Patna High Court
Manoj Kumar Razak @ Manoj Kumar vs The State Of Bihar, Through The ... on 20 September, 2017
Author: Anil Kumar Upadhyay
Bench: Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.39796 of 2014
Arising Out of PS.Case No. -72 Year- 2013 Thana -COMPLAINT CASE District- SHEOHAR
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Manoj Kumar Razak @ Manoj Kumar Son of Late Hira Lal Razak Resident of
Village- Raghunathpur, P.S.- Raghunathpur, District -Patna
.... .... Petitioner/s
Versus
1. The State of Bihar, Through The Collector, Sheohar null null
2. Sri Harendra Kumar Singh Son of Late Chuman Prasad Singh Resident of
Village - Lalgarh Jogia, P.S.- Shyampur Bhanaha , District - Sheohar.
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.
For the Opposite Party/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
Date: 20-09-2017
Petitioner has filed this application for quashing of the
order taking cognizance passed by the Chief Judicial Magistrate,
Sheohar dated 18.6.2013 in Complaint Case No. 72 of 2013 and for
setting aside the order passed by the Sessions Judge, Sheohar in
Revision No. 30 of 2014 dated 05.04.2014.
2. The short fact relevant for deciding the present case
lies in narrow campus:
The petitioner at the relevant time was working as the
District Programme Officer in the district of Sheohar. In the absence
of District Magistrate, Sheohar. A 'Janta Darbar' was held by the
Sub-divisional Magistrate in the premises of District Magistrate and
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the petitioner was assisting him in the 'Janta Darbar'. The opposite
party no.2 was one of the complainants in the 'Janta Darbar' who
submitted a petition for redressal of his grievance pertaining to
payment of third installment under the 'Bagwani Mission Project'. In
the 'Janta Darbar' at the relevant time there was commotion and the
police has to intervene and arrest the complainant. However, he was
released on PR bond. After the aforesaid incident the complainant
filed a complaint case against this petitioner. In his complaint he
alleged that this petitioner refused to give the receipt of the
representation submitted by the petitioner and allegedly misusing his
official position abused and slapped the complainant and thereafter he
was sent to police custody by the petitioner and the Sheohar police
released him on P.R. bond. The learned Magistrate on examination of
complainant on S.A. and the witnesses in inquiry under section 202
Cr.P.C. took cognizance under sections 323, 504 and 427 of the
Indian Penal Code against the petitioner.
3. The petitioner aggrieved by the order taking
cognizance filed Revision No. 30 of 2014. In Criminal Revision, the
petitioner impugned the order taking cognizance on the ground that no
offence under sections 323, 504 and 427 of the Indian Penal Code is
made out from the materials available on record and also raised the
issue that in the absence of sanction under section 197 Cr.P.C. the
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order taking cognizance is bad as the petitioner is a government
servant and the incidence dated 28.2.2013 is connected with the
discharge of his official duty. The learned Sessions Judge, Sheohar
held out that the order taking cognizance by the Chief Judicial
Magistrate does not suffer from any vice as the same was taken after
inquiry under section 202 Cr.P.C. He rejected the contention of the
petitioner as to protection under section 197 of the Cr.P.C. The
learned Sessions Judge distinguished the judgment reported in AIR
2000 SC 3187 (Abdul Wahab Ansari vs. State of Bihar and
another) on which the petitioner has relied upon and held out that it
is inapplicable in the facts of the case. The relevant part of the
consideration by the learned Sessions Judge reads as follows:-
"Act of the accused can not come within the
purview of discharge of official duty and in such
circumstances the protecting as laid down under the
provisions of section 197 Cr.P.C. will not come to his
rescue, in my view, the learned C.J.M. was justified in
taking cognizance of the offence against the
petitioner/accused. At this stage the learned lawyer for
the petitioner has referred to ruling reported in A.I.R.
2000 supreme Court 3187 to butress his argument that
without sanction for prosecution of the
petitioner/accused the cognizance against him is bad in
law. But with almost veneration, I would like to mention
here that the facts of the case referred to in the ruling are
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quite distinct from the facts of the instant case and the
same is not applicable in this case."
4. Mr. Bamdeo Pandey appearing on behalf of the petitioner
has submitted that Section 197 Cr.P.C. is applicable to the case of the
petitioner as the alleged act is directly connected with the official
discharging of his duty and as such order taking cognizance is bad in
the absence of prior sanction of the State Government. He placed
reliance on Apex Court judgments reported in AIR 2000 SC 3187,
PLJR 2016(3) 296 PLJR 2016(3) 145 and PLJR 2016(4) 254 in
support of his case whereas Mr. Devendra Kumar appearing on behalf
of the opposite party placed reliance on 2015 (3) PLJR (SC) 32,
PLJR 2015(3) SC 204 PLJR 2016(3) 145 and PLJR 2016(4) SC
254 and contended that sanctioned is not required in this case.
5. In the instant case the only issue require adjudication is
whether sanction is required under section 197 of the Cr.P.C. before
order taking cognizance or not?
Section 197 of the Cr.P.C. reads as follows:-
"Prosecution of Judges and public servants:-
(1) When any person who is or was a Judge or
Magistrate or a public servants not removal 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
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offence except with the previous sanction { save as
otherwise provided in the Lokpal and Lokayuktas Act,
2013(1 of 204)}-
(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, of 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:
[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.]
[Explanation.- For the removal of doubts it is
hereby declared that no sanction shall be required in case
of a public servant accused of any offence alleged to have
been committed under section 166-A, section 166-B,
section 354, section 354-A, section 354-B, section 354-C,
section 354-D, section 370, section 375, section 376,
section 376-A, section 376-C, section 376-D or section
509 of the Indian Penal Code (45 of 1860.)]
(2) No Court shall take cognizance of any
offence alleged to have been committed by any member
of the Armed Forces of the Union while acting or
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purporting to act in the discharge of his official duty,
except with the previous sanction of the Central
Government.
(3) The State Government may, be 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
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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. The issue with regard to prior sanction has been raised on
various occasions and the Apex Court time and again explained the
legal position and the judgment on which the petitioner relied upon
that sanction is required is the three judges judgment reported in AIR
2000 page 3187 wherein the Apex Court held out that if his act of
complaint relates to discharge of official duty then section 197 Cr.
P.C. is imperative. The exposition of law on applicability of section
197 of the Cr.P.C. is discussed in the aforesaid judgment.
Para 4 onwards of the aforesaid judgment is quoted herein
below for better appreciation of the core principles;
(1) Assuming the provisions of Section 197 of the
Code of Criminal Procedure applies, at what stage the
accused can take such plea? Is it immediately after
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the cognizance is taken and process is issued or it is
only when the Court reaches the stage of framing of
charge as held by this Court in Birendra K. Singh's
case?
(2) Whether in the facts and circumstances of the
present case, is it possible for the Court to come to a
conclusion that the appellant was discharging his
official duty and in course of such discharge of duty,
ordered for opening of fire to control the mob in
consequence of which a person died and two persons
were injured and in which event, the provisions of
Section 197 of the Code of Criminal Procedure can
be held to be attracted?
5 So far as the first question is concerned, on a plain
reading of the provisions of Section 197 makes it
crystal clear that the Court is prohibited from taking
cognizance of the offence except with the previous
sanction of the competent authority. For a better
appreciation of the point in issue, Section 197(1) is
quoted herein-below in extenso:
"Section 197(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-
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(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, of 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."
6 Previous sanction of the competent authority being
a pre-condition for the Court in taking cognizance of
the offence if the offence alleged to have been
committed by the accused can be said to be an act in
discharge of his official duty, the question touches the
jurisdiction of the Magistrate in the matter of taking
cognizance and, therefore, there is no requirement
that an accused should wait for taking such plea till
the charges are framed. In Suresh Kumar
Bhikamchand Jain V/s. Pandey Ajay Bhushan,
(1998) 1 SCC 205 : (1998 AIR(SCW) 544 : AIR 1998
SC 1524 : 1998 Cri LJ 1242), a similar contention
had been advanced by Mr. Sibbal, the learned Senior
Counsel appearing for the appellants in that case. In
that case, the High Court had held on the application
of the accused that the provisions of Section 197 gets
attracted. Rejecting the contention, this Court had
observed (Para 23 of AIR, Cri LJ) :
"The legislative mandate engrafted in sub-sec. (1) of
Section 197 debarring a Court from taking
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cognizance of an offence except with a previous
sanction of the Government concerned in a case
where the acts complained of are alleged to have been
committed by a public servant in discharge of his
official duty or purporting to be in the discharge of
his official duty and such public servant is not
removable from his office save by or with the sanction
of the Government touches the jurisdiction of the
Court itself. It is a prohibition imposed by the statute
from taking cognizance, the accused after appearing
before the Court on process being issued, by an
application indicating that Section 197(1) is attracted
merely assists the Court to rectify its error where
jurisdiction has been exercised which it does not
possess. In such a case there should not be any bar
for the accused producing the relevant documents
and materials which will be ipso facto admissible for
adjudication of the question as to whether in fact
Section 197 has any application in the case in hand.
It is no longer in dispute and has been indicated by
this Court in several cases that the question of
sanction can be considered at any stage of the
proceedings."
The Court had further observed (Para 24 of AIR Cri
LJ) :
"The question of applicability of Section 197 of the
Code and the consequential ouster of jurisdiction of
the Court to take cognizance without a valid sanction
is genetically different from the plea of the accused
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that the averments in the complaint do not make out
an offence and as such the order of cognizance
and/or the criminal proceedings be quashed. In the
aforesaid premises we are of the considered opinion
that an accused is not debarred from producing the
relevant documentary materials which can be legally
looked into without any formal proof, in support of
the stand that the acts complained of were committed
in exercise of his jurisdiction or purported
jurisdiction as a public servant in discharge of his
official duty thereby requiring sanction of the
appropriate authority."
In the case of Ashok Sahu V/s. Gokul Saikia, 1990
Supp SCC 41, this Court had said that want of
sanction under Section 197 of the Code is a
prohibition against institution of the proceedings, and
the applicability of the Section must be judged at the
earliest stage of the proceedings and in that case, the
Court directed the Magistrate to consider the question
of sanction before framing a charge. In yet another
case, in the case of P. Saha V/s. M. S. Kochar, (1979)
4 SCC 177 : (AIR 1979 SC 1841 : 1979 Cri LJ 1367),
a three Judge Bench of this Court had held that the
question of sanction under Section 197, Code of
Criminal Procedure can be raised and considered at
any stage of the proceedings and further in
considering the question whether or not sanction for
prosecution was required, it is not necessary for the
Court to confine itself to the allegations in the
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complaint, and it can take into account all the
material on the record at the time when the question
is raised and falls for consideration. This being the
position, we are of the considered opinion that the
decision of this Court in Birendra K. Singh's case,
(2000) 8 JT (SC) 248, does not lay down the correct
law by directing that the objection on the question of
sanction can be raised at the stage of framing of
charge and not at any prior point of time.
7 Coming to the second question, it is now well settled
by the Constitution Bench decision of this Court in
Matajog Dobey V/s. H. C. Bhari, (1955) 2 SCR 925 :
(AIR 1956 SC 44 : 1956 Cri LJ 140) that in the matter
of grant of sanction under Section 197 of the Code of
Criminal Procedure the offence alleged to have been
committed by the accused must have something to do,
or must be related in some manner, with the
discharge of official duty. In other words, 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 claim, but not a pretended or fanciful
claim, that he did it in the course of the performance
of his duty. In the said case it had been further held
that where a power is conferred or a duty imposed by
statute or otherwise, and there is nothing said
expressly inhibiting the exercise of the power or the
performance of the duty by any limitations or
restrictions, it is reasonable to hold that it carries with
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it the power of doing all such acts or employing such
means as are reasonably necessary for such
execution, because it is a rule that when the law
commands a thing to be done, it authorises the
performance of whatever may be necessary for
executing its command. This decision was followed by
this Court in Suresh Kumar Bhikamchand Jain's
case, (1998) 1 SCC 205 : (1998 AIR(SCW) 544 : AIR
1998 SC 1524 : 1998 Cri LJ 1242) and in a recent
Judgement of this Court in the case of Gauri Shankar
Prasad V/s. State of Bihar, (2000) 5 SCC 15 : (2000
AIR(SCW) 3135). The aforesaid case has full force
even to the facts of the present case inasmuch as in
the said case, the Court had observed (Para 14 of AIR
SCW) :
"It is manifest that the appellant was present at the
place of occurrence in his official capacity as Sub-
Divisional Magistrate for the purpose of removal of
encroachment from Government land and in exercise
of such duty, he is alleged to have committed the acts
which from the gravamen of the allegations
contained in the complaint lodged by the respondent.
In such circumstances, it cannot but he held that the
acts complained of by the respondent against the
appellant have a reasonable nexus with the official
duty of the appellant. It follows, therefore, that the
appellant is entitled to the immunity from criminal
proceedings without sanction provided under Section
197, Cr. P. C."
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It is not necessary for us to multiply authorities on
this point and hearing in mind the ratio of the
aforesaid cases and applying the same to the facts of
the present case as indicated in the complaint itself,
we have no hesitation to come to the conclusion that
the appellant had been directed by the Sub-Divisional
Magistrate to be present with police force and remove
the encroachment in question and in course of
discharge of his duty to control the mob, when he had
directed for opening of fire, it must be held that the
order of opening of fire was in exercise of the power
conferred upon him and the duty imposed upon him
under the orders of the Magistrate and in that view of
the matter the provisions of Section 197(1) applies to
the facts of the present case. Admittedly, there being
no sanction, the cognizance taken by the Magistrate
is bad in law and unless the same is quashed qua the
appellant, it will be an abuse of the process of Court.
Accordingly, we allow this appeal and quash the
criminal proceeding, so far as the appellant is
concerned.
7. In the case of Inspector of Police and Anr. vs.
Battenapatia Venkata reported in 2015(3) PLJR 32(SC), the Apex
Court on consideration of the judgment in Shambhoo Nath Mishra
vs. State of U.P. and others 1987 SCC 326, Rajib Ranjan & Ors.
vs. R. Vijay Kumar (2015) 1 SCC 513 and other cases examined
the various aspect of section 197 Cr.P.C. and held out that public
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servant deserve special treatment but protection has to be construed
to advance to cause of justice.
Para- 10 and 11 of the aforesaid judgment is quoted
hereinbelow:
10. "As already observed, the contention of the
appellant is that when there is allegation of forgery and
discovery of documents is necessary, a Magistrate must
order investigation under section 156(3) instead of
proceeding under section 202. Alternatively, direction to
the police to investigate and give a report under section
202 implies arrest and discovery which under section 157
of the Code are integral parts of investigation. Contrary
view of Gujarat High Court in Sankalchand Valjibhai
Patel(supra) and other High Courts are erroneous while
the view taken by other High Courts to which reference
will be made in later part of this judgment is correct.
Section 202(3) expressly provides that if a person, other
than police officer is required to conduct investigation
under section 202(1), he is not authorized to arrest without
warrant which implied that there is no such restriction on
power of arrest available with a police officer.
11. On the other hand, contention on behalf of
the alleged accused is that both the powers of the
Magistrate---(i) directing investigation under section
156(3); and (ii) direction under section 202 to seek a report
from police after investigation to enable the Magistrate to
decide whether to proceed further and issue process are
qualitatively different and are in different chapters of the
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Code. Thus, as per scheme of the Code, power of police in
pursuance of directions under the said two provisions is
not the same.
The Magistrate has discretion either to direct
registration of a case under Section 156(3) or to conduct
inquiry himself as the situation may warrant. This
discretion is to be exercised by the Magistrate in his
wisdom and having regard to the nature of material
available. Direction under section 156(3) to register a
criminal case and to investigate is to be exercised where
the Magistrate is satisfied that prima facie a cognizable
offence has been committed. On the contrary, where he
thinks it necessary to conduct further inquiry before
deciding whether he should proceed further in the matter,
matter has to be dealt with under Section 202. Mere
allegation of forgery is not enough to require the
Magistrate to pass the order under Section 156(3)."
8. Similar was the view expressed by the Apex Court in the
case of Devendra Singh and ors. vs. State of Punjab 2016 (3)
PLJR (SC) 145 wherein the two judges referred to the various
judgments of the Apex Court summaries the principle of protection
under section 197 of the Cr.P.C. with regard to order taking
cognizance.
Para 37 is quoted for ready reference:-
"1. Protection of sanction is an assurance to
an honest and sincere officer to perform his duty honestly
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and to the best of his ability to further public duty.
However, authority cannot be camouflaged to commit
crime.
II. Once act or omission has been found to
have been committed by public servant in discharging his
duty it must be given liberal and wide construction so far
its official nature is concerned. Public servant is not
entitled to indulge in criminal activities. To that extent
Section 197 Cr. P.C. has to be construed narrowly and in
a restricted manner.
III. Even in facts of a case when public
servant has exceeded in his duty, if there is reasonable
connection it will not deprive him of protection under
Section 197 Cr.P.C. There cannot be a universal rule to
determine whether there is reasonable nexus between the
act done and official duty nor it is possible to lay down
such rule.
IV. In case the assault made is intrinsically
connected with or related to performance of official duties
sanction would be necessary under section 197 Cr.P.C.
but such relation to duty should be pretended or fanciful
claim. The offence must be directly and reasonably
connected with the official duty to require sanction. It is
no part of official duty to commit offence. In case offence
was incomplete without proving, the official act,
ordinarily the provisions of Section 197 Cr.P.C. would
apply.
V. In case question is necessary it has to be
decided by competent authority and sanction has to be
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issued on the basis of sound objective assessment. The
court is not to be a sanctioning authority.
VI. Ordinarily, question of sanction should be
dealt with at the stage of taking cognizance, but if the
cognizance is taken erroneously and the same comes to
the notice of Court at a later stage, finding to that effect is
permissible and such a plea can be taken first time before
appellate Court. It may arise at inception itself. There is
no requirement that accused must wait till charges are
framed.
VII. Question of sanction can be raised at the
time of framing of charge and it can be decided prima
face on the basis of accusation. It is open to decide it
afresh in light of evidence adduced after conclusion of
trial or at other appropriate stage.
VIII. Question of sanction may arise at any
stage of proceedings. On a police or judicial inquiry or in
course of evidence during trial. Whether sanction is
necessary or not may have to be determined from stage to
stage and material brought on record depending upon
facts of each case. Question of sanction can be considered
at any stage of the proceedings. Necessity for sanction
may reveal itself in the course of the progress of the case
and it would be open to accused to place material during
the course of trial for showing what his duty was. Accused
has the right to lead evidence in support of his case on
merits.
IX. In some case it may not be possible to
decide the question effectively and finally without giving
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opportunity to the defence to adduce evidence. Question
of good faith or bad faith may be decided on conclusion
of trial."
9. In 2016(4) PLJR (SC) the two judges of the Supreme
Court once again considered the various aspect of section 197 of the
Cr.P.C. in the context of allegation of offence of cheating. Under
sections 467, 468, 471 and 409, the Apex Court on consideration of
the various judgments of the Apex Court held out that sanction under
section 197 of the Cr.P.C is not necessary as there has to be
reasonable connection between omission or commission of the
discharge of official duty and the act committed was under the colour
of the office held by the official. if the acts omission or commission
is totally alien to the discharge of the official duty protection under
section 197 Cr.P.C. is not available.
Para-22 of the judgment contains core principles applicable
in the matter of application of section 197 Cr.P.C. which is quoted
hereinbelow:-
A survey of the precedents makes it
absolutely clear that there has to be reasonable
connection between the omission or commission and the
discharge of official duty or the act committed was under
the colour of the office held by the official. If the acts
omission or commission is totally alien to the discharge
of the official duty, question of invoking Section 197
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Cr.P.C. does not arise. We have already reproduced few
passages from the impugned order from which it is
discernible that to arrive at the said conclusion the
learned Single Judge has placed reliance on the authority
in B. Saha's (supra). The conclusion is based on the
assumption that the allegation is that while being a public
servant, the alleged criminal breach of trust was
committed while he was in public service. Perhaps the
learned Judge has kept in his mind some kind of concept
relating to dereliction of duty. The issue was basically
entrustment and missing of the entrusted items. There is
no dispute that the prosecution had to prove the case.
But the public servant cannot put forth a plea that he was
doing the whole act as a public servant. Therefore, it is
extremely difficult to appreciate the reasoning of the High
Court. As is noticeable he has observed that under
normal circumstances the offences under Sections 467,
468 and 471 IPC may be of such nature that obtaining of
sanction under Section 197 CrPC is not necessary but
when the said offences are interlinked with an offence
under section 409 IPC sanction under Section 197 for
launching the prosecution for the offence under Section
409 is a condition precedent. The approach and the
analysis are absolutely fallacious. We are afraid, though
the High Court has referred to all the relevant decisions
in the field, yet, it has erroneously applied the principle in
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an absolute fallacious manner. No official can put forth a
claim that breach of trust is connected with his official
duty. Be it noted the three-Judge Bench in B. Saha
(supra) has distinguished in Shreekantiah Ramayya
Munipalli (supra) keeping in view the facts of the case. It
had also treated the ratio in Amrik Singh (supra) to be
confined to its own peculiar facts. The test to be applied,
as has been stated by Chandrasekhara Aiyar, J. in the
Constitution Bench in Matajog Dube (supra) which we
have reproduced hereinbefore. The three-Judge Bench in
B. Saha (supra) applied the test laid down in Gill's case
wherein Lord Simonds has reiterated that the test may
well be whether the public servant, if challenged, can
reasonably claim, that what he does, he does in virtue of
his office.
10. In the backdrop of principle discussed by the Apex
Court referred to above, this court has to consider the submission of
the parties on the factual premises:
(i) Whether the petitioner is a public servant or not and is
protected in terms of Section 197? ;
(ii) Whether the alleged act or omission is connected to the
official discharge of his duty or not?
11. So far as answer of the first question is concerned the
petitioner is a public servant or not, is in favour of the petitioner as at
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the relevant time he was holding the post of District Programme
Officer.
12. The second question whether the alleged act or omission
pertains to the official discharge of duty is in two parts (i) that he was
deputed in the premises of District Magistrate in connection with
'Janta Darbar' therefore, he was performing his duty in the 'Janta
Darbar' and assisting the Sub-divisional officer.
13. Now the crucial issue for adjudication in this case is;
Whether the alleged act of abuse and slap of the
complainant was in furtherance of the official discharge of his duty or
not? If the courts proceed on complaint petition simplicitor then
answer is negative, however reading the 'Sanha' entry contained in
Annexure-2, it appears that the Sub-Divisional Officer, Sheohar
noticing the act of the complainant creating commotion in the 'Janta
Darbar' summoned the police and the complainant opposite party
no.2 was apprehended by the police and later on released on P.R
bond.
14. In the backdrop of the 'Sanha' entry by the police and
the intervening fact that the Sub-Divisional Officer, Sheohar has
intervened in the matter and summoned the police, I am constraint to
consider the desirability of exercising jurisdiction under section 482
of the Cr.P.C. for two reasons (a) as the matter has remained pending
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for more than four years and this petitioner has also suffered ordeal of
criminal case for more than four years, (b) the 'Sanha' entry tells
altogether different story that the one mentioned in the complaint
case. In the totality of the facts of this case, I am of the view that
present case does fall in the category of cases where sanction is
required for taking cognizance in view of the fact that petitioner was
posted in 'Janta Darbar' to assist the Sub-Divisional Magistrate and
was responsible for maintaining peace and order in the 'Janta Darbar'
and in view of the judgment of the Apex Court reported in AIR 2000
SC 3187 discussed above, the application is allowed, the order taking
cognizance dated 18.6.203 passed by Chief Judicial Magistrate,
Sheohar in Complaint Case No. 72 of 2013 and the order dated
05.04.2014passed by the Sessions Judge, Sheohar, in Cr. Revision No. 30 of 2013 is accordingly set aside.
(Anil Kumar Upadhyay, J) Ravi/-
AFR/NAFR NAFR CAV DATE 08.09.2017 Uploading Date 20.09.2017 Transmission 20.09.2017 Date