Punjab-Haryana High Court
Chaman Lal Sankhla vs State Of Haryana on 14 February, 2008
Equivalent citations: 2008CRILJ2640
ORDER Harbans Lal, J.
1. This petition has been moved under Section 482 of Cr. P.C. for setting aside the order dated 26th September, 2006 passed by the Court of learned Additional Sessions Judge, Gurgaon in the Crl. Revision No. 26 of 2005 against the order dated 15th February, 2005 passed by the learned Chief Judicial Magistrate, Gurgaon framing the charges against the petitioner in case FIR No. 26 dated 31st October, 2001 registered under Sections 218, 420, 467 and 468 of IPC at Police Station District Vigilance Bureau Gurgaon, Haryana.
2. The facts in brief are that on 3rd March, 1997, the petitioner had issued 177 driving licenses without following the procedure prescribed under the provisions of Motor Vehicle Act and Rules framed therein. These licenses were entered in the official register at Serial No. 1046 to 1222 and license fee of Rs. 13,210/- was deposited in the State Bank of India, Ferozpur Jhirka, Gurgaon in the Head-0041 dated 5th March. 1987. On 16th November, 2000, the Director State Vigilance Bureau, Haryana Chandigarh submitted his enquiry report vide No. 16697 dated 16th November, 2000 to the Chief Secretary, Haryana exonerating the allegations levelled against him and stated that on the basis of relevant record and statement recorded during the course of enquiry, it was found that the concerned 177 driving licenses were issued to all the applicants, who were residents of Sub-Division Ferozepur Jhirka, Gurgaon and that the petitioner was fully competent to issue driving licenses during his period of posting because all the applicants were original residents of the aforesaid area. On 31st October, 2001, FIR No. 26 of 2001 was registered against the petitioner and other co-accused under Sections 218, 420, 467, 468, 471 and 120-B of Indian Penal Code read with 13(1)(d) of the Prevention of Corruption Act, 1988 (for short 'the Act') by Vigilance Bureau Gurgaon, Haryana. On 15th April, 2002, the charge-sheet was filed under the aforementioned Sections. The learned Special Judge, Gurgaon vide his order dated 12th December, 2002, discharged the petitioner and other co-accused under Section 13(1)(d) of the Act and ordered to put the case before the learned Chief Judicial Magistrate, Gurgaon for trial in accordance with law after framing the formal charge under the aforesaid Sections of IPC. This Court vide order dated 3rd May, 2003 rendered in Crl. Revision No. 675 of 2003 observed that the abovementioned order of the learned Special Judge for framing of charges under specific Sections of IPC is without jurisdiction and is also grossly prejudicial to the petitioner and others and therefore, the petitioner and others, on appearance before the learned CJM shall be at liberty to argue that no charge has been made out against them and the Court shall proceed in accordance with the provisions of Sections 238, 239 and 240 of the Cr. P.C. Vide order dated 15th February, 2005 the learned CJM charged the petitioner under Sections 218, 420, 467, 468 of IPC and discharged under Sections 471 and 120-B of IPC. The learned Additional Sessions Judge, Gurgaon vide his order dated 26th September, 2006 passed in Criminal Revision No. 26 of 2005 filed by the petitioner against the impugned order of the learned CJM held that the issuance of every license was a separate offence and by virtue of Section 219 of Cr. P.C., no other option is left with this Court except to remit the case back to the learned CJM, Gurgaon with direction to direct the prosecution agency to submit different charge-sheet under Section 173 of Cr. P.C. joining 3 offences in one charge-sheet. The learned Additional Sessions Judge has erred while holding that the issuance of every licence was a separate offence and by virtue of Section 219 of Cr. P.C., joint charges can be framed only for three offences of the same kind within one year. He passed this order ignoring the applicability of Section 220 of the Cr. P.C. He had ignored the peculiar fact that there is a want of sanction under Section 197 of Cr. P.C. He has also not noticed that there was a delay of 4 1/2 years in lodging the FIR by the prosecution. There is no proof that the petitioner has taken any pecuniary advantage from the licence holders. That the following points arise in this petition for kind determination:
(a) Whether the learned Additional Sessions Judge has erred while holding that the issuance of every licence was a separate offence and by virtue of Section 219 of Cr. P.C. 59 separate report Under Section 173 of Cr. P.C. are required to be submitted and totally ignoring the applicability of Section 220 of Cr. P.C.?
(b) Whether sanction Under Section 197 of Cr. P.C. which protects public servants against the vexatious criminal proceedings in the present case, is needed or not or prima facie case is made out or not ?
(c) Whether the Court of Revision may interfere, while applying his discretionary power apart from the judgment of subordinate Court or the findings therein?
3. In reply filed by way of affidavit of Sh. Jagdish Parshad, Deputy Superintendent of Police, State Vigilance Bureau (H), Gurgaon Range, Gurgaon on behalf of the State of Haryana, it has been averred that the prosecution was launched against the petitioner who was posted as SDO at Ferozepur Jhirka in 1977 on the allegation that 177 licenses were issued in a day on 3rd March, 1997 before relinquishing charge and after departmental inquiry into the matter, the FIR was lodged against 13 persons and charge-sheet was submitted for trial of the accused including the petitioner under Sections 218, 420, 467, 468, 471, 120-B of IPC and Section 13 ibid; that Section 219 of Cr. P.C. clearly indicates the preparation of separate charge-sheets; that the petitioner has committed the offence in connivance with different persons and hence, there is no continuity of the offence, as each licence made of different person constitute a fresh and separate offence; that at this stage, it is not proper to observe as to whether the sanction under Section 197 of Cr. P.C. Is needed or not or prima facie case is made out or not as it will be decided at the subsequent appropriate stage; that the learned Additional Sessions Judge, Gurgaon did not charge-sheet the petitioner and others for the offence committed by them under Section 13(1)(d) ibid. Lastly, it is prayed that the present petition be dismissed.
4. I have heard the learned Counsel for both the paries at length and gone through the record with due care and circumspection.
5. Mr. Surinder Lamba, Advocate appearing on behalf of the petitioner stressing his every nerve maintained that the learned Additional Sessions Judge has gravely erred in holding that issuane of every licence was a separate offence and by virtue of Section 219 of Cr. P.C. joint charges can be framed only for three offences of the same kind within one year by overlooking the provisions of Section 220 of Cr. P.C. which contemplates that if in one series of acts, so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence.
6. He further contended that the relief sought in this petition could be granted by the revisional Court under Section 397 of Cr. P.C. but the same has been withheld and that being so, this second revision petition in view of the observations made in re : J.S. Maini, IAS v. Thakur Hari Singh 1989 (2) Recent Criminal Reports 210 is maintainable.
7. He further maintained that in re : Gurnam Singh v. State of Haryana 1998 (1) Recent Criminal Reports (Crl) 51, FIR was registered against the accused under the Prevention of Corruption Act. The charge-sheet was submitted in the Court. The departmental enquiry was also conducted against accused on same charges. He was exonerated by the Department. FIR was quashed under Section 482 of Cr. P.C. In view of these observations, no case is made out against the petitioner.
8. The next argument raised by the learned Counsel for the petitioner is that as per the observations made in re : State of Maharashtra v. Dr. Budhikota Subharao 1993 (2) Recent Criminal Reports 482, sanction for prosecution of the public servant after retirement is required, irrespective of his retirement. He also maintained that as observed in re : Sankaran Moitra v. Sadhna Dass sanction of prosecution is a condition precedent if act of public servant fell within provisions of Section 197 of Cr. P.C. and the Court cannot proceed without sanction.
9. To overcome these submissions, Mr. Sidharth Sarup, Assistant Advocate General, Haryana on behalf of the State maintained that no holes can be picked in the impugned order, in view of the provisions as enshrined in Section 219 of Cr. P.C. He further canvassed at the bar that the driving licenses were issued to different persons and consequently all the 177 driving licenses issued on one and the same day cannot form the same transaction. He further argued that it will be decided at the subsequent stage as to whether sanction under Section 197 of Cr. P.C. Is required or not.
10. I have well considered the rival contentions. As per FIR (Annexure P-2), the allegations against the petitioner are that on 3rd March, 1997, he had issued 177 licenses in a day before leaving his charge while violating the rules and the files of these alleged issued licenses do not bear the signatures of District Inspector and documents in proof of residence like ration card etc. are not available therein and on 29th December, 1996, he made 13 challans, which are not recorded in the official records and even challan book has been recovered from the personal box of Sunder Lal, Driver. It has been found that before handing over charge of the post on transfer he had issued 177 licenses in respect of different vehicles on 3rd March, 1997 without completing the formalities stipulated in Motor Vehicles Act, 1988 and Central Motor Vehicles Act, 1989 while abusing the power vested in him and fabricated the records, whereas he was not competent to issue such type of licenses.
11. The first poser is as to whether the learned Additional Sessions Judge has erred in holding that the issuance of every license was a separate offence and by virtue of Section 219 of Cr. P.C. 59 separate reports under Section 173 of Cr. P.C. were required to be submitted. Section 219 of Cr. P.C. reads as under:
219. Three offences of same kind within one year may be charged together: (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local laws:
Provided that, for the purposes of this section, an offence punishable under Section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence.
Section 220 of Cr. P.C. runs as under:
220. Trial for more than one offence:
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in Sub-section (2) of Section 212 or in Sub-section (1) of Section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.
(5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860).
12. It is apposite to point out here that as per allegations, the petitioner along with others issued 177 driving licenses on one and the same day before he relinquished the charge in consequence of his transfer. The expression used in the language of Section 219 of Cr. P.C. Is "whether in respect of the same person or not". Here in this case, the licenses have been issued to different persons. Therefore, all the applicants fall within the expression of "whether in respect of the same person or not". As per this Section if a person is accused of more offences than one of the same kind committed within the space of twelve months may be charged with and tried at one trial for, any number of them not exceeding three. The reasonable interpretation which can be put on this expression is that three offences of the same kind within one year may be charged together. The offences of the same kind have been defined in Sub-section (2) of Section 219 of Cr. P.C. and as per the same, the offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law.
13. In the present case, the offences being of the same kind are punishable with the same amount of punishment. The offences being of the same kind having been committed within one year, only three offences of the same year could be joined. In the case in hand, a composite report under Section 173 of Cr. P.C. has been submitted by the prosecution agency though in adherence to the provisions of Section 219(1) of Cr. P.C. the report under Section 173 of Cr. P.C. was required to comprise only three offences. A single challan containing the commission of 177 offences of the same kind has been filed, which is quite contrary to the spirit of Section 219(1) of Cr. P.C. Sequelly, there is nothing wrong with the observations made by the learned Additional Sessions Judge in his impugned order.
14. In view of the above discussion, the provisions of Section 220 of Cr. P.C. are not attracted to the case in hand. The first poser is accordingly answered.
15. The next poser is whether sanction under Section 197 of Cr. P.C. is required at the present stage. This point is left open for being decided by the learned trial Court at the appropriate stage on being moved an application by the petitioner. Of course, it has been observed in re : J.S. Maini (supra) that second revision petition under Section 482 of Cr. P.C. before the High Court is maintainable, if relief prayed for in petition under Section 482 of Cr. P.C. could not be granted by the revisional Court under Section 397 of Cr. P.C. In that case, Mr. J.S. Maini had challenged the order of summoning by way of revision in the Court of Session. The learned Additional Sessions Judge, Amritsar dismissed the same. In J.S. Maini's case (supra) when the petitioner moved this Court, he also sought quashment of the complaint. The Court of learned Additional Sessions Judge could not give him the relief of quashment of complaint. It could only examine the correctness or the legality of the order of the summoning. If the order of summoning is justified on the facts and the evidence led before the trial Court, the revisional Court will not interfere. The scope of revisional Court acting under Section 397 of Cr. P.C. and the scope of the High Court while acting under Section 482 of Cr. P.C. Is entirely different. There are certain limitations on the revisional Court but there are no such restrictions on the High Court while exercising its inherent powers under Section 482 of Cr. P.C. If the Court feels that the pendency of the complaint amounts to abuse of process of Court and it will be necessary to pass an order qua the same to secure the ends of justice, nothing will stop the High Court from doing the same. As observed in J.S. Maini's case (supra) "where the relief sought in a petition under Section 482 of Cr. P.C. could not be granted by the revisional Court under Section 397 of Cr. P.C. no restriction or bar can be placed on such a petition under Section 482 of Cr. P.C." It is axiomatic from the observations rendered in J.S. Maini's case (supra) that quashing of the complaint was also sought which relief could not be granted by the revisional Court. The same could be granted by this Court, on being invoked Jurisdiction under Section 482 of Cr. P.C. There was prayer for quashing of the complaint in J.S. Maini's case (supra), though there is no such prayer in the present petition. Consequently, it is held that this second revision being barred by law is not maintainable before this Court. Accordingly, this petition is disposed of.