Allahabad High Court
Dwarika Prasad Sharma vs State Of U.P. And Ors. on 15 December, 1988
Equivalent citations: 1989CRILJ772
ORDER G.B. Singh, J.
1. This criminal revision is directed against the order dated 22-9-1981 passed by the Ist Addl. Sessions Judge, Bahraich, holding that the Magistrate cannot take cognizance against Vidya Sagar Singh, opposite party No. 2, and Nebu Lal, opposite party No. 3, without sanction under Section 197, Cr. P.C.
2. Dwarika Prasad Sharma revisionist filed a complaint against Vidya Sagar Singh and Nebu Lal for offences under Sections 192, 196, 418, 164, 163, 120, 504, 463, 500 and 465, I.P.C. on 27-2-1981 on the allegation that Vidya Sagar Singh is Executive Engineer in Asthai Khand No. 2, Sarvjanik Nirman Vibhag, Bahraich and Nebu Lal is an accountant in that Khand. Five tenders were invited for pavement of Bahraich-Barabanki-Banda road between 32 Kms. and 36 Kms. by the Executive Engineer of the aforesaid Khand on 3-11-80 the revisionist submitted tenders in time and they were accepted but the Executive Engineer and the Accountant did not give any information to the complainant about the same though he had been going to the office very often and making enquiry about the result of his tenders. The complainant gave an application on 8-1-1981 to the Executive Engineer to inform, him about the result of his tenders. When no reply was received he gave another application on 24-1-1981 by way of reminder. The office of the Executive Engineer sent reply to the complainant by a registered letter which was received by him on 31-1-1981 whereby he was intimated that the sum of Rs. 15000/- deposited by him by way of security in connection with the aforesaid tenders stands forfeited. This order of forfeiture has been passed by the Executive Engineer and the Accountant maliciously. The reasons assigned for forfeiture of the security is that the complainant did not put in appearance to sign the agreement within one week of the acceptance of the tenders, hence these tenders were cancelled and security was forfeited, It was also made known to the complainant through the aforesaid letter that another registered letter had been sent to the complainant by registered post on 19-12-1980 about acceptance of the tenders but no such notice was in fact sent by the opposite parties. This was done only to cause wrongful loss to the complainant by misusing the office which the accused-opposite parties are holding. Opposite Parties Nos. 1 and 2 entered into conspiracy. They manufactured evidence about sending notice and made incorrect entries about the same. Narain Sharma, son of the complainant, had filed a complaint against the predecessor-in-office of opposite party Vidya Sagar Singh and in order to take revenge opposite parties Nos. 2 and 3 conspired to cause wrongful loss to the complainant and wrongfully forfeited his security. The complainant also made a complaint against Vidya Sagar Singh to the Government whereupon the matter had been entrusted to the Vigilance Department. On account of these incidents opposite party No. 2 was harbouring ill-will and threatened the complainant that he would not get any Theka in future unless he made payment like other Thekedars.
3. In connection with this complainant the statement of Dwarika Prasad Sharma complainant was recorded under Section 200 Cr. P.C. and he examined two witnesses Angnu Das P. W. 1 and Zahiruddin P.W. 2 in support of his statement. Zahiruddin is a formal witness. He simply produced certain documents summoned by the complainant Angnu Das P.W. 1 stated about the threats said to have been extended by the Executive Engineer to the complainant some time before the complaint. On the basis of this evidence learned Magistrate came to the conclusion that a prima facie has been made out against the opposite parties. He, therefore, summoned them for the aforesaid offences.
4. When the opposite parties put in appearance they moved an application on 20-6-1981 alleging that they are public servants. Vidya Sagar Singh, accused No. 1, is an officer appointed by the State Government whereas Nebu Lal, accused No. 2, is an officer appointed by the Central Government and they cannot be removed from their office without the sanction of these Governments respectively, they are therefore, entitled to the protection of Section 197, Cr. P.C. Since the complainant has not obtained such sanction the Magistrate could not take cognizance. The complainant filed objection to it pleading that the accused are not entitled to the protection of Section 197, Cr. P.C. because they entered into a criminal conspiracy, manufactured false evidence and committed illegal acts. It was further pleaded by him that cognizance has already been taken by the Magistrate and the accused did not commit the alleged offences in the discharge of their official duties, so no sanction is necessary. The learned Magistrate held that the accused-opposite parties have not proved that they are public servants and it will be just and proper to give an opportunity to the parties to lead evidence and then all the points raised shall be decided. He further held that at present the evidence available on record does not show that bar of Section 197, Cr. P.C. is applicable. Against this decision the accused-opposite parties filed revision which was allowed by the learned Additional Sessions Judge. He held that the accused-opposite parties are public servants and they are entitled to the protection of Section 197, Cr. P.C. Against this decision the present revision has been filed by Dwarika Prasad Sharma, complainant.
5. Heard learned Counsel for the revisionist, learned Counsel for the State and learned Counsel for the accused opposite parties Nos. 2 and 3. The record of the lower Court had also been summoned and was perused.
6. It was argued by the learned Counsel for the revisionist that the accused-opposite parties are not public servants. I do not find any force in this contention. The complainant himself described Vidya Sagar Singh as Executive Engineer, Public Works Department and Nebu Lal as Accountant of that department; In view of the description, the definition of 'public servant' given in Section 21 of the Indian Penal Code and the facts disclosed in the complaint there is no room for doubt that they are public servants. It is not less significant to mention that an the application under Section 197, Cr. P.C. the accused had emphatically alleged that they are public servants. One has been appointed by the State Government and the other by the Central Government. In the objection to the application the complainant did not dispute the fact that the accused are public servants. He simply pleaded that they did not commit the act complained of in discharge of their official duties. Thus, it remained undisputed even in connection with the application under Section 197, Cr. P.C. that the accused Vidya Sagar Singh and Nebu Lal are public servants. It is, therefore, evident that Vidya Sagar Singh and Nebu Lal are public servants and the argument of the learned Counsel for the revisionist to the contrary cannot be accepted.
7. It was secondly argued by the learned Counsellor the revisionist that the offences said to have been committed by the accused are not the acts which were done by them while acting or purporting to act in discharge of their official duties. It was also argued by him that even if they are public servants they do not fall in the category of public servants to which the protection of Section 197, Cr. P.C. has been extended. Learned Counsel for the accused-opposite parties at the time of arguments conceded that the appointing authority of Nebu Lal, Accountant, is the Accountant General and as such even though he is an employee of the Central Government he is not entitled to the benefit of Section 197, Cr. P.C. The observations made in Nagraj v. State of Mysore show that if the public servant is removeable from his office without the sanction of the State Government or the Central Government no sanction under Section 197, Cr. P.C. is necessary. In that case the accused was a Police Inspector. Since he could be dismissed from service by the Inspector General of Police, it was held that sanction for his prosecution under Section 197, Cr. P.C. was not necessary. It seems that in view of this legal position and the fact that Nebu Lal, Opposite Party No. 3, can be removed from service by the Accountant General, learned Counsel for the opposite parties made the aforesaid frank admission. The contention of the learned Counsel for the revisionist therefore, is acceptable so far as Nebu Lal accused is concerned.
8. There can be no doubt that the appointing authority of the Executive Engineer of the public Works Department is the State Government. He cannot be removed from service without the sanction of the State Government. Vidya Sagar Singh accused, therefore, falls in the category of public servant to whom the first part of Section 197, Cr. P.C. applies.
9. The point which remains to be seen in this connection is if the alleged offences were committed by him while acting or purporting to act in the discharge of his official duties. The interpretation of the words "committed by him while acting or purporting to act in the discharge of his official duty" has been made in several cases and some difficulty is always felt in the actual application of the principle underlying the section. These words are not restricted only to those cases which purport to be done in good faith. If they have been ostensibly done in execution of duty the section will apply even if the public servant has done it with a dishonest intention or negligently. The action may be in excess of the duty or in the absence of such duty. In Amrik Singh v. State of Pepsu the following observations were made in para 8:
The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1), Cr. P.C., nor even every act done by him while he is actually engaged in the performance his official duties : but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.
In this reported case the charge was of misappropriation by a public servant under Section 409, I.P.C. The question raised was whether sanction required under Section 197, Cr. P.C. was necessary. It was held that it will depend upon the facts of each case. If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary, but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required. It was also held in this case that sanction in a case of criminal misappropriation will depend on whether the acts complained of hinged on his duties as a public servant. If they do then sanction is requisite but if they are unconnected with such duties then no sanction is necessary.
10. In Matajog Dobey v. H.C. Bhari the following observations were made in para 17 regarding the aforesaid expression:
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. No question of sanction can arise under Section 197 unless the act complained of is an offence : the only point to determine 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 or! the merits.
What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.
It was also held in this case that the use of criminal force alleged against the accused related to the performances of their official duties and thus it was an obvious case for sanction under Section 197, Cr. P.C.
11. In Somchand Sanghvi v. Bibhuti Bhusan Chakarvarty it was held that where sanction under Section 197, Cr. P.C. is necessary for the prosecution of the alleged offender and process has been issued against him without such sanction it has to be quashed. It was also held in this case that the Court should generally confine itself to the allegations made in the complaint while considering whether Section 197, Cr. P.C. would apply; but it does not mean that the Court need not look beyond the form in which the allegations have been made and it is incompetent to ascertain for itself their substance. After laying down these principles the following observations were made in para 7 which are relevant for purposes of the case:
Here the substantial allegation is that the respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000/- to Manoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount Assuming that the allegation is true all that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth. It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. For this reason the sanction of the appropriate authority for the respondent's prosecution was necessary under Section 197, Cr. P.C.
12. In the present case also the substantial allegation is that Vidya Sagar Singh opposite party No. 2, along with Nebu Lal, opposite j party No. 3, did not inform the complainant about the acceptance of his tenders in time and wrongly forfeited the amount of secutiry deposited in connection with the tenders submitted by the revisionist. The facts narrated in the complaint and the statement of the complainant recorded under Section 200, Cr. P.C. reveal that the Executive Engineer invited tenders; he was to accept the tenders and communicate the acceptance and was authorised to forfeit the amount in case of default by the tenderer. The allegation of concealment, fabrication of false evidence, cheating and forgery etc. appears to have been made in connection with the same work. The allegation that opposite parties asked him to pay money in the same proposition as other contractors make payment, is also connected with the deposit and refund of the security of the tenderer. It is, therefore, clear that the acts complained of related to the discharge of the official duty of Vidya Sagar Singh, Executive Engineer, opposite party No. 2. Sanction under Section 197, Cr. P.C., therefore, appears necessary for prosecution of Vidya Sagar Singh, Executive Engineer, opposite party No. 2, on the basis of the allegations made in the complaint.
13. Learned Counsel for the revisionist, on the other hand, argued that the offences alleged in the complaint were not related to the discharge of his official duty and he is not entitled to the prosecution under Section 197, Cr. P.C. In support of this argument he placed reliance upon six cases. On of them is H. H. B. Gill v. The King AIR 1948 PC 128 : (1948) 49 Cri LJ 503. In this case it was held that in a case of receiving of bride sanction under Section 197, Cr. P.C. is not necessary. In the present case it is not the case of the complainant that Vidya Sagar Singh, opposite party No. 2, demanded or took any bribe in connection with forfeiture of security. This case is, therefore, distinguishable of facts. The second case is P. Arulswami v. State of Madras . It has been held in this case that sanction under Section 197, Cr. P.C. is not necessary if the act complained of is entirely unconnected with the official duty of the public servant. It has been observed above that the acts complained of are related to the discharge of official duty of opposite party No. 2. This case also, therefore, does not help the learned Counsel for the revisionist. The third case is Pukhraj v. State of Rajasthan . In this case the allegation against the Post Master General was that he kicked the complainant and abused him when the complaint was submitting his representation for cancellation of his transfer. It was held that sanction under Section 197, Cr. P.C. was not necessary in such a case. The fourth case is S. B. Saha v. M.S. Kochar . In this case it was held that sanction was not necessary where the public servant is said to have committed an offence under Sections 409/120B, I.P.C. because criminal misappropriation was not committed by the accused while acting or purporting to act in the discharge of their official duty. The fifth case is B. S. Sambhu v. T.S. Krishnaswamy . In this case the Munsif-Magistrate in a letter to the District Judge called an Advocate as "rowdy", "a big gambler" and "a mischievous element". It was held that in a complaint for defamations sanction under Section 197, Cr. P.C. was not necessary because the act complained of has no connection with the discharge of official duty. The sixth case is Mrs. Mary Kutty Thomas v. Mr. Pawar, D.C.P. Zone IV 1983 Cri LJ 1654 (SG). In this case the complainant's husband was arrested for an offence under Sections 307/353, I.P.C. and was subjected to physical assault while in police custody. Some of the acts attributed to the police officer were alleged to have been committed outside the police station. Threats of dire consequences were levelled to the complainant at her residence to pressurise her so that she may not launch the prosecution. A private complaint of ill-treatment was, therefore, filed against the accused, police officer under Sections 323 and 506, I.P.C. It was held that protection of Section 197, Cr. P.C. cannot be extended in respect of accusation made because the act complained of had absolutely no nexus whatsoever with his official duty. All these cases are distinguishable on facts. If the acts complained of are not related to the discharge of official duty, protection of Section 197, Cr. P.C. cannot be given and on this principle the accused were not given the benefit of that provision. But in the present case it has been observed above that the acts complained of are related to the discharge of official duty and the substantial allegation made clearly indicates that the complaint has been filed because forfeiture of security had been ordered by Vidya Sagar Singh, Executive Engineer, opposite party No. 2.
14. It was argued by the learned Counsel for the revisionist that there are allegations of forgery, fabrication of false evidence and attempt to take bribe in the complaint and these acts cannot be held to be related to the discharge of official duty of opposite party No. 2. There is no clear allegation in the complaint that any attempt to take illegal gratification was made by opposite party No. 2. On general allegation that the complainant had to pay what the other contractors make payment does not amount an attempt to take illegal gratification. The allegation of fabrication of false evidence and forgery has been made in connection with sending of notice to the complainant. Notice was sent in discharge of official duty and on the basis of facts disclosed in that complaint it is difficult to hold that these allegations are not related to the discharge of official duty. Vidya Sagar Singh, Executive Engineer, opposite party No. 2 cannot, therefore, be prosecuted without sanction under Section 197, Cr. P.C. and the finding of the learned Sessions Judge about him in this connection appears correct.
15. The revision is, therefore, partly allowed. The order passed by the learned Additional Sessions Judge is modified to this extent that sanction for prosecution of Nebu Lal, opposite party No. 3, is not necessary. So far as Vidya Sagar Singh, Executive Engineer, opposite party No. 2 is concerned the Magistrate cannot take cognizance of the offences against him for want of sanction under Section 197, Cr. P.C. and the order passed by the learned Additional Sessions Judge regarding the prosecution of opposite party No. 2 is confirmed.