Gujarat High Court
Piyeja Mohanbhai Maganbhai & 3 vs State Of Gujarat & on 5 May, 2017
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/SCR.A/760/2010 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 760 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PIYEJA MOHANBHAI MAGANBHAI & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SV RAJU, SENIOR COUNSEL WITH MR VIJAY J SHAH, ADVOCATE for
the Applicant(s) No. 1 - 4
MR MM TIRMIZI, ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, ADDL PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 05/05/2017
CAV JUDGMENT
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1. The present petitioners are the original accused nos. 1 to 4 in Criminal Case No.75/2010 pending before the Chief Judicial Magistrate, Radhanpur. Respondent No.2 is the original complainant who is the proprietor of Nimesh Gas Agency. She has filed the complaint under Sections 465, 467, 471 and 114 of the Indian Penal Code against the petitioners herein who are officers working in different capacities under the Revenue Department/Civil Supplies Department and responsible for enforcing the provisions of the Essential Commodities Act.
2. Before putting out the version of the complainant which is the subject matter of challenge before this Court, facts of a previous complaint filed by the same complainant needs to be set out.
2.1 The Respondent No.2 ( hereinafter referred to as "the complainant") as a proprietor of Nimesh Gas Agency was subjected to checks and inspection by the petitioners (hereinafter referred to as 'the accused") while they had visited the premises pursuant to complaints received that the Gas Agency was indulging in malpractices to enforce the Page 2 of 53 HC-NIC Page 2 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT provisions of the Essential Commodities Act. On 19.07.2005, the accused visited the premises of the Gas Agency and inspected the records of the Gas Agency. After having made entries in the visit book, the accused recorded statements of 64 customers of Bottled Gas. When carrying out the recording of statements of customers, it came to the notice of the complainant later that these officers had recorded statement of one Abdul Barik Abdul Rasul who infact had died on 20.4.1995. Similarly, statement of Memon Faiz Umar, a customer was recorded. After the statement was recorded and signed by accused No.1, alterations were made in the statement of Memon Faiz Umar by the officers with a separate pen to add certain contents. Notices were issued on 29.07.2005 and 29.12.2005 by these officers and the license of the Gas Agency was canceled. The cancellation of licence was challenged before the competent authority which restored the license.
2.2 The complainant made a representation to the higher officers on 8/2/2006 highlighting the harassment that she faced at the hands of the accused. Having failed to get a suitable response, she approached the Randhanpur Police Station and filed a criminal complaint against the present Page 3 of 53 HC-NIC Page 3 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT accused invoking Sections 465, 467, 471 and 120 B and 114 of the Indian Penal Code. An FIR being First Information Report No. 69/2007 was registered. It was her case in the complaint that she had received notices on 29.7.2005 and 29.12.2005; that the officials - accused nos. 1 to 4 had visited her premises on 19.07.2005, signed the visit book at Page No.8 and then proceeded to record statements of 64 customers. Based on this inspection, the license of the Gas Agency was cancelled by an order under the signature of the accused no.1 dated 1/2/2006. Copies of statements when were made available to the complainant under the Right to Information Act showed the fact of recording a statement of a dead person. Similarly in the statement recorded of Memon Faiz, in the 13th line of the statement so recorded, alterations with a different pen were made adding words to suggest that gas cylinders were shown at a price of Rs.400. On reading the alteration, it was evident that such overwriting/alteration was done purposely. It was the case in the complaint No. 69/2007 that the accused, all 4 together, had conspired and abetted to record the statement of a dead person and make alterations in another leading to cancellation of her license causing damage to her reputation. According to her, the accused had, therefore, committed offences under Sections 465, 467, 472, 120B and Page 4 of 53 HC-NIC Page 4 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 114 of the IPC.
2.3 As the complaint so filed was not being dealt with, the complainant approached the High Court as no further action was taken by the police authorities. However, when the High Court was informed that the investigation is in progress and the matter is pending consideration before the District Superintendent of Police, the petition was disposed of. Having waited for sufficient time and finding that her complaint had not seen further course, the complainant approached the Court of the Chief Judicial Magistrate, Radhanpur and lodged the complaint which is the subject-matter of the present petition which was registered as Criminal Case No.75/2010 making the same allegations/accusations and further stating that the police authorities had still not filed a charge sheet though the FIR No. 69/2007 was filed on 1/5/2007. It was her further case that since the accused were government servants, more particularly, the officers of the Revenue Department, the police was shielding the accused. Collector had refused sanction under Section 197 of the Criminal Procedure Code for the accused Nos. 2 to 4 and question of sanction of accused No. 1 was pending before the State. Page 5 of 53 HC-NIC Page 5 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 2.4 In exercise of powers under Section 210(1) of the Criminal Procedure Code, the Magistrate by his order dated 2/2/2010 called for a report on the proceedings of the inquiry from the Police Officer conducting the investigation. Such Report was filed by the Police Authorities on 6/2/2010. The Magistrate based on such report heard the respective parties. The learned advocate for the complainant contended that based on the report, an offence was made out and therefore a Criminal Case be registered and process be issued against the accused. Having examined the police papers and having found that accused had committed an offence which did not come under the purview of discharge of official duties and neither in purported exercise of their official duties, the Magistrate found that alterations in the statement recorded of a customer and recording of a statement of a dead person were intentional and sanction therefore under Section 197 of the Criminal Procedure Code was not necessary. The Magistrate found that the accused were not entitled to the protection of Section 197 of the Cr.PC and therefore ordered issuance of process against the accused for they having committed offences under Sections 465, 467, 471 read with 114 and 120B of the Indian Penal Code. This was done by his Order dated 11/2/2010.
Page 6 of 53 HC-NIC Page 6 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 2.5 It is this order of the Magistrate that has given rise to the filing of the present petition by the accused. Senior Advocate Mr. S.V. Raju with the assistance of Shri Vijay Shah has appeared for the petitioner. Mr. M.M.Tirmizi has appeared for the Respondent No.2 - original complainant and Shri Himanshu Patel, Additional Public Prosecutor has appeared for the State Of Gujarat. Written arguments have been filed on behalf of the petitioners and the Respondent No.2. Before recording the submissions of the learned advocates for the parties, a brief factual picture that unfolds on the pleadings of the respective parties needs to be recorded.
3. The Criminal case No.75/2010 and the impugned order of the Magistrate dated 11/2/2010 is at Annexure A of the Paper Book. At Annexure B is the copy of the FIR No. 69/2007 lodged before the Randhanpur Police Station on 1/5/2007. Order dated 4/07/2006 passed by the Under Secretary, Food and Civil Supplies Department partly allowing the Revision of the Complainant-Respondent No.2 is also on record at Annexure D. A brief perusal of the same indicates that the officers had visited the premises, issued Page 7 of 53 HC-NIC Page 7 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT notice dated 19/7/2005 listing shortcomings in the operations of the Gas Agency of the complainant and asked her to respond. By an order dated 1/2/2006, the District Supply Officer had cancelled the license of the complainant. Collector, Patan by his order dated 27/2/2006 dismissed the appeal. The Revisional Authority by its order dated 4/07/2006 partly allowed the Revision holding that the shortcomings were not major enough to warrant cancellation of license. The authority restored the Agency's licence. At Annexure E is a list produced by the accused to show the past history of the Agency's cases where the Agency has been found to be wanting in compliance of provisions. At Annexure F of the petition is a copy of the report by the District Superintendent Of Police, Patan dated 9/3/2006 addressed to the Judicial Magistrate. The reading of the report indicates that the investigation was carried out pursuant to the complaints of the complainant and it was found that as far as action of the officers in recording the statement of a person who was already dead is concerned, when the statement was recorded there was no identification proof of the person whose statement was recorded and therefore the omission at best could be negligence and for which only departmental action could be warranted and it is not a case to register a criminal Page 8 of 53 HC-NIC Page 8 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT complaint.
3.1 From the order of the High Court passed in Special Criminal Application No.265 of 2006 at Annexure G, it appears that the complainant had approached the High Court with a prayer seeking a direction that the complaint be registered and the investigation be transferred to the Deputy Superintendent of Police. On 6.3.2006, in such proceedings a statement of the Additional Public Prosecutor was recorded that the investigation was pending before the concerned Deputy Superintendent Of Police. On 21.3.2006, on a statement made by the State Counsel that the complaint was received by the PSO Randhanpur on 20.3.2006 and the same was being dealt with, the Court disposed of the petition with an observation that in view of the statement so made no directions need to be given and it will be open for the petitioners to approach the competent authorities including seeking records under Sections 190 and 200 of the Criminal Procedure Code.
3.2 Another petition being Special Criminal Application No.1158/2006 filed by the complainant was withdrawn on 2/5/2007 when a statement was made by the Counsel for the Page 9 of 53 HC-NIC Page 9 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT State that in pursuance of the investigation and the report, complaint has been registered against the accused on 1.5.2007 for the offences under Sections 465, 467, 471 read with Sections 114 and 120B of the Indian Penal Code. The Court further directed that the Investigation be carried out under the supervision of Deputy Superintendent of Police, Patan who will take appropriate steps.
3.3 Annexures I and J are representations of the accused No.1 against the ill treatment and wrongful arrest. Annexure K is a copy of the order dated 2/11/2009 whereby the complainant who had filed a petition challenging the order of the Collector dated 1/5/2009 whereby the Collector had opined that as far as accused 2 to 4 are concerned the allegations in the complaint were such that the officers had carried out their duties in discharge of their official act and therefore sanction under Section 197 of the Criminal Procedure Code was refused.
3.4 This Court had requested the learned counsels for the respective parties and they had agreed to the Court calling for the papers of Special Criminal Application No.1114/2009 from the Registry as the same was disposed of. This was Page 10 of 53 HC-NIC Page 10 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT particularly in light of submissions of Counsel Mr. Raju that once having withdrawn the petition where refusal of sanction was challenged, the complainant now cannot submit that sanction was not necessary. Having perused the papers of the said petition what also comes on reading these is that the complainant had filed Special Criminal Application No.2215/2008 challenging the action of interference of the State authorities in the investigation which was withdrawn on 13/2/2012, when it was stated by the State Counsel that the Learned Magistrate had issued process. The petition was withdrawn with a liberty to make submissions in the pending petition of the Accused, the present one.
3.5 Annexure L is the report of the Deputy Superintendent Of Police Randhanpur dated 6/2/2007 which has prompted the Learned Magistrate to issue process which has given rise to the present proceedings. The contents of the report may therefore require elaboration. The report records that the petitioners visited the premises of Nimesh Gas Agency and recorded statements of 64 customers. They also checked the stock register and the cylinders. Statement of one Abdul Arif Vora was recorded by Bhemabhai Patel, the Deputy Mamlatdar. The report also indicates that a statement of one Page 11 of 53 HC-NIC Page 11 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT Faiz Mohammad Umarbhai was recorded where there were alterations in the statement. The report indicates that on examination of and after having verified the statements recorded by the officers on the day of their visit and also having examined them what was found that one of the customers Abdul Barik Vora whose statement was recorded had in fact died on 20/04/1995. In the statement recorded of Faiz Mohammad Umarbhai, there were subsequent alterations made. The Officer in charge of the investigation therefore recorded a finding that the officers had created false records in order to damage the reputation of the Gas Agency. The report therefore records a finding that on the investigation carried out there was enough material to indicate the complicity of the officers and therefore they were arrested and then a charge sheet was filed. The Collector was informed and sanction was refused for prosecution of the accused - applicants no. 2 to 4 whereas they were waiting to hear from the State Government on the sanction of the applicant - accused No.1. Of course, it has been brought to the notice of this Court that even vis-a-vis the first applicant/petitioner, the State Government refused to grant sanction by an order dated 24/6/2011 and therefore, the order was sought to be placed through an amendment. Page 12 of 53 HC-NIC Page 12 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT
4. An Affidavit-In Reply filed by the complainant - proprietor of the Gas Agency has been placed on record. In her affidavit, while opposing the quashing petition, it has been stated that the order of the Magistrate dated 11/2/2010 is a well reasoned order and he having come to a prima facie opinion that the applicants cannot claim protection under Section 197 of the Code of Criminal Procedure based on the investigation report, the order of Magistrate does not require to be interfered with. The Affidavit further states that it is evident from the order of the High Court dated 20/10/2008 in Miscellaneous Criminal Application No.11489/2008 that the Court had while rejecting the anticipatory bail recorded the findings which would indicate strong complicity of the applicants. The Officers had exceeded their powers. Their defence that they were discharging public duties was not correct. They had forged statements and such an act could not be said to be one in discharge of their official duty and therefore sanction was not necessary. The memos of regular bail applications filed by these accused before the Learned District And Sessions Judge would indicate that they have inter-se tried to shift the burden on each other and therefore all are together jointly and severally responsible for the deed Page 13 of 53 HC-NIC Page 13 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT and therefore the Petition be dismissed.
5. In the background of such facts on record that the Learned Advocates for the respective Parties have made their submissions. Mr. S.V. Raju, Senior Counsel has appeared with Mr. Vijay Shah for the petitioners. Mr. M.M. Tirmizi, learned advocate has appeared for the Respondent No.2 - the original complainant and Mr. Himanshu Patel, learned Additional Public Prosecutor has appeared for the Respondent No.1 - State.
6. Mr. S.V. Raju, learned Senior Counsel appearing for the petitioners submitted as under:
(A). That the officers - petitioners no. 1 to 4 had inspected the Gas Agency in their official capacity. During such inspection, they had recorded statements of 64 customers at the Gas Agency itself and before the statements were recorded an entry was made in the visit book.
Significantly, therefore such exercise was in discharge of their duties as public servants.
(B). That it will be evident from the facts that both the Collector and the State Government have refused sanction to prosecute the present petitioners. No useful purpose would Page 14 of 53 HC-NIC Page 14 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT therefore be served now in carrying forth the proceedings after issuance of such process when the sanction to prosecute has been refused.
(C ) Reading of the FIR also does not disclose commission of any offence. If the ingredients for invoking Sections 465, 467, 471 and 114 of IPC are read, such ingredients are not satisfied. It cannot be said to an act of forgery. At best, even without admitting to be so, it can be negligence and negligence cannot be said to be such that one could be faced with prosecution.
(D) That there is no forgery committed or it cannot be said that false documents are created as envisaged on reading Section 464 with Sections 465 and 471 and therefore such an act cannot be termed as forgery. Reliance has been placed on the decision of the Supreme Court in the case of Mohammed Ibrahim vs State Of Bihar (2009) 8 SCC 751.
(E) As far as the question of recording the statement of a dead person is concerned, the officers present at the Agency recorded the statement of the person who was present. There was no mode or manner or any identification based on which the individual giving the statement could have been identified. The statement was therefore recorded in good faith. There was nothing to show that the person who was giving the Page 15 of 53 HC-NIC Page 15 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT statement was in fact no longer alive. In absence of identification, it cannot be said that there was an element of mens rea in recording such statement which was recorded in good faith. The officers, therefore, cannot be said to have committed any offence if the person whose statement was recorded has been subsequently found to be a dead person. The person who came and identified himself as Abdul Barik Vora had only a gas connection passbook and therefore there was no mode on the basis of which his identity could have been verified.
(F) The exercise of the officers was of recording statements of 64 Customers. Based on such an exercise, the District Supply Officer cancelled the licence of the Gas Agency. The Collector approved the Order. The order of cancellation was therefore not merely based on two statements of these individuals and therefore it cannot be said that such statements were recorded as a means to an end i.e. to cancel the license.
(G) In the alternative, Mr. S.V. Raju submitted that even without admitting it to be an act of negligence, even if it was so, negligence can never be said to constitute an offence. In support of this submission, reliance is placed on the following decisions of the Supreme Court.
Page 16 of 53 HC-NIC Page 16 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT (I) Anil Kumar Bose vs State Of Bihar reported in (1974) 4 SCC 616 (II) N.V.Thayumunavar vs State of Gujarat reported in 2015 Cri.L.J 3905 (III) Radhe Shyam Khemka vs State Of Bihar reported in (1993) 3 SCC 54.
(IV) Ramdev Food Products Pvt Ltd. Vs. State Of Gujarat reported in (2015) 6 SCC 439 (V) Chat Ram vs State Of Haryana reported in (1980) 1 SCC 460 (H). That in view of the provisions of Section 15A of the Essential Commodities Act, prosecution of the applicants/petitioners is barred. Since the Officers were acting in or purporting to act in discharge of their duty they are entitled to be protected from such prosecution when they were only enforcing the provisions of the orders under the Act. Inspection was carried out in pursuance of an order under Section 3 of the Essential Commodities Act and therefore in absence of sanction under Section 15A of the Act the prosecution would not lie.
Page 17 of 53 HC-NIC Page 17 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT (I) In the alternative, it is submitted that sanction under Section 197 of the Criminal Procedure Code is also a must. Now that the sanction is not given, no further action needs to be done and the complaint deserves to be quashed. What is further argued is that the petitioner had filed an application challenging refusal of sanction and the same was withdrawn and therefore the same would not permit the complainant to file a subsequent complaint.
(J). Several authorities have been cited at the bar by Senior Counsel Mr. Raju on the question of sanction under Section 197 of the Criminal Procedure Code. In the submission of Mr. Raju, when the act is one which is done in exercise of their duties or even in purported exercise of duties, the officers are under the protective umbrella of Section 197 of the Criminal Procedure Code. Even if the act is done in excess of their duty or under the colour of their duty, sanction is pre-requisite and without such sanction prosecution must be quashed. What is further submitted by Mr Raju is that the question of sanction is a question which has to be decided at the first instance as looking to the scheme of the Code of Criminal Procedure, Chapter XIV in which the Section falls is titled as "Conditions requisite for Page 18 of 53 HC-NIC Page 18 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT Initiation Of Proceedings". Therefore, the question of sanction is of jurisdiction. Therefore, even in the facts of the case when sanction has been refused, no useful purpose is going to be served to keep the complaint pending now that the sanction is refused.
The authorities cited at the Bar on the question of Section 197 will be dealt with at in the later part of the Judgement.
6. On the other hand, Mr. M.M. Tirmizi has through his submissions invited the attention of the Court to page 32 of the paper book to contend that the learned Magistrate has even otherwise recorded that alterations have been made in several statements in addition to the two in question and therefore apparent intention to harass the complainant was evident. He has annexed such statements to the written arguments. Mr. Tirmizi further contends that reading of paras 7 to 9 of the complaint make the complicity of the petitioners quite evident and are sufficient enough to invoke penal provisions of the Indian Penal Code.
6.1 Mr. Tirmizi has drawn the attention of the Court to the report of the DSP at Annexure L and has contended that Page 19 of 53 HC-NIC Page 19 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT looking to the report, the police investigation has revealed that sufficient and prima-facie case has been made out which shows tampering of statements. In Mr. Tirmizi's submission, therefore, the Court cannot substitute its wisdom and quash the FIR when there is prima-facie case to investigate against the petitioners/accused. According to Mr. Tirmizi, the order dated 30/04/2010 of this Court wherein a contention was recorded that provisions of Section 15A of the Essential Commodities Act has not been followed was obtained without showing to the Court that when prima-facie a case of forgery of records is made out, it cannot be said to be a case where protection under Section 15A of the Act is available. 6.2 Mr. Tirmizi has further drawn my attention to the order dated 20/10/2008 passed in Criminal Miscellaneous Application No.11489/2008 to contend that even this Court had refused to grant anticipatory bail to the applicants. He has taken me through the contents of the order and invited my attention to paragraph 9 of the order in support of his submission that the Court has also opined that the involvement of the petitioners is a subject matter of investigation. The court had in the facts, therefore, refused interim bail and therefore it was a case where even this Court Page 20 of 53 HC-NIC Page 20 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT should not exercise its extraordinary powers of quashing the complaint. After the order was passed, investigation was carried out and the report conclusively points to the complicity of the accused and the report opines that a case is made out. Therefore, the court should not quash the complaint. Mr Tirmizi has also taken this Court through the orders of Regular Bail and pointed out that each officer is shielding himself and blaming the other for the omission or act and therefore apparently all of them are jointly and severally responsible and therefore all them must be prosecuted. Mr. Tirmizi further pointed out that even earlier one Janak Gas Agency had filed a complaint against the officers for the same offences and therefore the Officers/accused are known to commit such alterations in the records or tamper with the records to damage the Agency's reputation.
6.3 Mr. Tirmizi has also relied on a judgement of the Supreme Court in the case of Parkash Singh Badal Vs State Of Punjab (2007) I SCC 1 to support his contention that sanction is not necessary for commission of offence of forgery or tampering. He has also distinguished the judgements cited at the Bar by Mr. S.V. Raju. As discussed the judgements cited Page 21 of 53 HC-NIC Page 21 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT by the respective parties would be dealt with later.
7. Mr. Himanshu Patel, learned Additional Public Prosecutor has taken me through the averments made in the complaint and contended that the reading of the complaint makes out a case that the offences have been made out. Apparent motive/ill intention is writ large on the actions of the officers and therefore such omissions cannot be said to be ones done in exercise of their duty or in purported exercise of their duty or under colour of office so as to grant them the protection under Section 197 of the Criminal Procedure Code. He has also emphasized that if para 8 of the complaint is examined the allegations of tampering with the record are serious and therefore such actions cannot be said to be in exercise of public duty and therefore cannot be ones which would require sanction under Section 197 of the Code of Criminal Procedure.
8. Having heard learned advocates for the respective parties, as discussed earlier, I would now proceed to refer to the judgments cited by Mr. S V Raju, learned Senior Advocate in context of Section 197 of the Code of Criminal Procedure. Page 22 of 53 HC-NIC Page 22 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 8.1 Section 197 of the Code of Criminal Procedure provides that when any person or a 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, no Court shall take cognizance of such offence except with the previous sanction of the Government. It is the submission of the learned Senior Advocate Mr. S V Raju that, in view of the offence, for which the applicants have been charged for has been committed while acting or purporting to act in discharge of their official duty sanction of the Government was a must. It is in line of this submission that Shri Raju has cited the following judgements before this Court:
(I) Virupaxaappa Veerappa Kadampur Vs. State of Mysore reported in AIR 1963 SC 849. This decision is cited to suggest that when an act is done under "colour of duty" and if there is dereliction of duty, such acts can be said to be in exercise of official duty and therefore even though such acts amount to dereliction of duty it must be deemed to have been done under the "colour of office". Mr Raju, therefore, submitted that the acts for which the applicants have been charged for are in the "colour of office" and therefore protection under Section Page 23 of 53 HC-NIC Page 23 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 197 is available to the applicants.
(II) K K Patel and another vs. State of Gujarat and another reported in (2000) 6 SCC 195. According to Shri Raju, as per this judgement, the Supreme Court has categorically held that, when the act is done "on the colour of duty", even if such acts are done under cloak of duty, the act would amount to have been done in dereliction of duty and when on reading of the ingredients of the offences, for which the petitioners are charged of, it would show that such offences could not have been committed unless the public servant was acting under "colour of office".
(III) B Saha and others vs. M S Kochar reported in (1979) 4 SCC 177. This judgment is cited by Mr. S V Raju in support of his contention that, when there is a direct and reasonable nexus between the offence committed and the discharge of official duty, protection under Section 197 is available to the accused. According to Mr Raju, from the facts of the case, this judgment supports the petitioners as on the reading of the complaint, it can be reasonably inferred that there was a direct and reasonable nexus between the offence committed and the discharge of official duty. Page 24 of 53 HC-NIC Page 24 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT (IV) State of Bihar and another vs. P P Sharma I.A.S and another reported in 1992 Supp (1) SCC
222. Attention of the court is invited to paras 62 and 63 of the judgement wherein the Supreme Court quoted Section 197 of the Criminal Procedure Code and section 15-A of the Essential Commodities Act. According to Mr. Raju, even if the offending act was done negligently or in dereliction of duty or in excess thereof, Section 197 and similar provisions operate as a canopy against malicious, vexatious or frivolous accusation or prosecution at the hands of the accused person.
(V) State through C.B.I vs. B L Verma and another reported in (1997) 10 SCC 772. Mr. Raju cited this judgment in support of his submission that once the actions alleged lie within the scope of official duties, cognizance under Section 197 is mandatory. The competent authority for prosecution of such public servant is essential and without previous sanction such cognizance is barred.
(VI) Sureshkumar Bhikhamchand Jain vs. Pandey Ajaybhushan and others reported in (1998) 1 SCC
205. This judgment is cited by learned advocate Mr. Raju to contend that, the plea for bar against cognizance Page 25 of 53 HC-NIC Page 25 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT must be permitted to be taken at the threshold and the usual procedure of leading evidence against the merits of the prosecution case by way of defence evidence is not required to be followed. In other words, according to Shri Raju, when the Court comes to the conclusion that the action or the offences is in discharge of official duties, the statute provides that the question of sanction touches the jurisdiction of the court and must be decided at the threshold.
(VII) State of Orissa through Kumar Raghvendrasingh and others vs. Ganeshchandra Jew reported in (2004) SCC 40. Mr Raju has cited this judgment to contend that, when the alleged act done by the public servant is one which is reasonably connected with the discharge of his official duty, even if he has acted in excess of his duty, when there is reasonable nexus, with the commission of offence, protection under Section 197 is available. This judgement is also cited by Mr. Raju that the question of sanction touches the jurisdiction and therefore in absence of any sanction, a Court is precluded from entertaining the complaint.
Page 26 of 53 HC-NIC Page 26 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT (VIII) Rakeshkumar Mishra vs. State of Bihar and others reported in (2006)1 SCC 557. This also is a judgement cited by Shri Raju in support of his contention that even if there is dereliction of duty, which even if apparent from the facts of the present case, protection under Section 197 is available. The act of which the present petitioners are alleged to have committed would fall within the limits to show that it was reasonably committed in the discharge of its official duty and it was not merely a cloak for doing the objectionable act. (IX) Anjanikumar Vs. State of Bihar and another reported in 2008 (2) GLH 423. This judgment was cited by learned advocate Shri Raju in support of his contention that the term "while acting or purporting to act in the discharge of his official duty" needs to be appreciated in the context of the fact that when the offence is reasonably connected with his official duty sanction is necessary. It is further contended by placing reliance on this judgment that, the facts of the present case would squarely fall under categories enunciated by the Supreme Court in the case of State of Haryana vs. Bhajanlal 1992 Supp (1) SCC 335, therefore, proceedings must be quashed.
Page 27 of 53 HC-NIC Page 27 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT (X) Narayan Hari Tarkunde vs. Yeshwant Raoji Naik reported in 1928 Indian Law Reports (vol 52)
832. This judgment is also cited by learned Senior Advocate to contend that when prima facie it is established that the act was under "colour of duty", protection to obtain sanction is a must.
(XI) D.T Virupakshappa Vs. C Subhash, reported in (2015) 12 SCC 231. According to Shri S V Raju, this authority is cited to support his case that when there is reasonable nexus with the offence and the discharge of official duty, sanction of the government is necessary. (XII) N V Thayumanavar Vs. State reported in 2015 Cri.L.J 3905. This judgment was also cited in support of his contention that when the act amounts to dereliction of duty even then protection under Section 197 is available to the accused.
(XIII) Mohd. Ibrahim and others vs. State of Bihar and another reported in (2009) 8 SCC 751. This judgement has been cited by learned advocate Shri S V Raju in support of his contention that the act / offence which the petitioners are alleged to have committed cannot fall within the parameters of Sections 464 and 465 of the Indian Penal Code, as there was no dishonest Page 28 of 53 HC-NIC Page 28 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT or fraudulent intention to alter a document without lawful authority.
(XIV) Chattaram vs. State of Harayana reported in 1980 1 SCC 460. According to Shri Raju, even if there is negligence in performance of official duty it cannot tantamount to commission of an offence which could invite prosecution. There was no mens rea. In other words, it is the case of the learned advocate Shri S V Raju, by citing these judgments that it is a case where the act / offence that is alleged to have been committed by the petitioners falls squarely within the ambit of an offence which is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Even otherwise, such an act has a reasonable nexus with the nature of duties and therefore when such act has been done even in the "colour of duty", protection under Code of Section 197 is available.
9. As against the judgements cited by Mr. S.V. Raju, Mr. M.M.Tirmizi has relied on the following decisions.
(a) Parkash Singh Badal And Another Versus State Of Punjab and Others reported in (2007) 1 Page 29 of 53 HC-NIC Page 29 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT SCC 1. This authority has been relied upon by Shri Tirmizi to support his contention that when the allegations are in the nature of the accused having forged or tampered and altered records, it cannot be said to regard that the offence has been committed by such public servant while acting or purporting to act in discharge of official duty. In such cases, the official status only provides an opportunity for commission of the offence.
(b) State Of Maharashtra Versus Devahari Devaasingh Pawar And Others reported in (2008) 2 SCC 540. This authority was cited to support the stand that when there are alterations made in records, such an act/omission and an offence cannot be said to have a nexus with the official act. Such an offence has nothing to do with the official discharge of duties and therefore sanction is not necessary. Further, in a case of sanction, it is not necessary that the question has to be decided at the threshold but can be left open to be decided by the Trial Court as it is the Trial Court which is in a better position on assessment of evidence at a later stage to decide whether there is nexus of the offence and the Page 30 of 53 HC-NIC Page 30 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT duty that is performed.
(c ) Shri Tirmizi has also relied upon a judgement rendered by this Court in Criminal Miscellaneous Application No.10869 of 2009 dated 17/3/2017 (Coram: Mr.Justice A.J.Shastri). The judgement was cited in context of the question whether an act can be said to have been done in discharge of official duty. This judgement is also cited to contend that it is for the trial court to scrutinise during the trial to come to a conclusion whether allegations made fall within the ambit of Section 197 of the Criminal Procedure Code.
10. The Respondent No.2 was the proprietor of a Gas Agency. Having received several complaints against the working of the agency, the petitioners who were officers working under the Civil Supplies Department and appropriate Departments landed at the doorstep of the agency on 19/07/2005 to take stock of the records, inspection and check the inventories. After having signed in the visit book, they recorded statements of 64 customers. Based on the inspection so carried out, the petitioner No.1 issued an order dated 1/2/2006 cancelling the license of the Gas Agency. The Order Page 31 of 53 HC-NIC Page 31 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT was confirmed by the Collector on 27/2/2006. The Deputy Secretary by an order dated 4/07/2006 allowed the revision of the Agency and restored the licence.
10.1 The complainant addressed a representation on 8/2/2006 to the authorities complaining against the officers. On 1.5.2007, she lodged a First Information Report at the Randhanpur Police Station. The allegations in the complaint were that the officers while recording statements of customers recorded a statement of one Abdul Barik who was already dead. He had died on 20.04.1995. Similarly, after recording a statement of Faiz Mohammed Umerbhai, alterations were made with a different pen with an intention to falsely implicate the Agency and harm its reputation. 10.2 The complainant approached the High Court as the investigation was not progressing. According to the present petitioners, pending the complainant's petition for a direction to the police authorities to investigate, the DSP, Patan did submit a report on 9/3/2006 stating that at best recording of a statement of a dead person was negligence. The DSP, therefore, opined that departmental proceedings could be launched for this and for that omission it is not advisable to Page 32 of 53 HC-NIC Page 32 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT register an FIR. Petition filed by the complainant was disposed of on 20/3/2006 on a statement made that investigation is in progress and the matter is pending before the DSP. In a subsequent petition at the hands of the complainant being Special Criminal Application No.1158/2006, when a statement was made that the FIR has been registered by the police for offences punishable under Sections 465, 467, 471, 120(B) and 114 of the Indian Penal Code, the petitioner withdrew the petition. 10.3 According to the accused, the petition being Special Criminal Application No. 265/2006 was disposed of on 20/3/2006 without appreciating that factually on 9/3/3006, the DSP, Patan had submitted a report holding that the action/omission wasn't a criminal offence and at best it was a case of negligence and therefore only warranted departmental action. This of course is not correct. Even if the DSP, Patan had opined that only departmental action was warranted the report was only limited to the act of recording a statement of a dead person and therefore it was a case of negligence. Culpability of the officers regarding the second act of making alterations in a statement already recorded was not examined. This report, therefore, would not in any manner help the Page 33 of 53 HC-NIC Page 33 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT petitioners to contend that once the police authorities had opined that at best the case was one which required departmental action, no prosecution could be launched. 10.4 The submissions of the learned Senior Advocate Mr. Raju that the order dated 20/3/2006 in Special Criminal Application No. 265/2006 was passed without placing complete information before the Court and that the concerned police authorities did not apprise the Court of the report of the DSP Patan dated 9/3/2006 wherein the DSP had specifically opined that no case to register an FIR was made out, at first blush appears to be appealing. However, assuming that the report of the DSP, Patan dated 9/3/2006 should have been considered, even then, what the report opines is only on the question of recording of the statement of a dead person. At best, therefore, it opined on the single issue. No opinion was expressed on the tampering of the statement of Faiz Mohammed Umar. That report would not, therefore, in any manner vindicate the stand of the accused. 10.5 Even after the FIR was registered on 1/5/2007, no steps were taken by the police, as per the complainant as a result of which seeking shelter under Section 210 of the Criminal Page 34 of 53 HC-NIC Page 34 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT Procedure Code a complaint was made to the Magistrate. When nudged by the Magistrate in exercise of his powers under Section 210, the DSP furnished his comprehensive report dated 6/2/2010 before the Court. The contents of the report at Annexure L has been briefly set out in the earlier part of the judgement. The DSP has based on the investigation found that there was tampering and therefore having found a prima-facie case that the record was tampered, ordered their arrest. Sanction for petitioners no. 2 to 4 was refused whereas sanction for petitioner no. 1 was pending, which of course now, as the record shows, also has been refused.
11. It is in the background of these facts that the Magistrate has passed the impugned order dated 11/2/2010. The Magistrate in the order has observed that though a complaint was registered in 2007 nothing was done and therefore he was constrained to act in exercise of his powers under Section 210 of the Code and call for report. The Order of the Magistrate when perused would indicate that on going through the papers of the investigation and police papers, the Magistrate found that the tampering of records and falsification cannot be termed to be an act committed by the officers in discharge of official duties or acting or purporting Page 35 of 53 HC-NIC Page 35 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT to act in discharge of their official duties. The officers had conspired and with the help of each other created false records and therefore the protective umbrella of Section 197 of the Code of Criminal Procedure was not available to them.
12. This is where the applicants/petitioners have joined an issue. According to the submission of Mr. S.V. Raju, as reproduced hereinabove, but for being at the Gas Agency in order to carry out an official act or purporting to act in the official capacity, such statements could not have been recorded by the petitioners. Such recording of statements had a direct nexus with the discharge of official duty. The Officers were at the Gas Agency and were carrying out inspection. After such inspection, orders were passed under the Essential Commodities Act cancelling the license of the Respondent No.2. All actions, therefore, done at the Gas Agency were under colour of duty, had a direct and a reasonable nexus with the official duty or was in purported exercise of official duty. Sanction under Section 197 of the Criminal Procedure Code for initiating their prosecution therefore was a pre- requisite.
12.1 What therefore needs to be seen, in light of the case Page 36 of 53 HC-NIC Page 36 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT laws cited by the learned advocates for the respective parties and in light of the facts of the case is that whether the petitioners who are accused of offences under Sections 465, 467, 471, 120(B) read with Section 114 of the IPC can be said to have done so while acting or purporting to act in the discharge of their official duty.
13. Let us now examine the issue based on the case laws as to whether tampering of or falsification of records is an offence committed while acting or purporting to act in discharge of official duties. From the judgements cited at the Bar by Learned Senior Advocate Mr. S.V. Raju, what emerges is that if the offending act is integrally connected with the discharge of duty and is not fanciful or pretended, even if it was done negligently or in dereliction of duty or in excess thereof, Section 197 and similar provisions (like Section 15A of the Essential Commodities Act in the present case) operate as a canopy against malicious, vexatious or frivolous accusation or prosecution at the hands of the aggrieved person.
13.1 In the case of B.M.Saha vs M.S.Kochar (supra) cited by Mr. S.V. Raju, allegations were made against officers of the Page 37 of 53 HC-NIC Page 37 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT Customs Department. The allegation was that while they had seized certain goods, they were holding them in trust in discharge of official duty for being dealt with or disposed of, in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods. According to the appellants, such removal/misappropriation was a part of their official duty, that it was a dereliction of duty and reasonably connected with discharge of official duty. The Supreme Court observed that the words " any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty" are capable of a narrow as well as a wide interpretation. If the words are construed narrowly, the section would be rendered sterile. In the wider sense, these words will take under its umbrella every act constituting an offence, committed in course of the same transaction in which the official duty is performed or purports to be performed. In sum, the sine qua non for the applicability of the section is that the 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 the office held by him.
13.2 Even in the case of State Of Orissa versus Ganesh Page 38 of 53 HC-NIC Page 38 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT Chandra Jew (supra), the Supreme Court held that the protection under Section 197 has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty. Even if such officer has acted in excess when there is a reasonable connection between the act and the performance, the excess shall not be a sufficient ground to deprive such officer of the protection. The official duty must not be merely a cloak for doing an objectionable act. If the act falls within the scope and range and the quality is such that it falls within the official act, protection of such officer is a must. Even if the act is done in "purported exercise" of official duty the same is protected.
13.3 The case of Rakesh Kumar Mishra versus State Of Bihar and Others (supra) also reiterates the same principle. However, what is further culled out is that merely because an official act is committed, in commission of such an act a public servant would not be entitled to indulge in criminal activities. To that extent, the section has to be construed narrowly and in a restricted manner.
13.4 Through the support of these judgements, it is canvassed Page 39 of 53 HC-NIC Page 39 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT by Mr. Raju that the accused, if in recording the statements of customers at the Gas Agency had recorded a statement of a person who was otherwise dead and also after recording a statement of another customer, made some alterations such act/omission was one which even if not directly concerned with discharge of official duty was reasonably connected or had a direct nexus with the discharge of official duty or was in purported exercise of official duty. At best, it was an act in excess of or in dereliction of duty. In all such circumstances, protection under Section 197 A of the Code of Criminal Procedure was available to the petitioners.
14. As against the judgements cited by Shri Raju, Mr M.M. Tirmizi has relied upon the judgment of Parkash Singh Badal vs State Of Punjab and Others (supra). The Supreme Court reiterating the law on Section 197 and referring to the judgements of Ganesh Chandra Jew and Rakesh Kumar Mishra (supra) observed in context of an offence of cheating that such an offence can by no stretch of imagination by their very nature be regarded as having been committed while acting or purporting to act discharge of official duties. It is the quality of the act that is important. Page 40 of 53 HC-NIC Page 40 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 14.1 The other judgement relied upon was State of Maharashtra versus Devahari Devasingh Pawar and Others (supra). Prosecution in the case was initiated against doctors and technicians of a Government hospital for tampering with the records of the hospital. Relying on the judgement of Romesh Lal Jain vs. Naginder Singh Rana (2006) 1 SCC 294, it was held that each case has to be considered on its own facts. On facts as came up before the Court, the Court observed that protection to such officers of Section 197 was not available.
15. What emerges from these judgements is that each case has to be considered on its own facts. An offence committed when proved to be one which has been committed while acting in discharge of official duties or purporting to act in discharge of duties or one which has a reasonable nexus is protected. The official position must not be used as a cloak to commit a criminal act. If the quality of the act is such that it is criminal and had no direct bearing or was not under colour of office then the protection under Section 197 goes.
16. Having considered the judgements cited at the Bar by both the respective parties and having heard the submissions Page 41 of 53 HC-NIC Page 41 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT made by the learned counsel for both the sides, the question that needs to be addressed is whether the offences committed by the petitioners can be said to be in discharge of official duty?
16.1 In the case of Shambhoo Nath Mishra Versus State Of U.P and others (1997) 5 SCC 326, the Supreme Court referred to the judgement of B.Saha vs M.S.Kochar (supra). In the aforesaid case, a complaint was filed under Sections 409, 420, 465, 468, 477-A against a cashier who after fabricating the signature of the complainant therein withdrew money. The High Court recorded a finding that the act was done in discharge of duties as there was a reasonable connection between the act and discharge of official duties. In this context, while setting aside the judgement of the High Court, the Supreme Court in its order observed as under:
"5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the fake record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably inter linked with the crime committed Page 42 of 53 HC-NIC Page 42 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT in the course of same transaction, as was believed by the learned judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained."
16.2 In the case of Parkash Singh Badal (supra), the Supreme Court has referred to a judgement in the case of P.K. Pradhan versus State Of Sikkim (2001)6 SCC 704. In the case of P.K. Pradhan (supra), the Supreme Court while dealing with the legislative mandate of Section 197 that the offence alleged to have been committed must have something to do, or must be related in some manner, with discharge of official duty, even if it is excess if the needs and requirements establish then it can be said to be done in discharge of official duty and after reviewing the case law, in Para 10 of the Judgement observed as under:
"10. In the case of Matajog Dobey v. H.C.Bhari, 1955(2) SCR 925, a constitution bench of this court clearly laid down that where a power is conferred or a duty is imposed by a statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution because it is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command. The Court was considering in the said Page 43 of 53 HC-NIC Page 43 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT case the allegation that the official authorised in pursuance of a warrant issued by the Income Tax Investigation Commission in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put, the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him causing injuries and for such an act, a complaint had been filed against the public officers concerned. This Court, however, held in that case that such a complaint cannot be entertained without sanction of the competent authority as provided under Section 197 of the Code. The Court had observed that before arriving at a conclusion whether the provisions of Section 197 of the Code will apply, the court must conclude that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
16.3 In the case of Om Prakash and Others vs State Of Jharkhand (2012) 12 SCC 72, the Supreme Court was considering the case of a police officer who had killed a criminal. Considering the law laid down in the cases of State of Orissa and Ganesh Chandra Jew (supra), the Supreme Court in para 32 of the judgement observed as under:
"32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his Page 44 of 53 HC-NIC Page 44 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT office as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it.
It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood." 16.4 In the case of Rajib Ranjan and Others versus R.Vijaykumar (2015) 1 SCC 513, the Supreme Court observed as under:
"18. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the appellant precisely with these observations namely the allegations pertain to fabricating the false records which cannot be treated as part of the appellants normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied. "Page 45 of 53
HC-NIC Page 45 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 16.5 In the case of Inspector Of Police and Anr. vs. Battenapatla Venkata Ratnam and Another reported in 2015 SC 346, the Supreme Court held that fabrication of records etc cannot be termed as an official duty and the question of sanction can be considered at the stage of trial. 16.6 Recently also the Supreme Court considered the case law on Section 197 of the Code of Criminal Procedure in the case of Punjab State Warehousing Corporation versus Bhushan Chander and Another reported in (2016) 13 SCC 44. In the said case, the Supreme Court was considering the case of an employee of a Public Sector Undertaking. The High Court had held that the offences under Sections 467, 468 and 471 were also with one under Section 409 of the IPC and therefore the offences were so intermingled with the discharge of official duty, sanction was necessary. Reversing this stand of the High Court, the Supreme Court held as under:
"22. A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts omission or commission is totally alien to the discharge of the official duty, question of Page 46 of 53 HC-NIC Page 46 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT invoking Section 197 CrPC does not arise. We have already reproduced few passages from the impugned order from which it is discernible that to arrive at the said conclusion the learned Single Judge has placed reliance on the authority in B. Saha's. The conclusion is based on the assumption that the allegation is that while being a public servant, the alleged criminal breach of trust was committed while he was in public service. Perhaps the learned Judge has kept in his mind some kind of concept relating to dereliction of duty. The issue was basically entrustment and missing of the entrusted items. There is no dispute that the prosecution had to prove the case. But the public servant cannot put forth a plea that he was doing the whole act as a public servant. Therefore, it is extremely difficult to appreciate the reasoning of the High Court. As is noticeable he has observed that under normal circumstances the offences under Sections 467, 468 and 471 IPC may be of such nature that obtaining of sanction under Section 197 CrPC is not necessary but when the said offences are interlinked with an offence under Section 409 IPC sanction under Section 197 for launching the prosecution for the offence under Section 409 is a condition precedent. The approach and the analysis are absolutely fallacious. We are afraid, though the High Court has referred to all the relevant decisions in the field, yet, it has erroneously applied the principle in an absolute fallacious manner. No official can put forth a claim that breach of trust is connected with his official duty. Be it noted the three-Judge Bench in B. Saha has distinguished in Shreekantiah Ramayya Munipalli keeping in view the facts of the case. It had also treated the ratio in Amrik Singh to be confined to its own peculiar facts. The test to be applied, as has been stated by Chandrasekhara Aiyar, J. in the Constitution Bench in Matajog Dube which we have reproduced hereinbefore. The three-Judge Bench in B. Saha applied the test laid down in Gill's case wherein Lord Simonds has reiterated that the test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office."Page 47 of 53
HC-NIC Page 47 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT 16.7 In light of the decisions of the Supreme Court it needs to be decided as to whether the offence alleged can be said to be one directly connected with the duty of the petitioners or has a reasonable nexus with the duties that they performed.
17. The averments of the complaint when seen, the allegation is that the officers conspired together. Aid of Section 120(B) is invoked to rope in all. What is alleged is apart from recording of the statement of a dead person, the officers after recording a statement of Faiz Mohammed, made alterations in such a statement with a different pen. The allegation is that they tampered with a statement which was already recorded. The DSP submitted a report to the Magistrate. The Report at Annexure L indicates that the police after investigation and recording statements came to a conclusion of the complicity of the applicants and ordered a charge sheet to be filed. There is a clear finding in the report that there has been tampering with the record. The learned Magistrate based on such a report has come to the conclusion that the protective umbrella of Section 197 of the Criminal Procedure Code is in the facts of the case not available to the petitioners as the offence cannot be said to have been committed in discharge of or in purported discharge of official Page 48 of 53 HC-NIC Page 48 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT duty nor can it be said to have been reasonably connected with the duties or under colour of office. The act or offences for which they are charged for are under Sections 465, 467, 471 read with Section 120(B) of the Indian Penal Code. The act of fabrication or tampering may be a part of the same transaction, however the objectionable action is performed under the cloak of office, whereas the intention was apparent. As is held in the judgments cited by Shri S.V. Raju, it is apparent that when the offence or an objectionable act is under a cloak of authority of office, protection is not available to such a public servant.
18. From the ratio of the judgements, what is culled out is that even while discharging official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part cannot be treated as a part of his official duties and hence provisions of section 197 are not attracted. Looking to the case on hand, when the offence alleged to have been committed is tampering of records such conduct cannot but only amount to a misdemeanor not connected with or while in purported exercise of official duties. Here only the official capacity enabled the accused to carry out inspection and record Page 49 of 53 HC-NIC Page 49 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT statements. Further, under the cloak of such official duty or when such capacity has been used to fabricate records, it cannot be said that the act is under colour of duty, in discharge of official duty or has a nexus with the duty. The contention of learned Senior Counsel Mr. Raju that since the offence is committed while in discharge of official duty or in purported exercise thereof is therefore rejected.
19. It may be noted that for the applicants to enjoy the protective umbrella of Section 197 of Cr.P.C, they must show that the offence was committed in discharge of or in purported discharge of official duty. As seen in the judgements cited above and the discussions therein, it is clear that the question is no more res integra. It is to safeguard malicious prosecution against public officials that the said protection was extended. However, the same cannot become a shield for protecting corrupt or dishonest officials. The alleged indulgence of the officers in cheating, fabrication of records or misappropriation, which is prima facie brought out in the present case, cannot be said to be in discharge of their official duty. There is an exception to the immunity provided under section 197. If a public servant acts under the power of authority but if in reality it is for his own benefit or interest, Page 50 of 53 HC-NIC Page 50 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT then such acts cannot be protected under the guise of immunity. Thus, in the present case, when the applicants have failed to show that how the alleged fabrication of records could in any manner have any relation or nexus with the discharge of their official duties, the protection under Section 197 cannot be extended to them. Moreover, in a case of sanction, it is not necessary that the question has to be decided at the threshold but can be left open to be decided by the trial court as it is the trial court which is in a better position on assessment of evidence at a later stage to decide whether there is nexus of the offence and the duty that is performed.
20. Having said that no protection under Section 197 is available to the petitioners, the Order of the Magistrate dated 11/2/2010 issuing process cannot be faulted. The learned Magistrate has rightly come to the conclusion that the protective umbrella of Section 197 of the Criminal Procedure Code cannot be made available to the applicants. The judgements cited at the Bar to canvass a proposition that the question of sanction is a question of jurisdiction and needs to be decided at the earliest need not be referred to and decided as I am of the opinion that the act or offence alleged to have Page 51 of 53 HC-NIC Page 51 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT been committed does not deserve attention as the petitioners' act does not deserve the umbrella of protection under Section 197 of the Code of Criminal Procedure.
21. Having held that Section 197 of the Criminal Procedure Code would not apply to the case, consequentially even the contention of the petitioners that the action of filing the FIR and investigation violates the provisions of Section 15-A of the Essential Commodities Act also deserves to be rejected. The Order of the Magistrate when appreciated in the background of the complaint and the report dated 6/3/2007 of the DSP, I do not find the case to be one where powers under Section 482 of the Code of Criminal Procedure should be exercised and prosecution be stifled. Prima facie there is no abuse of process of Court to quash the complaint. The act complained of cannot be said to be an administrative lapse or error of judgment so as not to come under the scrutiny of a criminal prosecution. Having gone through the complaint and having examined the allegations set out therein it cannot prima facie said to be one in excess of duty or a mere dereliction of duty or negligence.
22. Special Criminal Application No.760/2010 is therefore Page 52 of 53 HC-NIC Page 52 of 53 Created On Tue Aug 15 07:38:26 IST 2017 R/SCR.A/760/2010 CAV JUDGMENT dismissed. It is clarified that the observations made in the present petition are prima facie and are solely in the context of quashing of the criminal proceedings and it would not have any bearing at the time of trial which shall proceed on the basis of the materials available on record and therefore the learned Magistrate shall not in any way be influenced by any of the observations made by this Court relating to the facts of the case as the Court's task was confined to the question whether a `prima facie case' to go to the trial was made out or not. Interim Relief is accordingly vacated.
(BIREN VAISHNAV, J.) divya Page 53 of 53 HC-NIC Page 53 of 53 Created On Tue Aug 15 07:38:26 IST 2017