Punjab-Haryana High Court
N.K. Mittal vs Dilawar Singh on 20 February, 2008
Equivalent citations: 2008CRILJ2309
ORDER Vinod K. Sharma, J.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure for quashing of criminal complaint and further proceedings for want of sanction under Section 197 of the Code of Criminal Procedure.
2. In the complaint filed under Sections 166, 167, 217, 218, 465, 466, 468, 469 and 471 of the Indian Penal Code, the respondent-complainant claimed that he was posted as AF and SO Kalayat during the year 1995-1996 whereas the petitioner was posted as DF and SC Kaithal at the relevant time and the petitioner was superior officer of the complainant. It was alleged that the petitioner forged a DO letter bearing No. Steno-96/2460 dated 12-4-1996 addressed and sent to Director of Food and Supplies Department, Haryana, Chandigarh.
3. In pursuance to the D.O. letter accompanying the complaint received against the complainant-respondent therewith, the complainant was charge-sheeted and placed under suspension. In view of reply, the charge-sheet was converted under Rule 8 for minor punishment and accordingly punishment of warning was awarded to him by the Director of Food and Supplies Department, Haryana, Chandigarh. However, in appeal the respondent-complainant was exonerated of the charges levelled against him. After the complainant-respondent was exonerated of the charges levelled against him, he filed a complaint under Sections 166, 167, 217, 218, 465, 466, 468, 469 and 471 of the Indian Penal Code against the petitioner herein alleging therein that document which was the basis for issuance of charge-sheet against him was forged by the petitioner herein and, therefore, he was liable to be prosecuted for the offence referred to above. In support of this, complainant placed reliance on the document attached with the file of the charge-sheet and he examined Inder Singh Malik, Inspector Food and Supply.
4. In the preliminary evidence, the complainant appeared in the witness-box as P.W. 1 and reiterated the allegations levelled in the complaint and on the basis of preliminary evidence, the order summoning the petitioner was passed by the learned Chief Judicial Magistrate, Kaithal. Application moved by the petitioner for dropping the proceedings was dismissed by the learned Chief Judicial Magistrate on 12-10-2007 on the ground that no review was permissible.
5. Learned Counsel for the petitioner contends that the only allegation against the petitioner is that on receipt of complaint against the respondent, he has issued a DO letter on the basis of which departmental enquiry was held against the complainant-respondent. The contention of learned Counsel for the petitioner therefore is that framing of charge-sheet on the basis of a complaint received by superior officer or recommending and framing of charge-sheet against the complainant-respondent is an act which was done by the petitioner in discharge of his official duty for which no proceedings can be initiated against a public servant without prior sanction of the competent authority under Section 197 of the Code of Criminal Procedure which reads as under:
Section 197.--Prosecution of Judges and public servants.--(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government.
(1) [Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.] (2) No Court shall take cognizance of an offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification direct that the provisions of Sub-section (2) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" were substituted.
2. ((3-A) Notwithstanding anything contained in Sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a proclamation issued under Clause (1) of Article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the Court to take cognizance thereon.) (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
6. Mr. D.V. Sharma, learned senior Counsel appearing on behalf of the petitioner contended that in the present case, a complaint has been filed against the petitioner for recommending the prosecution of the accused on the basis of complaint received by him. Thus, the offence against the petitioner is connected with discharge of his official duty. The contention of the learned senior Counsel was that there was a reasonable connection with an act complained of against the accused and thus no cognizance of offence can be taken without sanction under Section 197 of the Code of Criminal Procedure from the competent authority.
7. Learned senior Counsel placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Orissa through Kumar Raghavendra Singh v. Ganesh Chandra Jew 2004 (2) RCR (Criminal) 663 : 2004 Cri LJ 2011 to contend that even if some excess committed by the public servant in discharge of his official duty, he cannot be deprived of protection of Section 197 of the Code of Criminal Procedure. The Hon'ble Supreme Court in the said case was pleased to lay down that a police officer in discharge of his duty may have to use force which would be an offence for the prosecution of which the sanction may be necessary. It is only in the case of acts which do not constitute the part of duty that sanction under Section 197 of the Code of Criminal Procedure would not be required.
8. Learned senior Counsel for the petitioner also contended that only requirement of law is that the Court must form an opinion as to whether there is reasonable connection between the act complained of and discharge of official duty, if the act was done in relation to the duty then the public servant could lay a reasonable claim that he did it in the course of performance of his official duty. The contention of learned senior counsel or the petitioner therefore, was that if this test is applied in the present case, the conclusion is not escapable that the act of the petitioner was in discharge of his official duty as he merely recommended the enquiry.
9. The learned senior Counsel for the petitioner also contended that punishing authority had found the complainant guilty of the allegations. Mr. Bassi, learned Counsel for the respondent contended that the provisions of Section 197 of the Code of Criminal Procedure are not attracted to the present case as the allegations levelled in the complaint against the petitioner are of forgery, the commission of which cannot be said to be in discharge of official duty so as to attract the provisions of Section 197 of the Code of Criminal Procedure.
10. However, I find no force in this contention. The allegations against the petitioner, in fact, are that on receipt of a letter which is alleged to have been forged, the petitioner sent a DO letter to higher authority for holding an enquiry against the complainant and thus, alleged act was out come of performance of his official duty and had direct connection with the same.
11. Mr. Bassi learned Counsel for the complainant-respondent thereafter by placing reliance on the judgment of Hon'ble Supreme Court in the case of Matajog Dobey v. H.C. Bhari contended that the proceedings pending in the Court below cannot be ordered to be quashed for want of sanction, as it is not always necessary that need for sanction under Section 197 of the Code of Criminal Procedure is to be considered as soon as the complaint is lodged on the allegations contained therein. At the relevant stage, the Court can always consider this question. However, this plea cannot be accepted in view of the judgment in Matajog Dobey (supra) wherein, Hon'ble Supreme Court has laid down as under:
It is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. 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.
12. Thus, it would be seen that the Hon'ble Supreme Court has been pleased to laid down that the Court has to consider the question of sanction, in case, the complaint and proceedings are barred for want of sanction and this Court can always quash the same in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure as continuation of proceedings in absence of sanction would be nothing but misuse of the process of the Court.
13. Learned Counsel for the respondent contended that in the present case, the allegations against the petitioner are that of forgery and, therefore, sanction under Section 197 of the Code of Criminal Procedure would not be attracted. In support of this contention, reliance has been placed on the judgment of Hon'ble Supreme Court of India in the case of State of H.P. v. M.P. Gupta 2004 (1) RCR 197 (Criminal) : AIR 2004 SC 730 contends that wherein the Hon'ble Supreme Court was pleased to lay down as under:
Above views are reiterated in State of Kerala v. Padmanabhan Nair . Both Amrik Singh 1955 CriLJ 865 (supra) and Shreekantiah 1955 CriLJ 857 (supra) was noted in that case. Sections 467, 468 and 471, I.P.C. related to forgery of valuable security, Will etc. forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code, is therefore, no bar.
14. On a consideration of the matter. I find no force in this contention. The judgment relied upon by the learned Counsel for the respondent has no application to the facts of the present case. The Hon'ble Supreme Court of India in the case of State of H.P. v. M.P. Gupta AIR 2004 SC 730 (supra) approved its judgment rendered in the case of State of Kerala v. Padmanabhan Nair as referred above.
15. The Hon'ble Supreme Court of India has clearly laid down that an act which is not connected with official duty of an officer does not attract the provisions of Section 197 of the Code of Criminal Procedure. However, in the case in hand, the allegations levelled against the petitioner arise in discharge of his official duty and the recommendation for prosecuting the subordinate and launching departmental proceeding cannot be said to be an act, not connected with the discharge of official duty so as to have the benefit of the judgment relied by the learned Counsel for the respondent.
16. In the instant case, it may be noticed that in pursuance to the complaint received by the petitioner against the respondent-complainant on the basis of which a DO letter was addressed to the higher authority, which is alleged to have been forged, the petitioner merely recommended therein the holding of enquiry against the respondent. The complaint therefore, cannot be entertained before obtaining sanction from the competent authority as envisaged under Section 197 of the Code of Criminal Procedure.
17. It may also be noticed that Section 197, Cr.P.C. nowhere gives protection to a public servant against prosecution who commits some illegal act not connected with discharge of his duty as the provisions are only a safeguard against the frivolous prosecution of the public servant, so that they can perform their duties without fear. In case, sanction is applied for to prosecute a public servant, the competent authority has to apply its mind to find out if the allegations against the public servant are of such nature which require his trial or allegations are frivolous with a motive to harass him.
18. In the present case, as the allegation alleged against the petitioner are directly connected with the discharge of his official duty, therefore, the cognizance of the complaint made by the respondent cannot be taken without sanction from the competent authority. Thus the complaint and subsequent proceedings arising therefrom are liable to be quashed.
19. For the reasons stated above, this petition is allowed and the criminal complaint pending in the Court of Chief Judicial Magistrate, Kaithal (Annexure P-1), summoning order dated 7-9-2001 (Annexure P-2) and subsequent proceedings arising therefrom are ordered to be quashed on account of statutory bar under Section 197 of the Code of Criminal Procedure.