Madhya Pradesh High Court
Arvind Kumar Bhargava And Ors. vs Lalit Parashar And Anr. on 18 January, 2008
Equivalent citations: 2008CRILJ1294
Author: K.S. Chauhan
Bench: K.S. Chauhan
ORDER K.S. Chauhan, J.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure by petitioners/accused persons being aggrieved by the order dated 17-1-2005 passed by Judicial Magistrate First Class, Gadarwara in Complaint Case No. 770/2000, whereby the application preferred by them under Section 50(2) of the M. P. Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999 has been rejected and also against taking of cognizance under Section 294, 452, 392, 500 and 506/34 of I. P. C. against them on 14-12-2000.
2. The facts of the petition are that the petitioners Nos. 1, 2 and 3 are the Manager, Recovery Officer (retired) and Supervisor of Bhumi Vikas Bank, Kareli, District Narsinghpur. At the relevant time, the petitioners Nos. 1 and 3 were posted at Kareli whereas the applicant No. 2 was posted at Narsinghpur. In the year 2000, there was immense pressure from the Chairman and Registrar of Co-operative Societies and Collector for initiating recovery proceedings in all the cases pending under Sections 23 and 26 of the M. P. Sahkari Krishi Aur Gramin Vikas Bank, Adhiniyam, 1999. One letter was written on 9-5-2000 by Commissioner, Co-operative Societies, Bhopal to Deputy Registrar, Co-operative Societies informing that within 30 days from the receipt of the letter all the legal cases pending in the Bank should be completed. In pursuance of this letter the Registrar-Co-operative Societies, Madhya Pradesh vide his letter dated 24-11-2000 appointed various public servants of the Bank to act as a Sales Officer under the provisions of Section 35 of Adhiniyam, 1999. In delegation of the powers, Manager of Jila Sahkari Krishi Aur Gramin Vikas Bank Maryadit, Narsinghpur, in the month of June 2000 constituted a team to go to Kareli for the recoveries. This fact is clear from the certificate given by the Manager on 8-9-2004 that the respondent No. 2 Smt. Sumanlata Parashar took a loan to purchase a tractor from the Bank. She could not pay the installments, therefore, the notices were given to her in spite of she did not pay an amount of Rs. 18,730/-. Therefore, under the provisions of Section 15 of the M. P. Sahkari Krishi Avam Gramin Vikas Bank Adhiniyam, 1966 (of the old Act) a distraint order dated 1-6-2000 was issued against her. In furtherance of this distraint order, the Sales Officers also issued last warning to her either to pay the amount of Rs. 19,292/- or to face the distraint proceedings. Thereafter the applicants went to the house of respondent No. 2 and asked to deposit the amount due but the respondents refused to pay and threatened them for dire consequences. The members of the team gave warning to them not to interfere with the confiscation proceedings. After following the procedure they seized a sofa set from the verandah of the house of the respondents on 28-6-2000. Village Kotwar duly signed the seizure memo. Information regarding the seizure of the property was also given to Station House Officer, Aamgaon on the same date. The respondents became annoyed by the action taken by the petitioners. They made the false complaint to police and to Collector, Narsinghpur which were found false. They also raised the dispute under Section 64 of the Societies Act, 1960 which was dismissed by Deputy Registrar, Co-operative Societies vide order dated 4-12-2000 the appeal was also dismissed on 5-12-2000 then they lodged a criminal complaint before Judicial Magistrate First Class, Gadarwara under Sections 294, 452, 392, 500 and 506/34 of the IPC. A criminal case was registered against them on 14-12-2000 and notices were issued. Upon receiving the same, the petitioners moved an application under Section 197, Cr. P. C. as well as under Section 50(2) of the M. P. Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999 praying that they being public servants cannot be prosecuted unless prior sanction is obtained from the Government. This application was dismissed on 5-3-2001. The petitioners preferred a revision against this order but the same was dismissed on 22-11-2001 by Additional Sessions Judge, Gadarwara. Thereafter they preferred M. Cr. C. No. 1006/02 under Section 482 of the Code of Criminal Procedure which was dismissed for want of prosecution on 22-10-2002. Thereafter they also filed M. Cr. C. 2926/03 but the same was dismissed as withdrawn with liberty to file a fresh petition. Thereafter they preferred M. Cr. C. No. 5570/03 under Section 482 of Cr. P. C. This M. Cr. C. was decided on 20-7-2004 whereby petition was dismissed as withdrawn with the liberty to raise plea of acting in good faith in bona fide discharge of their duties. In compliance of this order, the petitioners moved an appropriate application before the trial Court but the same was dismissed vide order dated 17-1-2005. Being aggrieved by that order, this petition has been filed on the grounds mentioned in it.
3. On perusal of record it reveals that respondents No. 1 and 2 lodged complaint against petitioners to the effect that respondent No. 2 Smt. Sumanlata Parashar took loan of Rs. 1,49,000/- for purchasing a tractor in the year 1993 from Bhumi Vikas Bank, Branch Kareli. This loan was to be repaid in 9 equal instalments in 9 years. Each instalment being of Rs. 32,700/-. Most of the amount was paid up to 25-4-2000. The amount of Rs. 16,297/- was outstanding which was to be deposited up to April, 2002. Even then the petitioners came at their house on 28-6-2000 and without giving any notice carried away. T. V., sofa set etc. also used filthy languages, extended threats and defamed them by lowering down their prestige.
4. The evidence adduced by complainants in support of their complaint were recorded and the cognizance under Sections 294, 452, 392, 500 and 506/34 of the I. P. C. was taken against them on 14-12-2000. The petitioners appeared on 30-1-2001 and were released on bail. On the same date, they filed an application under Section 197 of Cr. P.C. which was dismissed on 5-3-2001. The revision was filed against this which was also dismissed. Miscellaneous petitions were also filed as detailed in para 2 and ultimately by order dated 17-1-2005 the application under Section 50(2) of the M.P. Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999 was rejected by the trial Court. Being aggrieved by that order this M. Cr. C. has been preferred to quash the order dated 14-12-2000 and 17-1-2005.
5. Shri Harpreet Singh, learned Counsel for the petitioners argued at length on the basis of documents annexed with the petition mainly contending that the petitioners were public servants and they were bona-fidely discharging their duties at the time of incident. They were recovering the public dues. There was no any personal interest. After being annoyed the respondents have lodged this complaint malafidely against them and the trial Court has committed a grave error in taking cognizance without prior sanction and rejecting their applications under Section 197 of Cr. P. C. and Section 50(2) of the M. P. Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999.
6. On the other hand, Shri A. K. Pare, learned Counsel for the respondents has submitted that the protection of Section 197 of Cr. P. C. cannot be extended to the petitioners as they were not removable from the service by the Government. They were Bank employees and hence such protection cannot be provided to them. He has further submitted that the petitioners have not acted bonafidely because as per agreement the loan was to be repaid in the instalments and they have seized the property before 3 years of the last instalment to be paid. They committed house trespass, used filthy languages, extended threats, lowered down their prestige and thus acted malafidely. Learned Counsel further submitted that some M. Cr. Cs. have already been dismissed previously. The Court has rightly taken the cognizance against them and, therefore, it does not call for any interference.
7. The main point for consideration in this petition is that whether the trial Court has committed any illegality in rejecting the applications under Section 197 of Cr. P. C. and 50(2) of the M. P. Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999 and in taking cognizance of offence against the petitioners. The provisions of Section 190 of Cr. P. C. are as follows:
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class especially empowered in this behalf under Sub-section (2), may take cognizance of any offence.
(a) Upon receiving a complaint of facts which constitute such offence;
(b) Upon a police report of such facts;
(c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.
8. The provisions of Section 197 of Cr.P.C. are as follows:
(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:
[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, whenever 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) 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 trader Clause (I) 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.
9. Learned Counsel for the petitioners submitted that the trial Court ought to have taken the sanction prior to taking cognizance of offences against the petitioners. He has relied on the following decisions rendered by Apex Court:
(i) State of Orissa v. Ganesh Chandra Jew .
(ii) Jaysingh v. K.K. Velayuham and Anr. . The learned Counsel of respondents has submitted that the provisions of Section 197, Cr. P. C. is applicable to the public servants removable by the Government. Since the petitioners were not such employees, therefore, the protection provided under Section 197, Cr. P. C. is not available to them. He has placed reliance on the following decisions rendered by Apex Court:
(i) Manohar Nath Kaul v. State of Jammu and Kashmir ;
(ii) Ramesh Balkrishna Kulkarni v. State of Maharashtra ;
(iii) K. Ch. Prasad v. Smt. J. Vanalata Devi and Ors. ;
(iv) Kailashchandra v. Harbans Singh Chhabra and Ors. 1986 JLJ 499 : 1987 Cri LJ 1423;
(v) Rakesh Kumar Sharma v. Central Bank of India 1990 (1) MPWN SN 21.
It is manifestly clear that before invoking Section 197 of Cr. P. C. two conditions must be satisfied;
(i) The public servant is removable from the office either by the Union of India or by the State Government and not by any lesser authority; and
(ii) He is accused of offence alleged to have been committed while acting or purporting to act in the discharge of his official duty.
10. So far as the present case is concerned, the petitioners are not removable by the Government therefore the protection given under Section 197 of Cr. P. C. is not available to them. The petitioners themselves have frankly admitted in M. Cr. C. No. 5570/ 03 on 20-7-2004 that they do not come in the category of the employees removable from their office, save by or with sanction of the Government. That petition was dismissed as withdrawn therefore the order of the trial Court dated 5-3-2001 and of revisional Court dated 22-11-2001 have become final. Thus, the petitioners are not entitled for the protection of Section 197, Cr. P. C. The learned Counsel for the petitioners further submitted that the petitioners are public servants and, therefore, protected from launching any prosecution against them for the thing done by them in discharging their duties in good faith.
11. On the other hand, learned Counsel for the respondents submitted that the petitioners have not acted in good faith. They have illegally seized their properties, committed house trespass, abused them, criminally intimated and insulted them, therefore, these acts of the petitioners cannot be said to be in the discharge of their public duties.
12. Section 50 of the M. P. Sahakari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999 runs as follows:
(1) Every Officer, employee or person of the State Development Bank or a District Development Bank or an authority exercising or authorized to exercise the powers under this Act or the Rules made thereunder or Under the Co-operative Societies Act, 1960 (No. 17 of 1961) or the Rules or Bye-laws made thereunder shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, 1860 (45 of 1860).
(2) No suit, prosecution or other legal proceedings shall lie against any such officer, employee, person or authority for anything which is in good faith done or intended to be done under this Act.
13. The term "good faith" has been defined in Clause 22 of Section 3 of General Clauses Act, 1897 as follows:
A thing shall be deemed to be done in "good faith" where it is in fact done honestly whether it is done negligently or not. Section 52 of I. P. C. defines the term good faith as follows:
Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. In the light of the aforesaid definitions of good faith, it is to be seen that whether the petitioners acted in good faith or not?
14. It is evidently clear that respondent No. 2 took loan of Rs. 1,49,000/- for purchasing tractor in the month of March, 1993. The loan was to be repaid in 9 equal instalments, each instalment being of Rs. 32,700/-. The amount of Rs. 16,287/- was due which was to be repaid upto April, 2002 but on 28-6-2000 the petitioners went there to recover the entire amount felling which the movable properties of the petitioner were seized. Therefore, in such circumstances without serving the notice on respondents and in pressing them to pay the entire amount on the same date and taking the steps to recover such amount forcibly can not be said to be justified. Apart from this, committing house trespass, abusing filthy languages, criminally intimidating, insulting and lowering down the prestige of the respondents cannot be said to be done in good faith and cannot form the part of their duties. Thus, they did not act in good faith and hence they cannot get the protection of Section 50(2) of the M. P. Sahakari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999. The trial Court has rightly taken the cognizance against them and dismissed their applications under Section 197, Cr. P. C. and 50(2) of the M.P. Sahakari Krishi Aur Gramin Vikas Bank Adhiniyam, 1999, therefore, no interference is called for. This petition deserves to be dismissed.