
(g) Manorama Tiwari Vs. Surendra Nath Rai 2016 (1) SCC 594
(x)The impunged FIR has been lodged by the opposite party no 2 after a series of litigation with view to create mental torture and harassment against the applicants, who are bona fide public servants and discharged their official duty as per law. The learned counsel also placed reliance on the judgment of Apex court in case of Dalip Singh vs state of U.P. And another 2010 (2) SCC 114 referring paragraph nos. 1 and 2 of the said judgment, which are quoted herein-below:-
"1. For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
(xi) The last plank of submission is that under the facts and circumstances of the case, initiation of criminal proceedings against the applicants by the opposite party no.2 without prior sanction under Section 197 Cr.P.C. is nothing but malicious prosecution, which is clear abuse of process of the Court, therefore, it is expedient in the interest of justice to quash the impugned summoning order dated 30.4.2011 as well as all further proceedings pursuant thereto.
39. It is also relevant to mention that notice of this case on behalf of opposite party no.1/State of U.P. was accepted by the office of Government Advocate High Court, Allahabad on 23.5.2011, but no counter affidavit has been filed on behalf of opposite party no.1.
40. The opposite party no.2 has filed counter affidavits and refuting the submissions advanced on behalf of the applicants vehemently opposed the prayer and stand taken by the applicants mainly by submitting that:-
(i) On 11.07.1994 Tri-vector meter was installed by the supplier with line C.T. Ratio 20/5 and multiplying factor as 400 and 4.
(ii) All monthly bills from July 1994 to May 1996 were raised and signed by the Executive Engineer, Assistant Engineer (Revenue) on the basis of multiplying factor as 400 and 4. The said bills were paid by the opposite party no.2.
(iii) Every month in presence of opposite party no.2, the locks/seals were opened, old seals were checked and replaced by new seals and fresh sealing certificates were issued by Sub Divisional Officer (II) and Assistant Engineer (Meter).
(iv) In the month of June 1996 dispute arose regarding correct multiplying factor of the meter.
(v) Aggrieved by the action of the applicants, the opposite party no.2 filed a Suit No.589 of 1996 before the Civil Judge (Senior Division) Agra, in which on 21.08.1996 ex-parte injunction order was granted restraining the defendants (U.P.S.E.B.) from raising / realizing any bill prepared on the basis of multiplying factor as 600 & 6 in place of 404 & 4 and from disconnecting the electric supply with further direction that plantiff will be entitled for adjustment of excess money, if so found in the prospective bills, but the officer concerned despite order dated 21.08.1996 raised supplementary bill dated 25.08.1996 for a sum of Rs.12,59,895.84/- by applying wrong multiplying factor as 600 & 6 without prior notice, without conducting checking in accordance with law.
(vi) The order passed by the High Court in FAFO No.191 of 1997 was complied by opposite party no.2 by depositing 50% (Rs.6,30,000/-) of the disputed supplementary bill dated 25.08.1996 of Rs.12,59,895.84p in cash and furnished security for the balance 50% amount.
(vii) The supply of electricity to the opposite party no.2 was illegally disconnected by the applicants. Without issuing prior notice, immoveable property worth more than rupees four crores was illegally attached without following the mandatory provisions of U.P.Z.A. & L.R. Act and rules framed thereunder on 15.07.2009 in the garb of the recovery proceeding for the amount of Rs.1,97,01, 555/-. Lateron auction was held for the amount of Rs.1,97,01,555/- but the attached property has been auctioned for the meager amount of Rs.5,10,000/- only.
(viii) The officers concerned in pre-planned strategy prepared bogus recovery certificates and issued a bogus notice on 08.12.2009 and showed a bogus auction memo on 08.01.2010 and on the basis of the same taken away the machinery of the industry of the opposite party no.2. It is also submitted that in fact on 08.01.2010 no actual auction took place.
(ix) The accused persons with malafide intention auctioned all the property of the opposite party no.2 for alleged amount of Rs.40,23,497.54 and Rs.10,74,370.57 on the basis of recovery certificate dated 31.1.1999 of which effect was stayed, even then movable property of value of Rs. Five crores and immovable property of Four crore were auctioned in rupees twenty lakhs and then thousand without adopting due procedure.
(x) By common order and judgment dated 18.4.2011 of High Court, Civil Misc. Writ Petition No. 28504 of 2000 filed by the Electricity Department has been dismissed, Civil Misc. Writ Petition No. 50051 of 2007 filed by the opposite party no.2 has been allowed and Civil Misc. Writ Petition No. 48947 of 2007 filed by the opposite party no.2 has been disposed of with the observation mentioned therein. The order dated 18.04.2011 has become final as review application filed by UP Power Corporation has also been dismissed on 07.01.2014.
(xi) On the strength of aforesaid facts, it is submitted by the opposite party no.2 that at this stage, there are sufficient evidence available on record to constitute prima facie case against the applicants.
(xii) The civil proceedings as well as criminal proceedings can run simultaneously, as there is no bar.
(xiii) The criminal proceedings shall prevail over civil proceedings.
(xiv) The act and conduct of the applicants were not in good faith, therefore, protection provided under Section 168 of the Electricity Act is not available to the applicants and prior sanction as required under Section 197 Cr.P.C. is not necessary for prosecuting the applicants.
(xv) Lastly, it is submitted that since charge-sheet has been submitted in this case against the applicants and cognizance has been taken in the matter, therefore, plea as taken by the applicants cannot be taken into consideration at this stage and the present application is liable to be dismissed.
(xvi) The opposite party no.2 in support of his aforesaid submissions has placed reliance on the following judgments:-
(a) Subkar Rajiv vs. Shankar Raj, 2007 Cr.L.J., 4293
(b) Bhushan Kumar & another vs. State (NCT Delhi ) & another, J.T.2012(4) SC 127
(c) Syed Askari Hadi Ali Augustine v. State (NCT Delhi ) & Another (2009) 5 SCC 528
(d) P.Swaroop Rani v. M.Hari Narayan (2008) 3 SCC (Crl) 19
(e) Trisuns Chemical Industry v. Rajesh Agarwal (1997) 8 SCC 686
41. Before delving into the issue, it would be appropriate to reproduce section 197 Cr.P.C. and Sections 168, 169 & 170 of Electricity Act.
Section 197 Cr.P.C.
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: 1 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.
(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" occurring therein, the expression" State Government" were substituted.
(3A) 1 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.
(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.
Section 168 of Electricity Act " Protection of a action taken in good faith-
No suit, prosecution or other proceeding shall lie against the Appropriate Government or Appellate Tribunal or the Appropriate Commission or any officer of Appropriate Government, or any Member, officer or other employee of the Appellate Tribunal or any member, officer or other employee of the Appropriate Commission or the assessing officer or any public servant for anything done or in good faith purporting to be done under this Act or the rules or regulations made thereunder."
Section 169- Electricity Act Members, officers, etc. of Appellate Tribunal, Appropriate Commission to be public servants.-
The Chairperson, Members, officers and other employees of the Appellate Tribunal and the Chairperson, Members, Secretary, officers and other employees of the Appropriate Commission and the assessing officer referred to in section 126 shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
This clause provides that the Chairperson, members, officers and other employees of the Appellate Tribunal and the Chairperson, Members, Secretary, officers and other employees of the Appropriate Commission and the assessing officer referred to in clause 126 shall be deemed to be public servant within the meaning of section 21 of the Indian Penal Code. (Notes on clauses).
Section 170 Electricity Act Recovery of penalty payable under this Act.-
"Any penalty payable by a person under this Act, if not paid, may be recovered as if it were an arrear of land revenue.
This clause provides that any amount payable by a person under the proposed legislation if not paid, may be recovered as if it were an arrear of land revenue. (Notes on Clauses)."
42. Firstly, I shall deal with the judgments relied upon on behalf of the applicants.
(a) G.Sagar Suri vs. State Of U.P. 2000 (2) SCC 636 In the said case apex court has observed that it is to be seen if a matter, which is essentially of civil nature , has been given a cloak of criminal. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. Jurisdiction under section 482 Cr.P.C. has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice .
(b) Indian Oil Corporation vs. NEPC India Ltd. 2006 (6)SCC 736 In the said case apex court has observed that any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
(c) Professor R.K.Vijayasarathy & another vs. sudha Seetharam & another, 2019 Law Suit (SC) 213, paras 23, 24 & 25 are relevant, which are being quoted hereinunder:-
"23 The jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with care. In the exercise of its jurisdiction, a High Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court.
24 In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent. The suit is pending. The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit. The averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code. An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. The complaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed.
25 For the above reasons, the appeal is allowed. The judgment of the High Court is set aside and the criminal proceedings arising from PCR 2116 of 2016 instituted by the first respondent against the appellants are quashed. We however clarify, that no opinion has been expressed on the merits of the pending civil suit filed by the son of the appellants for the recovery of money. The pending suit shall be disposed of in accordance with the law."
(d) Anil Kumar and others vs. M.K.Aiyappa and another (2013) 10 SCC, 705. Para 8, 9, 12 & 14 are relevant, which are being reproduced below:-
"8. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C., could act in a mechanical or casual manner and go on with the complaint after getting the report. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
9. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression "cognizance" appearing in Section 19(1) of the PC Act will have to be construed as postcognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. The expression "cognizance" which appears in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this Court expressed the following view: "6. .............And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ''no court shall take cognizance of such offence except with the previous sanction'. Use of the words ''no' and ''shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word ''cognizance' means ''jurisdiction' or ''the exercise of jurisdiction' or ''power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty."
In State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, this Court has observed as follows:
"It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out."
12. We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression "public servant" and provides under Clauses (viii) and (xii) as under:
"(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty.
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."
The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under:
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been ommitted by a public servant, except with the previous sanction--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removeable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder:
"Section 19(3) - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
14. Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General Officer, Commanding v. CBI and opined as follows:
"Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him.....
If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio."
(e) State of U.P. Vs. Paras Nath Singh 2009 (6) SCC 372 In this case it was observed that jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Cr.P.C. and so far as the public servant is concerned, this was clearly barred by Section 197 Cr.P.C. unless the sanction was obtained from the appropriate authority. In absence of prior sanction it was observed that Magistrate cannot order investigation against the public servant even while invoking power under Section 156(3) Cr.P.C.
(f) L. Narayana Swamy Vs. State of Karnataka 2016 (9) SCC 598 In this case the Apex Court has followed the judgment in Anil Kumar Vs. M.K. Ayappa (supra). After discussing various other pronouncements, it was concluded that even while directing an enquiry under Section 156(3) Cr.P.C. to the complaint and therefore, it would amount to taking cognizance in the matter.
(g) Rangesh Sharma vs. State of U.P. 1988 Law Suit (All) 211, paras 14, 15, 16, 17, 18, 19 & 20 are relevant which are being reproduced below:-
"14. It is thus manifest that before proceeding against the applicants a sanction much less a valid sanction exists. Before proceeding with the case it was incumbent on the prosecution to prove that a valid sanction had been granted by the sanctioning authority on being satisfied that a case has been made out constituting an offence. The grant of a sanction is not an idle formality but a solemn and sacrosanct act as it affords the umbrella of protection to public servants against frivolous prosecutions. It has to be strictly complied with before any prosecution could be launched against the concerned public servant. It requires strict compliance. It is thus radiantly revealing that the policy underlying the provisions for grant of sanction is that there should not be an unnecessary harassment of a public servant. (See C. R. Banshi v. State of Maharashtra, AIR 1971 SC 786).
15. It is also well settled that the existence of a valid sanction is a prerequisite for taking cognizance by courts. It is incumbent on the courts before taking cognizance that they enquire whether there is a valid sanction to prosecute the public servant for the offences alleged to have been committed by him as public servant while discharging his duties (See R. S. Naik v. A. R. Antule, AIR 1984 SC 684). In the case of R. R. Chari v. State of U. P., AIR 1962 SC 1573 it has been held that a trial without a valid sanction where one is necessary has been held to be a trial without jurisdiction. Any case instituted without a proper sanction must fail. It is a manifest defect in the prosecution rendering the entire proceeding void ab initio. In the case of Mohd. Iqbal Ahmad v. State of Andhra Pradesh, AIR 1979 SC 677 it was held as under:
"...that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. The Supreme Court further went on to stress that the prosecution cannot be given a chance to produce material in the appeal before the Supreme Court to satisfy that the sanctioning authority had duly applied its mind to the facts constituting the offence. It was also held in a criminal case the Supreme Court or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution".
16. From the above discussion it is clear that no sanction much less a frivolous one was obtained for the prosecution of the applicants. In the bsence of any such sanction the trial Court had no jurisdiction to take cognizance of the case. The proceedings before the trial Court were void ab initio being without jurisdiction. In the case of Mohd. Shafi Ullah Ansari v. State of U.P., 1986 All LJ 996 and in the case of Rewa Chand Khattar v. State of U.P., 1986 All LJ 1528 it was held by this Court that in the absence of a sanction the trial would be deemed to be void ab initio and without jurisdiction.
17. Learned counsel for opposite party No. 2 submitted that a sanction would be obtained but in a criminal case the Supreme; Court or for that matter any Court should not direct fresh evidence to fill up a lacuna deliberately left by the prosecution as was held in the case of Mohd. Iqbal Ahmad v. State of Andhra Pradesh (AIR 1979 SC 677) (supra).
18. Learned counsel for opposite party No. 2 then submitted that the application under Section 482, Cr.P.C. is not maintainable and this Court shall not interfere with the proceedings. The submission is without any merit. It is only in such cases that where inherent jurisdiction of the Court has to be invoked so as to prevent abuse of the process of Court. It would be a futile exercise to permit the proceedings to continue where a sanction is not available and the jurisdiction has been illegally assumed. A public servant cannot be prosecuted on the mere whims and caprice of a person. A perusal of the complaint would reveal the capricious and malicious approach of opposite party No. 2 to file a complaint against the applicants. It is in such circumstances that to secure the ends of justice that the inherent powers of this Court have to be invoked.
19. Provisions of Section 482, Cr.P.C. are analogous to Section 561A of Cr.P.C. of 1898 (old Code). In the case of R. P. Kapur v. State of Punjab, AIR 1960 SC 866 their Lordships observed as follows:
"(6) Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Codeorto prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code...
It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would ensure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance furnish cases under this category....
Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: in re, Shripad G. Chandavarkar, AIR 1928 Bom 184; Jagat Chandra Mazumdar v. Queen Empress, (1899) ILR 26 Cal 786; Doctor Shanker Singh v. State of Punjab, 56 Pun LR 54 : AIR 1954 Punj 193; Nripendra Bhushan Roy v. Govinda Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiar v. Shivarama Subramania, ILR 47 Mad 722 : AIR 1925 Mad 39."
In the instant case as has been held above, the sanction for the prosecution of the applicants was necessary. It is manifestly apparent that for the want of requisite valid sanction there is a legal baragainst the institution or continuation of the proceedings pending in the trial Court. It is in such cases that it would be | justifiable to quash the proceedings as any continuation of the criminal proceeding against the applicants would amount to abuse of the process of the Court. Ends of justice would also require that the proceedings pending in the Court below are liable to be quashed. It is only to invoke inherent jurisdiction that the instant case is a proper case where the inherent power should be exercised.
20. Opposite party No. 2 being aggrieved of his transfer affecting the terms and condition of his service had already filed a writ petition. There is nothing on record about the fate of the petition. As has been pointed out above the applicants would not have gained any fruits by interpolating or antedating the relieving papers from 20-9-1978 to 2-9-1978. The applicants thus deserve to be saved from such aggressive postures of opposite party No. 2. It would be a sad day if such delinquent employees are permitted to implicate their senior officers by cooking up false and imaginary allegations. It would have been a fit case for issuing a direction for drawing departmental proceedings for harassment of such officers the trend of indiscipline has to be curbed as such indiscipline affects public good and public welfare. However, I am constrained to issue such a direction in view of the fact that the case is of a decade back."
(h) Baliram Singh vs. State of Bihar 1989 Law Suit (Pat) 53, paras 8, 9, 10, 11, 16, 17, 19, 21 & 22 are relevant which are being reproduced below:-
"8. Section 56(1) of the Electricity Act has also laid down that no suit, prosecution or other proceeding shall lie against any public officer, or any servant of a local authority, for anything done, or in good faith purporting to be done, under this Act. Sub-section (2) reads as follows:
"No Court shall take cognizance of an offence under the Act, against a public officer except with the sanction-
(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government, and
(b) in any other case, of the State Government."
9. In that view of the matter, it is manifest that any member or officer and other employees of the Board is a public servant within the meaning of Section 21 of the Penal Code and if he is acting in good faith under the provisions of these acts shall not be prosecuted without obtaining the sanction, in the case of such persons employed in the affairs of the Union Government, from the Central Government, and in the case of the persons employed in connection with the State Government, from the State Government.
10. I have already indicated above that the petitioner is admittedly an officer of the Electricity Board, therefore, he is a public servant as defined under Section 21 of the Penal Code.
11. Section 197 of the Code also provides that 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 obtained from the Central Government or the State Government as the case may be. The object of this section is to guard against any vexatious proceedings against any public servant without securing the opinion of his superior authority as to whether there should be prosecution or not.
16. I have already referred to sub-clause (2) of Section 56 of the Electricity Act which provides that no cognizance can be taken against any member, officer or other employees of the Board except with the sanction of the appropriate Government.
17. In that view of the matter, the cognizance taken against the petitioner without sanction cannot be sustained in the eye of law and fit to be quashed.
19. On behalf of the State, it was submitted that the offence committed by the petitioner was not done while discharging his duty. Therefore, the question of obtaining sanction does not arise at all. According the the learned State counsel, even if the sanction is required, it can be obtained during the course of trial as well.
21. It may be pointed out here that the petitioner had gone to inspect the Hathidah electrical sub-station as per the instruction of the General Manager-cum-Chief Engineer, Central Bihar Area Electricity Board and during the course of such visit, the alleged occurrence took place. From the complaint petition also it is clear that the occurrence is said to have taken place near the control room. Therefore, once it is held that the petitioner is a public servant and while he was discharging his official duties during which the alleged occurrence is said to have taken place, it is very difficult to hold that the alleged act was done not in the capacity of public servant but in capacity of private individual.
22. For the reasons stated above, the impugned order is set aside and the entire prosecution of the petitioner in Complaint Case No. 33/C/83 pending in the Court below is hereby quashed."
(i) Somashekarappa vs. State of Karnataka, 1990 Law Suit (Kar) 278, paras 8 is relevant, which is being reproduced below:-
"8. I am aware that the powers under Section 482, Cr. P.C. are to be exercised by the Court in exceptional circumstances and very sparingly. I am also aware that the court is not expected to embark upon an enquiry about the guilt or otherwise of the case in a petition under Section 482 of Cr.P.C. But if on the face of the record itself, it appears that the accused cannot be called upon to answer any criminal liability. I think it will be just and proper for this Court to exercise its power tinder Section 382 of Cr.P.C. to prevent the abuse of the process of the Court. In Nagawwa v. Veerannu, , their Kordships of the Supreme Court have enumerated the cases, wherein the Court's interference for quashing can he justified :
(1) Where the allegations made in tire complaint or the statement of the witnesses recorded in support of the sagre taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person cars never reach a conclusion that there is sufficient ground for proceeding against the ccused.
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or no material which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."
In this instant case also, the complaint does not speak that the accused was responsible for the safe maintenance of that feeder box. On the other hand the official Booklet of Definitions of Jobs (Duties) (Executive) by the Karnataka Electricity Board goes to show that looking after the feeder box is the duty of the Junior Engineer and not the petitioner, who is an Assistant Executive Engineer. Therefore, to permit the prosecution to continue against him will not only be an harassment to a person, who is not responsible for that act but it will also amount to abuse of the process of the Court. Point No. 1 is answered accordingly.
(j) K. Kalimutha Vs. State 2005 (4) SCC 512 In this case the Apex Court has observed that official duty employees that an act or omission must have been done by the public servant within the scope and range of official duty for protection. The question relating to need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. The question whether sanction is necessary or not may have to be determined from stage to stage. In cases where offence under the Act are concerned the effect of Section 197, dealing with question of prejudice has also to be noted.
(k) State of M.P. Vs. Sheetla Sahai 2009 (8) SCC 617 In this case Apex Court has held that for the purpose of attracting the provisions of section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where public server purport to act their official capacity, the same would attract the provisions of of section 197 of the Code of Criminal Procedure.
(l) Manorama Tiwari Vs. Surendra Nath Rai 2016 (1) SCC 594 In this case Apex Court has held that the appellants were discharging public duties while performing surgery in a Government Hospital, hence production was not maintainable without sanction from State Government.
43. The Apex Court in case of Amal Kumar Jha Vs. State of Chattisgarh and another 2016 (6) SCC 734 has also held that if public servant in doing his official duty, acted in excess of his duty, but there is a reasonable connection between act and performance of official duty, excess will not be sufficient ground to deprive public servant of protection. It is also observed that before Section 197 Cr.P.C. can be invoked, it must be shown that official concerned was accused of offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties. It is not the duty which requires examination so much as the act, because official act can be performed both in discharge of official duty as well as in dereliction of it. The act must fall within the scope and range of official duties of public servant concerned.
44. Here, it is relevant to mention that it is more than settled that sanction to prosecute under Section 197 of the Cr.P.C. is required only when the alleged act has reasonable nexus between the act done and official duty. The reference in this regard would be useful to quote the judgment of Apex Court in case of Devendra Singh Vs. State of Punjab through C.B.I. 2016 (12) SCC 87, wherein after taking into consideration the entire law on the subject the principles emerge therefrom have summarized as under:-
" 39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2 Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 39.3 Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
39.4 In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.
39.5 In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6 Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
39.7 Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8 Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.
39.9 In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."
45. Secondly, I shall deal with the judgments of relied upon on behalf of the opposite party no.2.
(a)Subkar Rajiv vs. Shankar Raj, 2007 Cr.L.J., 4293, it has been held that accused has no right to be heard at the time of issuance of criminal process or at the time of taking cognizance of the criminal case.
(b) Bhushan Kumar & another vs. State (NCT Delhi ) & another, J.T.2012(4) SC 127, it has been stated by Apex Court that summoning orders require no explicit to be stated because it is imperative that the Magistrate must have applied his mind to allegations made in report, further as per section 204 Cr.P.C., it is in the opinion of magistrate sufficient to take cognizance of offence and there is sufficient ground for proceeding, further there is no legal requirement that the trial court should write an order showing reasons for framing charge, why should already burdened trial courts be further burdened with such extra work. It is quiet unnecessary to write detailed orders at other stages as of:- issuing process, remanding accused to custody, framing of charges, passing over to next stages in trial. This being the settled legal proposition that the orders passed by magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order.
(c) Syed Askari Hadi Ali Augustine v. State (NCT Delhi ) & Another (2009) 5 SCC 528, it is now well settled that the criminal proceedings have primacy over civil proceedings for the reason that civil proceedings ordinarily takes a long time and in the interest of justice the criminal proceedings should be disposed of expeditiously as possible.
(d) P.Swaroop Rani v. M.Hari Narayan @ Hari Babu (2008) 3 SCC (Crl) 19, Hon'ble Apex Court has held that criminal as well as civil proceedings can proceed simultaneously and there is no such bar whatsoever that merely because a case seems to be civil as well as criminal nature then the criminal proceedings will not be done and thus Apex court set aside the interim stay order of staying proceedings in the criminal case.
(e) Trisuns Chemical Industry v. Rajesh Agarwal & others (1997) 8 SCC 686, Hon'ble Apex Court has held that criminal proceedings cannot be thwarted merely because civil proceedings are also maintainable.
46. Considering the aforesaid proposition of law on the issue of applicability of prior sanction for prosecution of public servant, as settled by the Apex Court, it is clear that the Section 197 Cr.P.C. cannot be construed to narrowly in the cases, where act done by the officials in discharge of their statutory duty otherwise the same will render the provisions of Section 197 Cr.P.C. entirely otiose.
47. In sum, the sine qua non for the applicability of the Section 197 Cr.P.C. is that offence charged, be it one of commission or omission must be one which has been committed by the public servant either in his official capacity or under colour of offence held by him. In the matter of grant of sanction under Section 197 Cr.P.C.,the offence alleged to have been committed must have something to do or must be related in some manner with discharge of official duty. There must be a reasonable connection between the act and discharge of official duty.
48. The word 'official' according to dictionary means pertaining to an office. The 'official act' or 'official duty' means an act or duty done by an office in his official capacity. The Section 197 Cr.P.C does not extent its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omission which are done by a public servant in discharge of official duty.
49. It is well settled that once it is established that act or omission done by the public servant then scope of being its official should be construed so as to advanced the objective the section in favour of public servant. Otherwise entire process of affording protection to a public servant without sanction shall stand frustrated. If any officer commits an act in course of service but not in discharge of his duty, then the bar under Section 197 Cr.P.C. is not attracted.
50. Sri Rakesh Doneria/opposite party no.2 has given much emphasis that the civil proceedings as well as criminal proceedings both can proceed simultaneously. The substratum of arguments of opposite party no.2 is that criminal proceeding cannot be thwarted merely because civil proceedings are maintainable. Since the act done by the applicants as mentioned above was neither bonafide nor in good faith, therefore, prior sanction under Section 197 Cr.P.C is not attracted in the present case. Considering the aforesaid submissions of the opposite party no.2, in the light of submissions advanced on behalf of the applicants and law laid down by the Apex Court regarding the scope and object of section 197 Cr.P.C. as mentioned above, here it is relevant to mention the following facts, which would be useful to reach on the conclusion whether act done by the applicants was in official capacity in discharge of official duty or not.
(i) The opposite party no.2 has not disputed the power and jurisdiction of the applicants regarding the act done by them in discharge of their official duty.
(ii) The stand of the applicants that they are public servant has also not been disputed by the opposite party no.2.
(iii) In this case checking was carried out by the applicants in presence of the opposite party No. 2.
(iv) Re-inspection was carried out on 17.08.1996 as per order of the Superintending Engineer and this checking was also carried out in presence of opposite party No. 2, Sri Rakesh Doneria.
(v) Supplementary Bill dated 25.08.1996 was issued to the opposite party No. 2 directing him to deposit for a sum of Rs. 12,59,895.84.
(vi) On the aforesaid action taken by the applicants against the opposite party no.2, multiple litigation started. Reference of the same are as follows:-
(a) Civil Suit being OS. NO. 589 of 1996 was filed by the opposite party no.2 in the Court of Civil Judge, Senior Division, Agra.
(b) First Appeal From Order No. 191 of 1997 was filed by the corporation before the High Court.
(c) The opposite party No. 2 submitted an application to the Electrical Inspector U.P. Lucknow under Section 26(6) of the Indian Electricity Act, for checking of the metering cubical including the C.T. Ratio.
(d) The opposite party No. 2 also filed an appeal under the Regulation 23(2) of the Electricity Supply Consumer Regulations 1984 before the Appellate Authority against the supplementary bill dated 25.08.1996.
(e) the opposite party No. 2 had filed another suit being O.S. No. 429 of 1998 seeking permanent injunction on the same set of facts.
(f) FIR dated 11.9.1998 was lodged against the opposite party no.2. Thereafter, the opposite party No. 2 filed Civil Misc. Writ Petition No. 4388 of 1998 against the FIR dated 11.9.1998.
(g) During the pendency of the above said proceedings, the Chief Electrical Inspector passed an order dated 26.04.1999 in favour of the opposite party No. 2 declaring correct multiplying factor as 400 and 4 and supplementary bill dated 25.8.1996 was held to be incorrect and cancelled.
(h) Against the above order dated 26.4.1999, the Electricity Department filed an appeal before the State Government, which was dismissed by order dated 4.4.2000.
(i) A review petition was filed by the Electricity Department for review of order dated 04.04.2000, which too has suffered dismissed by the State Government by means of an order dated 27.05.2000.
(j) The U.P. Power Corporation Limited challenging the orders dated 26.4.1999, 4.4.2000 and 27.5.2000 filed Civil Misc. Writ Petition No. 28504 of 2000 (UPPCL Vs. Rakesh Doneria and others) before High Court.
(k) The opposite party No. 2 filed a Civil Suit being O.S. No. 943 of 1999 before the learned Civil Judge challenging the order dated 04.05.1999 passed by the Appellate Authority.
(l) The opposite party no.2 filed Writ Petition No.48947 of 2007 for writ of mandamus, directing the respondents therein not to disconnect the electric connection of the petitioner's firm and to adjust the amount of Rs.1,95,575/- in the electric bills issued after 30.11.2005 and to refund the excess amount of Rs.3,08,91,900/- with interest as well as compensation for loss suffered to him.
(m) Opposite party no.2 filed Writ Petition No.50051 of 2007 challenging the recovery certificate and citation for recovery amount on the basis of theft assessment dated 15.09.1998/13.10.1998.
(n) Aforesaid writ petition no. 28504 of 2000, 48947 of 2007 and 50051 of 2007 have decided by common judgment and order dated 18.4.2011.
(o) U.P. Power Corporation Ltd. against the order dated 18.04.2011 filled Special Leave to Appeal (civil) No. (S) 22174/2011, S.L.P (C) CC No. 17340/2011 and S.L.P (C) CC No. 18387/2011, which were disposed of by common order dated 06.09.2013 with the liberty to the applicants to file review petition before the High Court.
(p) Thereafter review application filed by the UP Power Corporation Ltd. was dismissed on 07.01.2014.
(q) The opposite party no.2 instead of depositing the assessment amount preferred an appeal against the final assessment order dated 13.10.1998 before the Appellate Authority under Regulation 23(2) of the Regulations of 1984.
51. The Apex Court in case of Amal Kumar Jha (supra) has clearly held that if public servant in doing his official duty, acted in excess of his duty, but there is a reasonable connection between act and performance of official duty, excess will not be sufficient ground to deprive public servant of protection. It has also observed in the said case that before Section 197 Cr.P.C. can be invoked, it must be shown that official concerned was accused of offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties. It is not the duty which requires examination so much as the act, because official act can be performed both in discharge of official duty as well as in dereliction of it. The act must fall within the scope and range of official duties of public servant concerned.
52. The Apex Court in case of Devendra Singh (supra) has also held that in some cases it may not be possible to decide the question of good faith or bad faith effectively and finally without giving opportunity to the accused to adduce evidence, therefore, question of good faith or bad faith may be decided on conclusion of trial. Though, there is no dispute about the proposition of law laid down by the Apex Court relied by the opposite party no.2 but here in this case the main issue is whether the applicants are entitled for protection from the prosecution in view of Section 168 of the Electricity Act or not and whether prior sanction under Section 197 Cr.P.C. was required in case of applicants, for prosecuting them.
53. In view of aforesaid discussion under the given facts and circumstances, this Court is of the view that it is clear that the act done by the applicants regarding which, a criminal prosecution/proceedings has been initiated against them was intrinsically connected with discharge of their official and statutory duty. As such the applicants are entitled for the benefit of Section 168 Electricity Act. The protection under Section 197 Cr.P.C. from prosecution is also very much available to applicants. They could not have been prosecuted without prior sanction under the given facts and circumstances of this case. The Investigating Officer committed legal error in submitting impugned charge-sheet against the applicants without obtaining prior sanction under Section 197 Cr.P.C. from the authority concerned. The learned Magistrate has also committed legal error in taking cognizance on the aforesaid impugned charge-sheet in absence of sanction order under Section 197 Cr.P.C. In view of above, the impugned summoning order dated 30.04.2011 and further criminal proceedings pursuant thereto against the applicants are liable to be quashed in order to secure the end of justice.
54. In the result, the impugned summoning order dated 30.4.2011 passed by Additional Chief Judicial Magistrate, Court No.12, Agra and proceedings of Criminal Case No.2572 of 2010 (State vs. Ayush Kumar and others) arising out of Case Crime No.418 of 2010, under Sections 467, 471, 120-B, 192 I.P.C., Police Station Etmuddula, District Agra pending in the Court of Additional Chief Judicial Magistrate, Court No.2, Agra are hereby quashed.
55. The application is allowed.
Order Date :- 10.04.2019 SKD/AK Pandey