Karnataka High Court
H. Shivappa vs Sri Puttaswamy And Others on 2 January, 1991
Equivalent citations: 1992CRILJ167, ILR1991KAR1146, 1991(1)KARLJ266
ORDER
1. The sole point to be determined in this Revision Petition filed under Ss. 397 and 398 read with S. 401, Cr.P.C. is : Whether the Judicial Magistrate First Class, Davangere (for short 'the Magistrate') has committed illegality in dismissing under S. 203, Cr.P.C. a private complaint (P.C. No. 19/90) filed by the petitioner against the respondents under S. 200, Cr.P.C. by order dated 23-6-90 on the ground of want of sanction under S. 197, Cr.P.C. to prosecute the respondents after having taken cognizance of the offences under Ss. 170, 166, 415, 417, 416 and 419 all read with S. 34, I.P.C. and thereafter recording the sworn statement of the complainant and two witnesses on 4-6-90 ?
2. Briefly stated, the relevant facts are as under :
(a) Petitioner is an Advocate residing at Davangere. He claims to be an active member and worker of the Cong (I) party and a dedicated co-operator who held the reins of a Co-operative Institution called "Bhadra Sahakara Sakkare Kharkana Niyamith, Doddabathi," (for short 'the Society') from 1974 to 1978 as Vice-Chairman for three years from 1974-1977 and thereafter as Chairman from 1980 till the supersession of the Society by the Government of Karnataka (for short 'the Government') on 18-2-1988. Third respondent is a KAS Officer nominated by the Government as a Member of the Managing Committee (for short 'the M.C.') of the Society and he was functioning as Managing Director of the Society at the relevant time. According to the petitioner, duties of third respondent in his capacity as nominated member and Managing Director of the Society have no nexus with the duties he would have performed KAS Officer had he been posted to any other post in that cadre. After the supersession of the Society on 18-2-1988, the State Government appointed the second respondent, who was then functioning as the Deputy Commissioner of Chitradurga District, as Special Officer of the Society on 20-5-88 under S. 30A of the Karnataka Co-Operative Societies Act, 1959 (for short 'the Act'). In that capacity, he is empowered to exercise all the powers of the MC of the Society. First respondent is an officer in the KAS cadre and he was working as Assistant Commissioner, Davangere Sub-Division at the relevant time. In that capacity, he was appointed as the Returning Officer for the conduct of elections to be held for electing members to the M.C. of the Society :
(b) After the supersession of the Society, petitioners and some others filed Writ Petition Nos. 3549/88, 4155/88, 5872/88 and 1919/89 challenging the supersession order of the Government and appointment of second respondent as Special Officer whose term was extended by one year from 18-2-88 to 18-2-89. Those writ petitions were dismissed by this Court with a direction to hold and complete the elections to the M.C. of the Society by 18-2-90. Thereupon, the petitioner and other writ petitioners filed Writ Appeal Nos. 809/89 and 810/89 which were disposed of on 2-5-89 with a specific direction that election to the M.C. should be completed by 31-10-89 instead of 18-2-90 as directed by the learned single Judge. In the writ appeals, the Special Officer was restrained from admitting any new members and he was directed to prepare a list of defaulters in accordance with the provisions of the Act and the Rules framed thereunder and Bye-laws governing the affairs of the Society and also to exercise the power to disqualify such of the members who are liable to be disqualified as per the provisions of the Act, Rules and Bye-laws and to hold the election to the M.C. before the end of October, 1989. The State Government by its Secretary, Co-operative Department, the Director of Sugars and Additional Registrar of Co-operative Societies in Karnataka and respondents 2 and 3 were the only respondents in the writ appeals. Respondents 1 and 2 in the writ appeals filed Review Petitions in C.P. Nos. 395 and 396/89 seeking review of the order in the writ appeals. The said civil petitions were dismissed on 13-9-89 with the observations that it is open to the Special Officer to disqualify the existing members if they suffer from any disqualification under the Act, Rules and the Bye-laws. Respondents 2 and 3 filed S.L.P. Nos. 12148 and 12149/89 in the Supreme Court and they were dismissed on 5-10-89 there by confirming the directions given by a Division Bench of this Court in the writ appeals. But, without taking any step to hold the election before 31-10-89, respondents 2 and 3 filed I.A. IV on 22-9-89 in the writ appeals requesting for extention of time to hold elections. In the light of the submission made by the Advocate for respondents 2 and 3 on 21-10-89 that steps had been taken for holding the election by issuing notice of election, I.A. No. IV was dismissed on 21-10-89. Calendar of events issued by the first respondent as the duly appointed Returning Officer was published on 19-10-89. Petitioner came to know on 27-2-90 that the first respondent, who was working as Assistant Commissioner, Davangere Sub-Division, was actually appointed a Returning Officer on 21-10-89 by the competent authority, namely, the Director of Sugars and Additional Registrar of Co-operative Societies in exercise of powers vested in him under the Act and R. 14(b)(i) of the Rules. The said fact was not known to any member-voter of the Society till then and, therefore, petitioner and all the member-voters of the Society had believed that respondent No. 1 had been duly appointed as the Returning Officer according to the provisions of law and took part in the election. The calendar of events published by the first respondent bears the date of publication as 14/19 October, 1989 thereby clearly showing that it must have been prepared and published on 14-10-89 or at least prepared on 14th October, 1989 and published on 19th October, 1989. Therefore, the said publication had been made before the first respondent (who) was duly and legally appointed as Returning Officer on 21-10-89. Simultaneously with the issue of calendar of events, respondents 2 and 3 issued a voters' list in which the names of 2331 members had been left out apparently for the reason that they had been disqualified. As per the Rules, second respondent was required to publish the list of disqualified members and thereafter to publish the list of voters. The disqualification of 2331 members was on the ground that they were defaulters. R. 14(a)(1) of the Rules requires that a list of defaulters had to be published and notified 15 days before the date of election as provided under S. 20 of the Act. But, no such list was prepared and published by the first respondent. Nearly 7,000 shareholders-members had been issued show-cause notices on 19-10-89 under Bye-laws 5(ii), 10 and 13 calling upon them to show-cause within 10 days as to why they should not be disqualified. Even before the said expiry of 10 days on 22-10-1989, respondents had excluded them from the list of eligible voters and thereby committed a grave illegality to the detriment of the petitioner by managing to show that majority of his supporters were eliminated from the eligible voter-members;
(c) By Committing the said act and several other acts of omission and commission, the respondents had committed offences under Ss. 170, 166, 415, 417, 416 and 419 all read with S. 34, I.P.C. Therefore, the petitioner filed a private complaint under S. 200, Cr.P.C. against the respondents in the Court of the learned Magistrate on 23-5-90 enclosing to it 21 documents and a list of 8 witnesses requesting the learned Magistrate to take cognizance of the offences committed by the respondents-accused, issue process to them and convict and impose adequate punishment on them in the interest of justice. The said complaint was registered as P.C. No. 19/90. The learned Magistrate, after hearing the Advocate for the petitioner, took cognizance of the offences on 4-6-90 and thereafter recorded the sworn statements of the complainant and two witnesses as P.Ws. 1 to 3. Thereafter, he posted the case for arguments on 18-6-90. After hearing arguments on 18-6-90, the learned Magistrate posted the case for orders on 23-6-90 on which date he passed the impugned order dismissing the complaint under S. 203, Cr.P.C. for want of sanction.
3. Feeling aggrieved by the said order, petitioner has filed this revision on 5-7-90. The prayer made in the revision petition is to set aside the order dated 23-6-90 and to direct the learned Magistrate to proceed with the trial in accordance with law in the interest of justice equity.
4. This Court having ordered issue of notices to the respondents on the point of admission, respondents have entered appearance and have made their submissions. Respondents 1 and 2 are represented by the learned Advocate-General, while the third respondent is represented by Sri N. V. Seshachala.
5. At the time of arguments, Sri S. S. Koti, learned counsel for the petitioner, made a detailed reference to the writ proceedings and also to the contents of the documents produced with the complaint of the petitioner and the revision petition. He contended that : (1) Sanction under S. 197, Cr.P.C. is not required in respect of any of the offences alleged against the respondents-accused; (2) Even if sanction is needed, it is open to the accused to appear before the learned Magistrate and plead that sanction under S. 197, Cr.P.C. is required and, therefore, the complaint is liable to be dismissed; and (3) Conclusion of the learned Magistrate that sanction is required is erroneous.
6. On the other hand, Sri C. Shivappa, learned Advocate-General, appearing for respondents 1 and 2 and Shri N. V. Seshachala, learned counsel for respondent No. 3 argued in support of the impugned order.
7. Quite a good number of decisions noted in the notes of arguments kept in the records are cited by Sri S. S. Koti, learned counsel for the petitioner and Sri C. Shivappa, learned Advocate-General, while Sri N. V. Seshachala, learned counsel for the 3rd respondent, distinguished the decision in S. S. Dhanoa v. Municipal Corporation, Delhi, which was strongly relied upon by Sri S. S. Koti by pointing out that the said decision rendered with reference to the provisions of Ss. 10 and 23 of the Bombay Co-operative Societies Act, 1925 (for short 'the Bombay Act') is inapplicable to the facts of case on hand in view of the deemed provisions of S. 127A of the Act which says that every employees of a co-operative society including sale and recovery officers shall be deemed to be public servants within the meaning of S. 21 of the Indian Penal Code.
8. In the course of reply, Sri S. S. Koti, realising force of the distinction made by Sri N. V. Seshachala submitted that he does not depend upon the law laid down in S. S. Dhanoa's case, . However, he submitted that sanction to prosecute the third respondent is not necessary in respect of the offences alleged against him in the complaint of the petitioner.
9. According to the learned Advocate-General, the complaint allegations would make it clear that the offences alleged to have been committed by the respondents had been committed by them in the course of discharge of their duties as Returning Officer, Special Officer and Managing Director of the Society and that too in the course of the conduct of elections to the M.C. of the society, and, therefore, they cannot be prosecuted without the sanction of the State Government as required under S. 197, Cr.P.C. In support of the said argument, he placed reliance on the following passage in B. B. Mitra's Code of Criminal Procedure, 16th Edn. at page 1123 : "The Election Officer in removing the names from the electoral roll is acting as a Judge within the meaning of S. 19, I.P.C. and cannot be prosecuted without the sanction of the State Government under this Section (S. 197, Cr.P.C.)". The said observations are made on the strength of a decision of a learned single Judge of the Madras High Court in A. Hanumantha Rao v. Kolapalli Lakshmayya, 1937 Mad WN 740, in which it is held that "Where an election officer is charged with removing names from the electoral roll, he must be deemed to be acting as Judge within the meaning of S. 19, I.P.C. and the previous sanction of the local Government is necessary, under S. 197, Cr.P.C. before a Court can take cognizance of an offence against him". Learned Advocate-General also contended that the complaint is rightly dismissed by the learned Magistrate in view of the indemnity provided under S. 127 of the Act which reads as under :
"127. Indemnity : No suit, a prosecution or other legal proceedings shall lie against the Registrar or any person subordinate to him or acting on his authority or the Director of Co-operative Audit or any other person subordinate to him acting on his authority or against the new committee or the co-operative society or the Administrator or the Special Officer appointed under S. 30 or S. 30A in respect of anything in good faith done or purporting to have been done under this Act."
10. After carefully reading more than once the allegations made in the rather lengthy complaint and also equally lengthy impugned order of the learned Magistrate dated 23-6-90, I am constrained to observe that the learned Magistrate has passed the impugned order without bestowing his attention to the provisions of Ss. 200 and 203, Cr.P.C. In my opinion, several observations made by the learned Magistrate in the course of his rather lengthy order are both intelligible and also confusing. He has laboured hard to dismiss the complaint at the very inception after having taken cognizance of the offences and recording the sworn statement of the petitioner-complainant and two witnesses examined on his behalf on the ground of want of sanction without proper application of the law on the point. He seems to be of the erroneous impression that sanction under S. 197, Cr.P.C. was necessary as every one of the respondent-accused was public servant. That was also the trend of the argument of the learned Advocate-General as he submitted that the very description of the official status or position of the respondent-accused in the cause-title of the complaint and also the Revision Petition as Assistant Commissioner, Special Officer and Managing Director respectively, would be sufficient to throw out the complaint at the very inception for want of sanction as required under S. 197, Cr.P.C. as has been rightly done by the learned Magistrate.
10A. In my humble opinion, the law governing the application of the provisions of S. 127 of the Act and S. 197, Cr.P.C. is not so simple and superfluous as was sought to be made out. 11. Before proceeding to refer to the decisions, cited by the learned counsel on both sides, I consider it necessary to point out that the learned Magistrate has observed in paragraph 3 of his order that the points which arose for his consideration are : (1) Whether the complaint proves a prima facie case against the accused in his favour ?; (2) Whether sanction order under S. 197, Cr.P.C. is mandatory to prosecute the accused ?; and (3) To what order ? He has recorded findings in the negative on point No. (1), in the affirmative on point No. (2) and has consequently dismissed the complaint under S. 203, Cr.P.C. for want of sanction.
12. Section 203, Cr.P.C. reads thus :
203. "Dismissal of complaint : If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under S. 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
13. What materials have to be considered at the time of taking a decision on a private complaint under S. 203, Cr.P.C. has been considered by this Court in S. P. Subhan v. State, ILR 1985 Kant 2443. In that case, the Magistrate had dismissed the complaint on two grounds, namely, that the allegations contained in the letter dated 24-11-1982 written by the accused addressed to the Deputy Commissioner, Mysore and a copy of which was forwarded to the Joint Director of Public Instruction at Mysore who was the superior officer of the complainant were made in good faith and the conduct of the respondent was saved under exception 8 to S. 499, I.P.C. The learned Sessions Judge in his revisional order had reached the conclusion assigning elaborate reasons which were in the opinion of this Court just and reasonable that the twin grounds on which the learned Magistrate dismissed the complaint were not legally sustainable and hence the order of dismissal could not be sustained. It is observed in para 8 at page 2446 of the said decision as under :
......... It is well settled that at the stage of taking a decision on a private complaint whether there are grounds to proceed with or not the materials that are to be taken into consideration are the statements on oath, if any, of the complaint and of the witnesses and the result of the enquiry or investigation if any under Section 202 of the Code. No other extraneous matter would come into play including any possible and probable defence for the accused to be taken at the stage of the trial and arises for scrutiny or consideration while making an order under Section 203 of the Code. In that view, as rightly pointed out by the learned Sessions Judge, the learned Magistrate was not right in dismissing the complaint on the two grounds stated supra which would be available for the accused only at the stage of the trial and the learned Magistrate in the absence of the accused should not have deliberated upon these question and made use of them for rendering his order in dismissing the complaint ........."
14. It is clear from the above language of Section 203, Cr.P.C., and the decision that the learned Magistrate can dismiss the complaint if he is of the opinion after considering the statements on oath of the complainant and his witnesses and the result of the enquiry made by him under Section 202, Cr.P.C. that there is no sufficient ground for proceeding and in every such case he has to briefly record his reasons for so doing.
15. In the instant case, the learned Magistrate has chosen to refer in the course of his lengthy order to the sworn statement of the complainant and two witnesses examined on his side. He has also not observed anywhere in the course of his order that the ingredients of the above mentioned offences of which he has taken cognizance on 4-6-90 were not established by the allegations made in the complaint and the statements made on oath by the complainant and his two witnesses and, therefore, there was no sufficient ground for proceeding against any of the accused for any of the said witnesses. On the other hand, he has dilated at length on the question whether the complaint was liable to be dismissed for want of sanction under Section 197, Cr.P.C. I consider it necessary to refer to some of the observations made in the impugned order. After extracting the Head Note portions of the decisions in and in paragraph-10 of the order, the learned Magistrate has chosen to observe in paragraph-11 that the above two rulings are aptly applicable to the case on hand. He has then proceeded to observe that "in the present case also when the accused being employed by the State Government have been taken up to the Bhadra Sugar Factory as Managing Director and Special Officer are considered not as public servants. Likewise, the sanction to prosecute the accused whether require at the stage of preliminary hearing before facing the trial. This very important decision has to be considered in the present circumstances of the case ......". He has observed in the middle of paragraph-11 at typed page Nos. 20 and 21 of the certified copy of the impugned order as under :
"Therefore, they are not protected under colour of duties and they are guilty for the above said offences. In this aspect the above rulings of clearly shows that when accused Nos. 2 and 3 who have been deputed to the above said society they are not placed to be Government servant. I have no other thoughts. But when the accused have published the current of events on 18-10-89 this fact was known to the complainant that the act was as per direction of the High Court - Even when the fact is known to the complainant it is the duty of the complainant to take suitable action against the accused. He has not approached any Civil Court or the other authority for challenging the acts done by the accused under Co-operative Societies Act. After lapse of 7 months he jumped to the criminal court just to drag the accused to the Court ......."
He has then chosen to observe that the complainant is not an ordinary man as he is an Advocate. Having observed at typed page No. 23 that "it is not every offence committed by the public servant required sanction for prosecuting under Section 197(1) of Cr.P.C.", the learned Magistrate has not chosen to examine the said aspect. Instead, he has chosen to record finding in the negative on point No. (1) and in the affirmative on point No. (2) towards the end of paragraph-13 of his order and has consequently dismissed the complaint by observing in the concluding portion of his order in paragraph-14 as under :
"Acting under Section 203 Cr.P.C. complaint filed by the complainant is dismissed for want of sanction.
16. To say the least, the said approach of the learned Magistrate is vitiated by patent illegalities.
17. I have already pointed out that the learned Magistrate has not chosen to refer in the course of his order to the contents of the sworn statements of the complainant and the two witnesses examined on his side on 4-6-90. On the other hand, he has chosen to dismiss the complaint only on the point of want of sanction.
18. Now, I propose to refer to only a few decisions which are both illustrative and instructive for deciding the point mentioned above although reference was made by Sri S. S. Koti, learned counsel for the petitioner and Sri C. Shivappa, learned Advocate-General in the course of their arguments to several decisions. The scope of the order to be passed under Section 203, Cr.P.C. is considered by a 4-Judge Bench of the Supreme Court in Chandra Deo Singh v. Prakash Chandra Bose, . While considering the materials on which the Magistrate has to pass his decision under Section 203, Cr.P.C. it is observed in paragraph-8 at page 1433 as under :
"For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry."
After referring to a number of decisions cited at the Bar in which the question to scope of enquiry under Section 202, Cr.P.C. has been considered, their Lordships have observed towards the end of paragraph-8 as under :
"No doubt, as stated in sub-section (1) Section 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry, which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant."
After analysing the provisions of Section 203, Cr.P.C. it is observed in paragraph-12 at pages 1434 and 1435 as under :
".... the object of an enquiry under S. 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under S. 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he has entitled to consider the evidence taken by him or recorded in an enquiry under S. 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this ....."
Applying the above extracted observations to the facts of the case on hand, I have no hesitation in holding that the Learned Magistrate has dismissed the complaint under section 203, Cr.P.C. without properly understanding the scope and ambit of its provisions.
19. Now, I propose to refer to a decision in which the question of applicability of the provisions of Section 197, Cr.P.C. are considered. A-3 Judge Bench of the Supreme Court has observed in Amrik Singh v. The State of Pepsu, :
"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) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of 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 that case, a Sub-Divisional Officer in the Public Works Department, in the course of his duties to disburse wages to workmen employed in the works, drew the required amount from the treasury and in the course of paying the wages to the employees against their signatures or thumb impressions in the monthly acquittance roll for the month of April, 1951 showed a sum of Rs. 51/- as having been paid to a Khalasi (menial servant), by name Parma for his wages, the payment being vouched by thumb impressions. The case of the prosecution was that there was in fact, no person of the name of Parma, that the thumb impression found in the acquittance roll was that of the appellant himself; that he had included a fictitious name in the acquittance roll, with intent to himself draw the amount, and that by this expedient he had received Rs. 51/- and misappropriated the same, and thereby committed an offence under S. 409, I.P.C. It was held that the accused had received the sum of Rs. 51/- alleged to have been misappropriated as Sub-Divisional Officer and he admitted the receipt of the same. The accused did claim to have paid the amount to Parma and the acquittance roll recorded the payment and there was in acknowledgment thereof a thumb impression as against his name. The relevant observations made in that context are that in order to hold whether sanction for prosecution as required under S. 197(1), Cr.P.C. was necessary, the essential ingredients of the offence under S. 409, Cr.P.C. had to be examined and it is eventually held that sanction under S. 197, Cr.P.C. was required having regard to the facts of that case and, therefore, the conviction of the accused Sub-Divisional Officer are quashed for want of sanction. Reference is made in paragraph 10 of the said decision to an earlier decision of the Supreme Court in Srikantiah Ramayya Munipalli v. State of Bombay, in which the necessity for sanction under S. 197(1), Cr.P.C. when the charge was one of misappropriation under S. 409 was considered. The law laid down in the said decision in extracted in paragraph 10 thus :
"There, the law was laid down in the following terms :
"The section has content and its language must be given meaning. What it says is - 'when any public servant - 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 ....' We have therefore first to concentrate on the word 'offence'.
Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an 'entrustment' and/or 'dominion'; second, that the entrustment and/or dominion was 'in his capacity as a public servant'; third, that there was a 'disposal'; 'and fourth, that the disposal was 'dishonest'. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity."
On the facts, it was held in that case that the several acts which were complained of, were official acts, and that the prosecution was bad for want of sanction."
20. In Matajog Dobey v. H. C. Bhari, , a Constitution Bench of 5-Judges of the Supreme Court has while considering the question : Is the need for sanction to be considered as soon as the complaint is lodged and the allegations therein contained has observed in paragraph 20 at page 50 that "it is not always necessary that the need for sanction under S. 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained." It is further observed in the same paragraph as under :
"...... The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."
21. In K. Satwant Singh v. State of Punjab, a Constitution Bench of the Supreme Court has considered the scope of the words "while acting or purporting to act in discharge of official duty" with reference to the offence of cheating and has observed that the act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of official duty." It is further observed that "where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offence." Reference is also made in the said decision to the above mentioned earlier decisions of the Supreme Court in Amrik Singh's case, and Matajog Dobey's case, . It is also observed by one of the learned Judges (Kapoor, J.) that the evidence of plea under S. 197 and to establish the requisite nexus between the act done by the accused and the scope and extent of his duties was lacking and, therefore, the applicability of S. 197 to the facts of the present case could not be held to have been proved.
22. In B. S. Sambhu v. Krishnaswamy, , a Munsiff-Magistrate in his letter to the District Judge while submitting his remarks against the allegations made by the respondent, an advocate in a transfer petition for transfer of a suit pending in his Court had called the respondent "rowdy", "a big gambler" and "a mischievous element" and on this letter being read in open Court the respondent filed criminal complaint against appellant without the sanction contemplated under S. 197, Cr.P.C. It is held that the act complained of had no connection with the discharge of official duty by the appellant. Hence, S. 197, Cr.P.C. was not in any way attracted.
23. Without multiplying decisions on this aspect of the matter, reference may usefully be made to a recent decision of the Supreme Court in Bakhshish Singh Brar v. Smt. Gurmej Kaur, . The facts of that case are that on a complaint against certain Police Officers, cognizance of the offences was taken under Ss. 302, 323, 149, I.P.C. etc. The trial Court held that it could decide necessity of sanction after gathering materials and evidence. The High Court refused to interfere with the said order of the trial Court in exercise of the inherent power under S. 482, Cr.P.C. The Supreme Court has held that the trial Court's order holding that it could decide the question of sanction after gathering materials and evidence was legal and the High Court's refusal to interfere with the criminal proceedings under S. 482, Cr.P.C. is also proper. The relevant observations made in that context in paragraph 6 at page 260 read as under :
"It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution, that is the rationale behind S. 196 and S. 197, Cr.P.C. But it is equally important to emphasise that rights of the citizens should be protected and no excess should be permitted. "Encounter death" has become too common. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharged of his duties, and whether the public servant has exceeded his limit. It is true that S. 196 states that no cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence."
24. Applying the principles enunciated and the observations made in the decisions referred to above to the facts of the case on hand, I am of the considered opinion that the learned Magistrate was not at all justified in dismissing the complaint under S. 203, Cr.P.C. on the ground of want of sanction under S. 197, Cr.P.C. without examining the necessary ingredients of the above mentioned offences of which he had taken cognizance on 4-6-90 with reference to the allegations made in the complaint.
25. The observations made in the above decisions equally apply to the protective umbrella of indemnity provided to certain category of officers specifically mentioned in S. 127 of the Act. In order to claim the benefit of indemnity under S. 127, respondents have of firstly plead and prove that they are officers of the category mentioned in S. 127 and secondly that the acts of malfeasance and misfeasance attributed to them in petitioner's complaint are done by them in good faith or purported to have been done under the Act. Therefore, dismissal of petitioner's complaint cannot be upheld by resorting to the provisions of S. 127 as argued by the learned Advocate-General.
26. In my opinion, the appropriate course the learned Magistrate could have adopted was to keep that question open to be considered after the accused entered appearance and put forth their defence.
27. Therefore, I am of the opinion that the impugned order is liable to be set aside and the matter has to be remitted back to the learned Magistrate for fresh disposal in accordance with law and in the light of the observations made above.
28. In the result, the Revision Petition is allowed and the impugned order of the learned J.M.F.C., Davangere is set aside and the matter is remitted to back to him with a direction to proceed with the complaint of the petitioner in accordance with law. It is, however, made clear that it is open to the learned Magistrate to consider the question of want of sanction either under S. 197, Cr.P.C. or under S. 127 of the Act if the respondents-accused are advised to take up the defence that the complaint lodged against them is vitiated for want of sanction under any of the said provisions.
29. Petition allowed.