Gauhati High Court
Musstt Sayra Begum Laskar & Another vs The State Of Assam And Ors on 23 July, 2012
Author: I. A. Ansari
Bench: I. A. Ansari
Page No. 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
Criminal Revision No. 703 of 2004
Petitioners:
Musstt Sayra Begum Laskar & another
By Advocate :
Mr. P.K. Deka.
- versus -
Opposite party:
1. The State of Assam
2. Samsuddin Laskar
By Advocate:
Mr. KA Mazumdar, Addl. P.P.
BEFORE
THE HON'BLE MR. JUSTICE I. A. ANSARI
Date of hearing : 23.07.2012
Date of judgment : 23.07.2012
JUDGMENT & ORDER
(O R A L)
With the help of this application, made under Section 482 Cr.PC.,
the petitioners, who are accused in CR Case No.223/2004, have sought
for setting aside and quashing of not only the complaint, in question,
which has given rise to the complaint case aforementioned, but also the
order, dated 20.08.2004, passed by the learned Judicial Magistrate, First
Class, Hailakandi, whereby summons have been directed to be issued to
the petitioners as accused.
2. I have heard Mr. P.K. Deka, learned counsel, for the accused-
petitioners, and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor,
Assam.
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3. Before coming to the merit of this revision, it needs to be noted
that the case of the complainant is, in brief, thus: The Central
Government allotted money to various districts, including the district of
Hailakandi, under a scheme known as SGRY and, in terms of the said
scheme, accused No.1, who is a member of the Anchalik Panchayat,
and accused No.2, who is a Junior Engineer, had the duty to utilize the
amount, so sanctioned, during the financial year 2003-2004, upon
getting the scheme approved by appropriate authority. However,
without spending the money, in terms of the sanction so granted, the
accused-persons, in collusion with each other, made false Master Roll
forms by committing forgery and misappropriated the whole amount by
falsifying the accounts and preparing false vouchers. The complainant
and other witnesses came to know about the said acts done by the
accused on visiting the local office, on 15.06.2004, when they inspected
the work, which ought to have been done. In all, the accused persons
have misappropriated a sum of Rs.54,331/- in the manner as indicated
above. The complainant accordingly sought for prosecution of the
accused persons under Sections 167, 407 and 477A read with Section 34
IPC.
4. Having examined the complainant and also upon holding an
enquiry, the learned Court below directed issuance of processes, under
Section 167 and 409 read with Section 34 IPC, against the two accused-
petitioners on the ground that a prima facie case, under the said penal
provisions, had been made out against the accused-petitioners by the
complainant.
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5. Aggrieved by the taking of cognizance of the offences
aforementioned and also by the direction of issuance of processes
against them, the accused-petitioners, as already mentioned above,
have come to this Court with the help of this application made under
Section 482 Cr.PC.
6. It is submitted, on behalf of the accused-petitioners, that the
accused-petitioners are wholly innocent and have been falsely
implicated by the complainant. The allegations made against the
accused-petitioners, according to the learned counsel for the
petitioners, are wholly false and, in such circumstances, the learned
Court below ought not to have directed issuance of processes against
the accused-petitioners. This apart, points out the learned counsel for the
petitioners the accused-petitioners are protected under Section 197
Cr.P.C. and, hence, the learned Court below was not competent to take
cognizance of the offences aforementioned and could not have also
directed issuance of processes against the accused-petitioners in the
absence of requisite sanction having been granted, under Section 197
Cr.P.C., by the State Government.
7. Repelling the submissions made on behalf of the accused-
petitioners, the learned Additional Public Prosecutor has submitted that
the complaint, in question, does make out a prima facie case, as against
the accused-petitioners, of commission of offences of misappropriation
of Government fund, falsification of accounts and/or commission of
forgery in furtherance of their common intention. In such circumstances,
contends the learned Additional Public Prosecutor, neither the
complaint, in question, is bad in law nor the taking of cognizance of
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offences, in question, by the learned trial Court and the direction to issue
processes against the accused-petitioners, can be legally challenged. In
the present case, according to the learned Additional Public Prosecutor,
it was no part of the duty of the accused-petitioners to commit forgery or
falsification of accounts and/or misappropriation of Government fund
and, hence, in such circumstances, the question of obtaining of sanction
from the State Government for prosecution of the accused-petitioners, in
terms of the provisions of Section 197 Cr.P.C., did not arise at all. No case
for quashing of the complaint, submits the learned Additional Public
Prosecutor, has been made out by the accused-petitioners.
8. In the light of the rival submissions, which have been made on
behalf of the parties concerned, let me, now, ascertain the legality or
otherwise of the act of taking of the cognizance of the offences by the
learned trial Court and also the act of directing issuance of processes,
against the accused-petitioners, for their prosecution under the penal
provisions as reflected by the impugned order.
9. While considering the present application, made under Section
482 Cr.PC., it needs to be noted that the law, with regard to quashing of
criminal complaint, is no longer res integra. A catena of judicial decisions
has settled the position of law on this aspect of the matter. I may refer to
the case of R. P. Kapoor v. State of Punjab (AIR 1960 SC 866), wherein the
question, which arose for consideration, was whether a first information
report can be quashed under Section 561A of the Code of Criminal
Procedure, 1898. The Court held, on the facts before it, that no case for
quashing of the proceeding was made out. Gajendragadkar, J,
speaking for the Court, observed that though, ordinarily, criminal
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proceedings, instituted against an accused, must be tried under the
provisions of the Code, there are some categories of cases, where the
inherent jurisdiction of the Court can and should be exercised for
quashing the proceedings. One such category, according to the Court,
consists of cases, where the allegations in the FIR or the complaint, even
if they are taken at their face value and accepted in their entirety, do
not constitute the offence alleged; in such cases, no question of
appreciating evidence arises and it is a matter merely of looking at the
FIR or the complaint in order to decide whether the offence alleged is
disclosed or not. In such cases, said the Court, it would be legitimate for
the High Court to hold that it would be manifestly unjust to allow the
process of the criminal Court to be issued against the accused. From the
case of R.P.Kapoor (Supra), it becomes abundantly clear that when a
look into the contents of a complaint shows that the contents of the
complaint, even if taken at their face value and accepted to be true in
their entirety, do not disclose commission of offence, the complaint shall
be quashed.
10. As a corollary to what has been discussed above, it is also clear
that if the contents of the complaint disclose commission of offence,
such a complaint cannot be, ordinarily, quashed.
11. Laying down the scope of interference by the High Court in
matters of quashing of FIR or complaint, the Supreme Court, in State of
Haryana and Ors. V. Bhajanlal and others, reported in 1992 Supp (1) SCC
335, laid down as follows :-
"102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
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law enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 of the
inherent powers under section 482 of the Code, which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration, wherein such power
could be exercised either to prevent abuse of the process of the
any Court or otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines of rigid formulae
and to give an exhaustive list of myriad kinds of cases, wherein
such power should be exercised :-
(1) Where the allegations made in the First
Information Report or the complaint, even if they are taken at their
face value and accepted in their entirely, do not prima facie
constitute any offence or make out a case against the accused.
(2) Where the allegations made in the First
Information Report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence justifying an investigation
by police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of section 155(2) of the
Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and evidence collected in support of the
same do not disclose the commission of any offence and make
out a case against the accused.
(4) Where the allegation in the FIR do not
constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police
officer without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or the concerned
act (under which criminal proceeding is instituted) to the institution
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and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for wreaking
vengeance of the accused and with a view to spite him due to
private and personal private grudge".
12. In the case of Bhajanlal (supra), the Supreme Court gave a note
of caution on the powers of quashing of criminal proceedings in the
following words :-
"103. We also give a note of caution to the effect that the power
of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of rare
cases; that the Court will not be justified in embarking upon an
enquiry as to the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that the extra
ordinary or inherent powers do not confer an arbitrary jurisdiction
on the Court to act according to its whim or caprice."
(Emphasis is added)
13. It is clear from a close reading of the principles laid down, in the
case of R.P.Kapoor (supra) and Bhajanlal (supra), that broadly speaking,
quashing of a First Information Report or a complaint is possible (a) when
the allegations made, in the First Information Report or the complaint,
even if taken at their face value and accepted in their entirely as true,
do not prima facie constitute any offence or make out a case against
the accused; (b) when the uncontroverted allegations, made in the FIR
or complaint and evidence collected in support of the same, do not
disclose the commission of any offence and/or make out a case against
the accused; and (c) when the allegations made in the FIR or complaint
are so absurd and inherently improbable that on the basis of such
Page No. 8
absurd and inherently improbable allegations, no prudent person can
ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.
14. More importantly, when a complaint discloses commission of an
offence, it cannot, in the absence of any legal bar, prohibit the Court
from taking cognizance thereof and/or directing issuance of process
against the accused named in the complaint, interference with a
complaint is, ordinarily, not permissible in exercise of powers under
Section 482 Cr.P.C., on the ground that the accusations, made in the
complaint, are made in the complaint are false inasmuch as truth or
falsity of the accusations, made in a complaint, are to be determined
either by investigation, when the complaint, is not sent to the police by a
Magistrate, in exercise of his powers under Section 156(3) Cr.P.C., to the
police for investigation or when the complaint is sent to the police for
investigation in terms of Section 156(3) Cr.P.C., then, the truth or falsity of
the accusations, made in the complaint, are to be determined at the
trial.
15. Before proceeding further, it is also imperative to note that a
revisional Court cannot mechanically quash a complaint and/or set
aside an order of issuance of process without taking note of the facts as
mentioned in the complaint, statement of complainant and statements,
if any, of the complainant's witness or witnesses.
16. In the case at hand, apart from Section 409 read with Section 34
IPC, processes have also been directed to be issued under Section 167
read with Section 34 IPC, though Section 167 IPC does not apply to the
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facts of the case at hand inasmuch as there is no allegation, in the
complaint, that the accused-petitioners were charged with the duty to
prepare or translate any document or electronic record or to frame,
prepare or translate such document or electronic record nor are they
alleged to have prepared or translated any document/record in a
manner, which they knew or believe to be incorrect intending thereby to
cause or knowing it to be likely to cause injury to any person inasmuch as
Section 167 IPC applies only to such a case, where a person, being a
public servant, and being, as such public servant, charged with the
preparation or translation of any document, frames or translates that
document in a manner, which he knows or believes to be incorrect,
intending thereby to cause or knowing it to be likely that he may thereby
cause injury to any person.
17. Coupled with the above, the allegations, in substance, as against
the accused-petitioners, are also to the effect that they have falsified
accounts. What is, however, imperative to note is that when a person
falsifies an account, then, he commits an offence, under Section 477A
IPC, if he is a clerk, officer or servant or if, while being employed or acting
in the capacity of clerk, officer or servant, he, willfully and with intent to
defraud, destroys, alters, mutilates or falsifies any book, paper, writing,
valuable security or account, which belongs to or is in the possession of
his employer, or has been received by him for or on behalf of his
employer, or willfully, and with intent to defraud, makes or abets the
making of any false entry in, or omits or alters or abets the omission or
alteration of any material particular from or in. any such book, paper,
writing, valuable security or account.
Page No. 10
18. In the case at hand, while the accused-petitioner No.2, a Junior
Engineer, may be described as an officer, accused-petitioner No.1 does
not fall within the expressions, "clerk, officer or servant" nor can the
accused-petitioner No. 1, who is an elected member of an Anchalik
Panchayat, be described as a person employed or acting in the
capacity of a clerk, an officer or a servant.
19. In the light of what Section 477A IPC embodies, when one turns to
the complaint, in question, it clearly emerges that the allegations, which
the complainant has made, do make out a prima facie case of
commission of an offence, under Section 477A IPC, by accused-
petitioner No.2 inasmuch as the accused-petitioner No. 2, as Junior
Engineer and as an officer, is alleged to have falsified the accounts for
the purpose of enabling the accused-petitioners misappropriate the
Government fund. The allegations, made against the accused-
petitioners, may or may not be true, but in the face of the contents of
the complaint, it cannot be said that no case for criminal breach of trust
under Section 409 IPC and/or falsification of accounts, in terms of the
provisions of Section 477A IPC, has been made out against the accused-
petitioner No. 2; whereas a prima facie case of commission of criminal
breach of trust by the present accused-petitioner No. 1 as a public
servant, can be said to have been made out and, hence, a prima facie
case of commission of offence, under Section 409 read with Section 34
IPC, has been, as rightly concluded by the learned Court below, made
out as against both the accused-petitioners. This apart, and as already
indicated above, a prima facie case of commission of an offence,
under Section 477A IPC, has also been made out against the accused-
petitioner No. 2, who is a Junior Engineer. Furthermore, because of the
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allegations of preparation of false bills and commission of forgery, which
have been made in the complaint, in question, it is also clear that a
prima facie case, under Section 471 IPC read with Section 34 IPC, has
also been made out.
20. Turning to the submission, made on behalf of the accused-
petitioners, that they are protected under Section 197 Cr.P.C. and that in
the absence of any sanction having been obtained for their prosecution
in terms of the provisions of Section 197 Cr.P.C., their prosecution is bad in
law, it is apposite to take note of the provisions contained in Section 197
Cr.P.C.
21. Let me, therefore, also quote, at this stage, relevant provision of
Section 197 Cr. P. C. , which run as follows : "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 a person,
who is employed or, as the case may be, was, at the time of commission
of the alleged offence, employed, in connection with the affairs of the
Union or the central Government; (b) in the case of a person, who is
employed or, as the case may be, was, at the time of commission of the
alleged offence, employed, in connection with the affairs of a State of
the State Government.
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22. From a bare reading of Section 197 cr. P. C. , it is clear that when a
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, no Court shall take cognizance of such offence
except with the previous sanction of the State government or the
Central Government, as the case may be, if the offence is alleged to
have been committed by him, while acting or purporting to act in the
discharge of his official duty.
23. In short, if an act, which constitutes an offence, is allegedly done
by a public servant, who falls within the category of the public servants
mentioned in Section 197 Cr. P. C. , such a public servant cannot be
proceeded against and no cognizance of offence can be taken,
without sanction, as contemplated in Section 197 cr. P. C. if the offence
has been committed by him or the act, constituting the offence, is done
by him, while acting or purporting to act in the discharge of his official
duty.
24. Turning to the question as to whether in the facts and
circumstances of the present case, sanction, under Section 197 Cr. PC.,
was required, it is pertinent to note that sanction, under Section 197 Cr. P.
C, is required only in respect of persons, who are removable from, office
by or with the sanction of the Government. It is not in dispute that the
accused-petitioner No.1, being, at the relevant point of time, a Junior
Engineer, falls within the category of the public servants, who are
covered by the provisions of Section 197 Cr. P. C. However, though the
accused-petitioner No. 1 is a public servant, she, as a member of
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Anchalik Panchayat, is an elected person and can be removed only by
members of the Anchalik Panchayat. She is, therefore, not covered by
the category of persons mentioned in Section 197 Cr.P.C.
25. While considering the scope and ambit of Section 197 Cr. P. C, it
may be borne in mind that the protection, conceived under Section 197
Cr. P. C., is meant to protect responsible public servants from being
dragged to vexatious criminal proceedings for offences allegedly
committed by them, while acting or purporting to act as public servants.
The object, behind Section 197 Cr. PC, is to afford adequate protection
to public servants in order to ensure that they are not prosecuted for
acts done by them in the discharge of their official duties without
reasonable cause and without sanction having been obtained from the
government concerned for such prosecution. This protection has defined
parameters and is limited to such acts, which have been done by a
public servant in the discharge or in the: purported discharge of his
official duties.
To put it differently, the protection, envisaged under Section 197
Cr. PC, is available only when the alleged act done by the puiblic
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, a public servant acts in excess of his duty, yet if there is a
reasonable connection between the act done and the performance of
the official duty, the excess will not deprive the public servant of the
protection available to him under Section 197 Cr. PC. (See Bakhshish
Singh Brar Vs. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257). See also
State of Himachal Pradesh Vs. M. P. Gupta, reported in (2004) 2 SCC 349).
Page No. 14
26. While considering the scope of Section 197 Cr. PC, it is apposite to
recall the law laid down, in H. H. B. Gill and Anr. Vs. The King (AIR 1948 PC
128), wherein the Privy Council held : "a public servant can only be said
to act or to purport to act in the discharge of his official duty, if his act is
such as to lie within the scope of his official duty". This view has been
approved by the Privy Council in Albert West Meads Vs. The King (AIR
1948 PC 156),
27. The acts, which Section 197. Cr. PC, seek to protect, are, thus, acts,
which fall within the scope and range of the official duties of the public
servant concerned. Thus, the protective umbrella of Section 197 Cr. PC
extends to only such acts, which fall within the scope and range of a
public servant's official duty. In other words, for availing protection under
Section 197 Cr. PC, the act of the public servant concerned must not
only fall within the scope and range of his official duty, but that the
offence must be connected with the official duty and not unconnected
therewith. The necessary corollary flowing from this limitation is that when
an act is prohibited to be done by a public servant in the discharge of
official duty, such act of the public servant, though commited during the
discharge of the official duty, will not be protected under section 197 Cr.
PC.
28. From what have been observed above, it is clear that the primary
test for determining if an act, which constitutes offence, is an act, which
can be claimed to have been done in the discharge or purported
discharge of the duty by a public servant, is that when questioned, the
officer must be able to say that whatever has been done by him is in the
discharge or purported discharge of his duties. There is subtle, but
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definite distinction between the expression 'during the discharge of
official duties' and 'in discharge of official duty'. An officer may be on
duty; but what he might have done may be an offence, which will fall
outside his duty. For instance, when a Police officer, on duty, commits
offence of rape, he cannot say that since he was on duty, the act, done
by him, is protected by Section 197 Cr. P. C. The test, therefore, is that the
act, which an accused has allegedly done, must be shown to form part
of his duty, though he may have exceeded his powers, while discharging
his duties.
29. What is, now, of utmost importance to note is that unless an act,
allegedly committed by a public servant of the categories mentioned in
Section 197 Cr. P. C. , amounts to an offence, the question of taking
resort to Section 197 does not arise at all. In other words, an act, which
becomes a subject matter of prosecution and sanction in terms of
Section 197, must amount to an offence, for, unless an act, complained
of, amounts to an offence, the question of taking resort to Section 197
would not arise at all.
30. At the first blush, therefore, the requirement of sanction under
Section 197 is paradoxical. On the one hand, Section 197 protects a
public servant from being prosecuted without sanction if the act, which
constitutes the offence, has been done by him, while acting or
purportedly acting in the discharge of his official duties, it (Section 197)
allows, at the same time, prosecution of such a public servant without
sanction if his act, which constitutes the offence, was done by him, while
not acting in the discharge or purported discharge of his duties.
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31. Though, in either case, an offence is committed by a public
servant, he is, in one case, protected; whereas, in the other case, he is
not. It is in this context that the meaning of the expression 'while acting or
purporting to act in discharge of his official duty' needs to be carefully
analysed and understood, for, it can never be a part of the duty of a
public servant to commit an offence. Thus, if construed too narrowly,
section 197 can never be applied, for, it is no part of the duty of a public
servant to commit an offence. At the same time, if the expression, 'while
acting or purporting to act in the: discharge of his official duty', is
construed liberally, it may vest, in a public servant, absolute power and
make him berserk.
32. There is yet another significant aspect of Section 197 Cr. P. C. ,
which, unless carefully taken note of, may lead to aberrations in the
course of administration of justice. When an act is done, though offence,
honestly in the discharge of public duty, it is protected under Section
197. However, when such a public servant dishonestly acts in the
discharge of his public duty and thereby commits an offence, can he be
still covered by Section 197? The answer to this question has to be in the
affirmative, for, such a dishonest act will be covered by the expression
'purporting to act in the discharge of his official duty'. Thus, not only the
honest discharge of a public servant's duty, which may amount to an
offence, would be protected under Section 197, but also his dishonest;
act, which too may amount to an offence, would be protected if the
act can be construed to be in the purported discharge of his duties. It is,
therefore, necessary that the act of the public servant is examined in
order to test if the act amounts to an offence and if so, whether such an
Page No. 17
act has been done, while acting or purporting to act in the discharge of
his official duties.
33. A classic case, covering the above paradoxical facet of Section
197 Cr. P. C. is a case, wherein a public servant is alleged to have
committed an offence under section 409 IPC. Will such an offence
require sanction for prosecution of the public servant concerned? The
answer to this complex question is not far to seek. While, however,
ascertaining to answer to the question, so posed, what one has to bear
in mind is that in order to constitute an offence under Section 409 IPC,
there has to be, firstly, entrustment or dominion over the property and,
secondly, such entrustment or dominion must be in the capacity of
public servant, thirdly, there must have been disposal of the property,
entrusted to the public servant concerned or under the dominion of the
public servant concerned, and, fourthly, the disposal of such a property
must have been dishonest.
34. Thus, it is clear that the entrustment or dominion over the property
would be in official capacity. Similarly, disposal of the property could not
have but been done in the official capacity of the pubic servant
concerned. If the disposal of the property was innocent, it was an official
act done in discharge of official duty; if the disposal of the property was
dishonest, it was the dishonest doing of an official act, but nevertheless
the act, in question, was in either case official, because the public
servant would not have disposed of the property except while acting or
purporting to act in the discharge of his official duty.
35. To put it differently, if the act was done innocently, it would be an
act done in the discharge of his official duty and if the disposal of the
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property was with dishonest intention or motive, the act would be an act
purportedly done in the discharge of his official duty. Not only in the first
instance, but even in the second instance, (i. e. , in the case of dishonest
disposal of property), the fact remains that the doing of the act by the
public servant was still official, though it was purportedly done in
discharge of official duty. In the second instance too, therefore, when
the public servant is required to be prosecuted for the offence under
Section 409 IPC on the ground that he has dishonestly disposed of the
property, his prosecution would necessitate obtaining of sanction under
Section 197 before cognizance in respect of the offence is taken.
36. To appreciate what has been indicated above, reference may be
made to Shreekantiah Ramayya Munipalli Vs. The state of Bombay, reported
in 1955 (1) SCR 1177, wherein the Supreme Court explained the scope of
Section 197 thus : "Now it is obvious that if Section 197 of the Code of
Criminal Procedure is construed too narrowly, it can never be applied,
for, of course, it is no part of an official's duty to commit an offence and
never can be. But it is not the duty we have to examine so much as the
act, because an official act can be performed in the discharge of
official duty as well as in dereliction of it. 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
Page No. 19
"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 official
capacity. Therefore, the act, complained of, namely, the disposal, could
not have been done in any other way. If it was innocent, it was an
official act; if dishonest, it was the dishonest doing of an official act, but
in either event, the act was official, because the second accused could
not dispose of the goods save by the doing of an official act, namely
officially permitting their disposal; and that he did. He actually permitted
their release and purported to do it in an official capacity, and apart
from the fact that he did not pretend to act privately, there was no other
way in which he could have done it. Therefore, whatever the intention or
motive behind the act may have been, the physical part of it remained
unaltered, so if it was official in the one case it was equally official in the
other and the only difference would lie in the intention with which it was
done: in the one event, it would be done in the discharge of an official
duty and in the other, in the purported discharge of it. "
37. In Amrik Singh Vs. The State of Pepsu, reported in 1955 (1) SCR
1302, too, the Supreme Court summed up the scope of Section 197 in
these words, "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
Page No. 20
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 could 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. "
38. Analyzing the facts of the case, as emerged in Amrik Singh (supra)
and also quoting with approval the observations made in Shreekantiah
Ramayya Munipalli (supra), their Lordships held : "In our judgment, even
when the charge is one of misappropriation by a public servant, whether
action is required under Section 197 (1) will depend upon the facts of
each case. If the acts complained of are so integrally connected with
the duties attaching to the office as to be inseparable from them, then,
sanction under section 197 (1) would be necessary; but if there was no
necessary connection between them and the performance of those
duties, the official status furnishing only the occasion or opportunity for
the acts, then, no sanction would be required. "
39. A Constitution Bench, in Matajog Dubey Vs. H. C. Bhari, reported in
1955 (2) SCR 925, the Supreme Court had occasion to consider the
scope of Section 197. Laying down the test to be adopted to ascertain if
Section 197 was attracted or not, the Constituent Bench, in Matajog
Dubey (supra) held, "Slightly differing tests have been laid down in the
decided cases to ascertain the scope and the meaning of the relevant
words occurring in Section 197 of the Code, "any offence alleged to
have been committed by him while acting or purporting to act in the
Page No. 21
discharge of his official duty". But the difference is only in language and
not in substance. The offence alleged to have been committed must
have something to do, or must be related, in some manner, with the
discharge of official duty. No question of sanction can arise under
Section 197 unless the act, complained of, is an offence; the only point
to be determined is whether it was committed in the discharge of official
duty. There must be a reasonable connection between the act and the
official duty. It does not matter even if the act exceeds what is strictly
necessary for the discharge of the duty, as this question will arise only at
a later stage, when the trial proceeds on the merit. What we must find
out is whether the act and the official duty are so inter-related that one
can postulate reasonably that it was done by the accused in the
performance of the official duty, though possibly in excess of the needs
and requirements of the situation. . . . . . . . . . . . . . . . . . . . . . . . The result of
the foregoing discussion is this, "There must be a reasonable connection
between the act 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."
40. I may also, at this stage, refer to Pukhraj Vs. State of Rajasthan and
Anr. , reported in (1973) 2 SCC 701, wherein the Supreme Court held as
follows:
"While the law is well settled the difficulty really arises in applying
the law to the fact to any particular case. The intention behind the
section is to prevent public servants from being unnecessarily
harassed. The section is not restricted only to cases of anything
purported to be done in good faith, for, a person, who ostensibly
acts in execution of his duty, still purports so to act, although he
Page No. 22
may have dishonest intention. Nor is it confined tp cases, where
the act, which constitutes tlie offence, is the official duty of the
official concerned. Such an interpretation would involve a
contradiction in terms, because an offence can never be an
official duty. The offence should have been committed when an
act is done in the execution of duty or when an act purports to be
done in execution of duty. The test, appears to be not that the
offence is capable of being committed only by a public servant
and not by anyone else, but that it is committed by a public
servant in an act done or purporting to be done in the execution
of duty. The section cannot be confined to only such acts as are
done by a public servant directly in pursuance of his public office,
though in excess of the duty or under a mistaken belief as to the
existence' of such duty. Nor need the act constituting the offence
be so inseparably connected with the official duty as to form part
and parcel of the same transaction. What is necessary is that the
offence must be in respect of an act done or purported to be
done in the discharge of an official duty. It does hot apply to acts
done purely in a private capacity by a public servant Expressions
such as the "capacity in which the act is performed", "cloak of
office" and "professed exercise of the office" may not always be
appropriate to described or delimit the scope of section. An act
merely because it was done negligently does not cease to be one
done or purporting to be done in execution of a duty. "
41. In Rakesh Kumar Mishra Vs. State of Bihar and Ors. , reported in
(2006) 1 SCC 557, the Supreme Court, after having referred to its earlier
decisions on the question of application of Section 197, observed :
"the Section has, thus, to be construed strictly, while determining its
applicability to any act or omission in the course of service. Its
operation has to be limited to those duties, which are discharged
in the course of duty. But once any act or omission has been found
to have been committed by a public servant in the discharge of
his duty, then, it must be given liberal and wide construction so far
its official nature is concerned. "
Page No. 23
42. In the light of the position of law, as discussed above, in respect of
Section 197 Cr.P.C., when one reverts to the case at hand, it deserve to
be noted that as far as accused-petitioner No.1 is concerned, she is an
elected member of an Anchalik Panchayat. She is neither appointed by
the Governor of the State nor can she be removed by the orders of the
Governor. Her election and removal are governed by the Assam
Panchayat Act, 1994, She is, therefore, not covered by the provisions of
Section 197 IPC. Even if it is assumed that accused-petitioner No.2 is a
public servant, who is appointed by the Governor and can be removed
only by an order of the Governor, yet the offences, which he has
allegedly committed under Section 477A and/or 409 IPC and/or Section
471 IPC, would not, in the facts of the present case, attract the bar
imposed by Section 197 IPC it is not the part of the duty of the accused-
petitioners to commit, in the context of the facts and circumstances of
the present case, criminal breach of trust of money entrusted to them for
being utilized for public good. Even if one were to ignore commission of
offence under Section 409 IPC, the fact remains that it is no part of the
duty of a public servant to commit forgery and/or commit falsification of
accounts. Thus, the maintainability of the complaint, in question, cannot
be put to challenge by the accused-petitioners.
43. While, therefore, declining to interfere with the impugned order,
dated 20.08.2004, it is hereby directed that the accused-petitioner No.2
shall be proceeded against under Section 477A IPC too. This apart, both
the accused-petitioners shall be proceeded against for offences under
Section 471 read with Section 34 IPC. The duty to give these directions
are imposed on this Court, as a High Court, under Section 483 Cr.PC.
inasmuch as Section 483 Cr.PC makes it imperative for the High Court to
Page No. 24
exercise its superintendence over the Courts of Judicial Magistrates sub-
ordinate to it so as to ensure that there is, apart from expeditious
disposal, proper disposal of cases by the Magistrates. Proper disposal of
cases would include disposal in accordance with law.
44. When, therefore, a complaint discloses commission of an offence,
it becomes the duty of the High Court to pass, by taking resort to Section
483 Cr.P.C. appropriate orders for correction of the processes so that the
prosecution of an accused takes place in accordance with law.
45. With the above observations and directions, this revision shall stand
disposed of.
46. The interim direction, passed, if any, in this revision, shall
accordingly stand vacated.
47. Send back the LCR.
JUDGE
njdutt/paul
Page No. 25
Page No. 26
16. In other words, when the allegations, made in an FIR, disclose
commission of a cognizable offence, such an FIR cannot, ordinarily, be
quashed by relying upon some other materials on which will depend the
defence of the accused, for, in such cases, truthfulness or otherwise of
the allegations contained in the FIR or the probability of the defence
plea can be determined only by effective investigation or at the trial.
17. However, in Harshendra Kumar D. vs. Rebatilata Kiley and others,
reported in (2011) 3 SCC 351, the Supreme Court has made it clear that it
is not an absolute rule of law that the High Court, while exercising its
jurisdiction under Section 482 CrPC, or, while exercising its revisional
jurisdiction under Section 397 CrPC, cannot, under any circumstances,
look into the nature of public document or such materials, which are
beyond suspicion or doubt, in order to ascertain if the criminal
prosecution should or should not be allowed to proceed. In fact, the
Supreme Court has also made it clear, in Harshendra Kumar D. (supra),
that no greater damage can be done to the reputation of a person
than dragging him in a criminal case. The Supreme Court has, therefore,
held, in Harshendra Kumar D. (supra), that the High Court fell into grave
error in not taking into consideration the uncontroverted documents
relating to the appellant's resignation from the post of director of the
company, which, if looked into, would have made it clear that the
appellant's resignation from the post of director of the company was
much before the cheques had been issued by the company. The
relevant observations, which appear, in this regard, at paragraph 25 and
26, in Harshendra Kumar D. (supra), read as under:
"25. In our judgment, the above observations cannot be read to mean that
in a criminal case where trial is yet to take place and the matter is at the
stage of issuance of summons or taking cognizance, materials relied upon
Page No. 27
by the accused, which are in the nature of public documents or the
materials which are beyond suspension or doubt, in no circumstance, can
be looked into by the High Court in exercise of its jurisdiction under
Section 482 or for that matter in exercise of revisional jurisdiction under
Section 397 of the Code. It is fairly settled now that while exercising
inherent jurisdiction under Section 482 or revisional jurisdiction under
Section 397 of the Code in a case where complaint is sought to be quashed,
it is not proper for the High Court to consider the defence of the accused or
embark upon an inquiry in respect of merits of the accusations. However,
in an appropriate case, if on the face of the documents - which are beyond
suspension or doubt - placed by the accused, the accusations against him
cannot stand, it would be travesty of justice if the accused is relegated to
trial and he is asked to prove his defence before the trial court. In such a
matter, for promotion of justice or to prevent injustice or abuse of process,
the High Court may look into the materials which have significant bearing
on the matter at prima facie stage.
26. Criminal prosecution is a serious matter; it affects the liberty of
a person. No greater damage can be done to the reputation of a person
than dragging him in a criminal case. In our opinion, the High Court fell
into grave error in not taking into consideration the uncontroverted
documents relating to the appellant's resignation from the post of Director
of the Company. Had these documents been considered by the High Court,
it would have been apparent that the appellant has resigned much before
the cheques were issued by the Company."
18. From the law laid down in Harshendra Kumar D. (supra), it
becomes clear that when the High Court is approached for quashing of
a criminal prosecution in exercise of its extra-ordinary jurisdiction under
Section 482 CrPC, or in exercise of its revisional jurisdiction under Section
397 CrPC, the High Court has to bear in mind that criminal prosecution
affects the liberty of a person and there can be no greater damage
done to the reputation of a person than dragging him in a criminal case.
There is, therefore, no absolute bar, on the High Court's power, to take
Page No. 28
into consideration any uncontroverted document, which may have
come on record, for the purpose of arriving at a decision as to whether a
criminal prosecution should or should not be allowed to continue and, if
the Court, on the basis of any public or uncontroverted document,
comes to the conclusion that allowing the criminal prosecution to
proceed, in such a case, would amount to abuse of the process of the
Court, the High Court has the duty to quash such a proceeding.
19. It is, no doubt, true that while exercising its inherent jurisdiction
under Section 482 CrPC, or its revisional jurisdiction, under Section 397
CrPC, where a complaint or FIR is sought to be quashed, it is not proper,
on the part of the High Court, to consider the defence of the accused or
enquire into the correctness or veracity of the accusations made against
the accused. Nonetheless, in appropriate cases, if, in the face of the
documents placed by the accused, which are beyond suspicion or
doubt, the accusations against the accused cannot stand, it would be
perversity of justice if the accused is asked to face trial, for, if it is so done,
it would amount to denial of justice and would be tantamount to
preventing justice from being done. This would be nothing short of
abuse of the process of the Court.
20. Coupled with the above, there is no doubt that an FIR or a
complaint may be quashed if the same is found to be actuated by mala
fide (See. Hira Lal and others -vs- State of Uttar Pradesh, reported in
(2009) 11 SCC 89) or make accusations, which are absurd or inherently
improbable that no reasonable man would accept the allegations
made in the FIR or the complaint, as the case may be, as true and/or in
a case where the FIR and/or the complaint, as the case may be, is
lodged as a counterblast. (See. MN Ojha & others -vs- Alok Kumar
Srivastav & others, reported in (2009) 9 SCC 682). The FIR or a complaint
Page No. 29
may even be quashed when the same is used as a weapon of
harassment or persecution (See. State of Karnataka -vs- L. Muniswamy,
(AIR 1977 SC 1489).
477A. 2[ Falsification of accounts.-- Whoever, being a clerk, officer or servant,
or employed or acting in the capacity of a clerk, officer or servant, willfully, and with
intent to defraud, destroys, alters, mutilates or falsifies any book, paper, writing,
valuable security or account which belongs to or is in the possession of his employer, or
has been received by him for or on behalf of his employer, or willfully, and with intent
to defraud, makes or abets the making of any false entry in, or omits or alters or abets
the omission or alteration of any material particular from or in. any such book, paper,
writing, valuable security or account, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with both.
Explanation.- It shall be sufficient in any charge under this section to allege a general
intent to defraud without naming any particular person intended to be defrauded or
specifying any particular sum of money intended to be the subject of the fraud, or any
particular day on which the offence was committed.]
477. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or
valuable security.-- Whoever fraudulently or dishonestly, or with intent to cause
damage or injury to the public or to any person, cancels, destroys or defaces, or attempts
to cancel, destroy or deface, or secretes or attempts to secrete any document which is or
purports to be a will, or an authority to adopt a son, or any valuable security, or commits
mischief in respect of such document, shall be punished with 1[ imprisonment for life],
or with imprisonment of either description for a term which may extend to seven years,
and shall also be liable to fine.
provided that where the alleged offence, was committed by a person 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
Page No. 30
expression "central government" were substituted. (2) No Court shall take
cogni/ance of any offence alleged to have been committed by any
member of the Armed Forces of the Union while acting or purporting to
act in the discharge of his official duty, except with the previous sanction
of the Central Government. (3) The State Government may, by
notification, direct that the provisions of sub-section (2) shall apply to
such class or category of the members of the Forces charged with the
maintenance of public order as may be specified therein, wherever they
may be serving and thereupon the provisions of that sub-section will
apply as if for the expression "central Government" occurring therein, the
expression "state government" were substituted. (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
Page No. 31
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.
39. Bearing in mind what have been indicated above, it is now of
paramount importance to note that in Sankaran Moitra vs. Sadhana Das
and Ors. (Criminal Appeal no. 330/06), decided on March 24,2006, a
three Judge-Bench of the Supreme Court has considered a large
number of its earlier decisions on the scope and ambit of section 197 Cr.
P. C. The majority view, as expressed through P. K. Balasubramanyan, j, in
Sankaran Moitra (supra), is that in the facts of the case, which their
Lordships had considered, sanction under Section 197 cr. PC was
necessary and cognizance ought not to have been taken by the Court
without requisite sanction. The facts, which gave rise to the case of
Sankaran Moitra (supra)were, if true, quite serious in nature and need to
be, therefore, carefully noted, in sankaran Moitra (supra), the
complainant's case, in the words of P. K. Balasubramanyan, J, may be
described as follows : the husband of Respondent No. 1 herein, met with
his end on 10. 5. 2001. On 12. 5. 2001, respondent No. 1 (hereinafter as the 'complainant') filed a complaint before the deputy Commissioner of Police that she had come to know from the members of the public that while her husband was coming from beliaghata Subhas Sarobar he was beaten to death by the police. She stated that she wanted the post- mortem examination of her innocent husband Robindranath Das to be held in the. presence of a Magistrate and video recording of the portions of the body of her husband whereon it had been hit by the police. She demanded stern punishment for the murderer of her husband. On 28. 5. 2001, she filed a complaint in the court of the Chief Judicial magistrate, Alipore in respect of offences, punishable according to her under Sections 302, 201, 109 read with Section 120-B of the Indian penal Code. In the complaint, she stated that she was a house-wife and, that her husband robindranath Das, was a businessman and a social worker. The antecedents of her husband were above board and he always acted Page No. 32 on the right side of the law. He was also an active supporter of a particular political party. On 10. 5. 2001, the General Election to the assembly in West Bengal was held. Her husband was in-charge of giving food packets to the polling agents of a contesting political party in the booth in C. I. T. office situated at subhas Sarobar (Beliaghata Lake ). When her husband did not turn up for lunch, before she left for casting her vote, she asked her brother to summon her husband for lunch. She was returning at about 1415 hours after casting her vote. While she was returning, a Tata Sumo Car came along, being driven at speed and in that car she found a local resident Anath sitting. When she reached the vicinity of Vivekananda club, she found there assembled, a crowd of local people. When she enquired what had happened, one of those assembled said that the police had severely assaulted her husband with lathi in the lake, her husband had became unconscious, and he had been taken to the doctor in a Tata Sumo Car. On further enquiry, she was told that her husband was assaulted for no reason by the police with lathis on his head near the C. I. T. Office at the Lake instigated by the "bara Babu" of Phoolbagan Thana and Moitra babu, previous "barababu" of Beliaghata thana at about 1400 hrs. Subsequently, she came to learn from various persons of the locality including her brother and her brother-in-law that her husband was talking near the outer gate of the C. I. T. Office area at Subhas sarobar with Mr. S. K. Kundu, the 'barababu' of Phoolbagan Police Station at about 1400 hours. At that point of time, the previous officer-in-charge of Beliaghata Police Station, at the time of the complaint, this Assistant commissioner of E. S. D. (Eastern Suburban division), Calcutta came there by a police jeep and after talking with the Officer-in-charge, phoolbagan Police Station ordered the beating up of her husband and accordingly the Officer-in- charge, Phoolbagan Police Stallion instigated the police constables who were accompanying them to beat her husband and to kill him. Thereupon, a constable, namely, Sudhir Sikdar assaulted her husband with a lathi and her husband tried to run away to save his life but the police personnel chased him. Her husband fell down in the Water at the edgp of the lake. He requested the chasing police personnel not to assault him and he told them that he did not know how to swim. In spite of repeated requests and begging for his life by her husband, the police constable Sudhir Sikdar struck successive blows on the head of her Page No. 33 husband, and other different portions of his body wirt a lathi, as a result of which her husband became unconscious and fell in the lake. Then the police personnel left the place. Her brother and brother-in-law, with the help of others who were eye-witnesses to the incident pulled out her husband from the water. Thereafter, Anath a local person, with the help of others removed her husband in an unconscious; state to the nearby Divine Nursing Home whare the doctor declared him dead. The people seeing the atrocities of the police personnel in attacking an innocent person, became agitated. After a considerable lapse of time, the body of her husband was removed by the pollice from the nursing Home. According to the complainant, the accused persons had no legal authority to kill her husband, an innocent perrson, without any provocation from his end. Hence the accused, in collusion with each other and having a common intention and in pursuance of a conspiracy hatched up among then'eelves, have committed an offence punishable under Sections 302, 120-B, 109 read with Section 34 of the indian Penal Code. They were guilty of violating of the provisions of law and they were liable for exemplary punishment. Accused Nos. 1 and 2 further abetted the murderous assault on the victim by accused No. 3 by instigating him openly to assault and kill her husband. The accused persons had taken advantage of their uniforms and had murdered her husband in a planned manner and hence were guilty of murder. She feels, from the available circumstances, that the death of her husband was the result of a deep rooted conspiracy and to fulfill the vested interest of some interested persons, which would be revealed at the time of trial. She therefore prayed that the learned Magistrate be pleased to take cognizance and issue process against the accused persons and after their appearance pass necessary orders in accordance with law. She arrayed the Assistant Commissioner Sankaran moitra as Accused No. 1, S. M. Kundu, Officer-in-charge, Phoolbagan Police Station, Calcutta as Accused No. 2 and Sudhir Sikdar, a police constable attached to Phoolbagan Police station, Calcutta as Accused No. 3. "
40. It was in the setting of the facts contained in the complaint made as above that the Apex Court, in Sankaran Moitra (supra), considered the question as to whether sanction under Section 197 Cr. PC was imperative and to the question, so posed, their Lordships answered thus :Page No. 34
"15. Coming to the facts of this case, the question is whether the appellant was acting in his official capacity while the alleged offence was committed or was performing a duty in his capacity as a police officer which led to the offence complained of. That it was the day of election to the State Assembly, that the appellant was in uniform; that the appellant travelled in an official jeep to the spot, near a polling booth and the offence was committed while he was on the spot, may not by themselves attract Section 197 (1) of the Code. But, as can be seen from the facts disclosed in the counter affidavit filed on behalf of the State based on the entries in the General Diary of the Phoolbagan Police station, it emerges that on the election day information was received in the Police Station, at 1400 hours of some disturbance at a polling booth, that it took a violent turn and clashes between the supporters of two political parties was imminent. It was then that the appellant reached the site of the incident in his official vehicle. It is seen that a case had been registered on the basis of the incidents that took place and a report in this behalf had also been sent to the superiors by the Station House Officer. It is also seen and it is supported by the witnesses examined by the Chief Judicial Magistrate while taking cognizance of the offence that the appellant on reaching the spot had a discussion with the Officer-in-charge who was stationed at the spot and thereafter a lathi charge took place or there was an attack on the husband of the complainant and he met with his death. Obviously, it was part of the duty of the appellant to prevent any breach of law and maintain order on the polling day or to prevent the blocking of voters or prevent what has come to be known as booth capturing. It therefore emerges that the act was done while the officer was performing his duty. That the incident took place near a polling booth on an election day has also to be taken note of. The complainant no doubt has a case that it was a case of the deceased being picked and chosen for illtreatment and he was beaten up by a police constable at the instance of the appellant and the Officer-in-charge of the Phoolbagan Police Station and at their behest. If that complaint were true it will certainly make the action, an offence, leading to further consequences. It is also true as pointed out by the learned counsel for the complainant that the entries in the General Diary remain to be proved. But still, it would be an offence committed during the course of the performance of his duty by the Page No. 35 appellant and it would attract Section 197 of the Code. Going by the principle, stated by the Constitution Bench in matajog Dobey (supra), it has to be held that a sanction under Section 197 (1) of the Code of criminal Procedure is necessary in this case. 16. We may in this context notice the decision in Rizwan Ahmed Javed Shaikh and Ors. Vs. Jamrnal Patel and Ors. [ (2001 )5 SCC 7]. This court was dealing with officers who were brought within the protective umbrella of section 197 of the Code by a notification issued under Section 197 (3) thereof. Cognizance had been taken of an offence under Sections 220 and 342 of the Indian Penal Code and Sections 147, and 1148 of the Bombay Police Act. The gravamen of the charge was the failure on the part of the accused police officers to produce the compainants before,a magistrate within 24 hrs. of their arrest for alleged offences under the Indian Penal Code. The police officers having claimed the protection of Section 197 (1) of the Code, this Court after referring to the earlier decisions held"
"the real test to be applied to attract the applicability of Section 197 (3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected. " going by the above test it has to be held that Secticcn 197 (1) of the Code is attracted to this case. 17. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it gcces. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty Section 197 (1) of the Code cannot be by-passed by reasoning that killing a man could never be done in an official capacity and consequently Section 197 (1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court earlier. The other reason given by the High Court that if the Page No. 36 High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements, which may ultimately affect the adjudication itself, will itself result: in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under section 197 (1) of the Code of Criminal Procedure. We are therefore satisfied inert the High court was in error in holding that sanction under Section 197 (1) was not needed ii this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction. "
41. A microscopic reading of the facts of the case of Sankaran Moitra (supra)shows that the complainant's husband was assaulted by lathi and on being so assaulted, he tried to run away to save his. life, but the police personnel chased him and when he fell down in the water at the edge of the lake, he begged for his life from the police personnel chasing him and requested them not to assault him by saying that he did not know how to swim, but despite repeated requested and begging for life, a police constable struck successive blows on the head of the complainant's husband and also on different parts of his body with a lathi, the result being that the complainant's husband became unconscious, fell in the lake and died. Even in such a case, provisions of Section 197 cr. PC were found attracted, for, the alleged acts, though dishonest and far in excess of the limits of the powers of the police personnel concerned, were nevertheless found to have been done, while acting or purporting to act in the discharge of official duties. Going by this test, the majority, in sankaran Moitra (supra), held that sanction under Section 197 Cr. PC was essential.
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