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1993 DIGILAW 421 (CAL)

MRITYUNJOY SINHA v. TARAPADA DAS

1993-09-15

NIKHIL NATH BHATTACHARJEE

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NIKHIL NATH BHATTACHARJEE, J. ( 1 ) IN, this application under Article 227 of the constitution the applicants have challenged maintainability of the petition of complaint dated 31. 10. 1992 in the Court of the learned Sub-Divisional Judicial Magistrate, Serampore registerd as C. R. case No. 262 of 1992 on the ground that no prior sanction was obtained from the Government for the said prosecution. ( 2 ) THE petitioners case, in short is that petitioner No. 1 being the District Library Officer and Librarian-in-charge and petitioner No. 2 being the clerk-cum-typist of Uttarpara Joykrishna Public Library, District Hooghly are the gazetted officer and the Government employee respectively under the State Government. The Library is situated at holding No. 228, G. T. Road under Uttarparakotrung Municipality. By virtue of a declaration published by the Government of West Bengal in L. A. Case No. 1 of 1992/93 on 14. 10. 1985 under section 6 of the Land Acquisition Act, 1894, the property in C. C. Plots No. 1374 and 1375 of Mouza and P. S. Uttarpara were taken over and annexed to the area under occupation of the said library. The respondent No. 1 is the occupier of holding 212, G. T. Road which is on the adjacent north of the said library since extended, under the same municipality. On or about 13. 7. 1992 noticing an unauthorised construction work being carried out by the respondent No. 1 on the northern part of the boundary wall of the newly acquired building of the said library the petitioner No. 1 issued a letter to the respondent No. 1 asking him to stop the construction work immediately. But respondent No. 1 not only ignored the said letter, but also paid no heed to verbal requests made to him by local respectable citizens and Government officials for stoppage of construction and continued the unauthorised construction. The petitioner No. 1 thereafter took up the matter with the district administration in order to save the property of the library which is a property of the Government of West Bengal. Pursuant to the same the District Magistrate, Hooghly issued a written instruction to the petitioner No. 1 under his memo. No. 1207/c dated 22. 9. 1992 directing him to contact the Circle Inspector of Uttarpara police to arrange for demolition of the unauthorised boundary wall and vacating the unauthorised occupation of the quarter. Pursuant to the same the District Magistrate, Hooghly issued a written instruction to the petitioner No. 1 under his memo. No. 1207/c dated 22. 9. 1992 directing him to contact the Circle Inspector of Uttarpara police to arrange for demolition of the unauthorised boundary wall and vacating the unauthorised occupation of the quarter. ( 3 ) ON 21. 9. 1992 the petitioner No. 1 received a communication from the Sub-divisional Police Officer, Serampore in which the Chairman of the Municipality was requested to provide necessary labour force to carry out the demolition programme. On 14. 10. 1992 the Officer-in-charge Uttarpara police station asked the petitioner No. 1 in writing to fix up and inform a date in consultation with the Chairman of the Municipality for the demolition work to be carried out. On or about 26. 10. 1992 the unauthorised construction on the northern wall of the library premises was demolished by the police at per order of the Government. It is the petitioners case that although there was no valid reason to be aggrieved by the said Act of the Government, the opposite party No. 1 filed the impugned petition of complaint on 31. 10. 1992 in the Court of the Sub-divisional Judicial Magistrate, Serampore against the petitioners and others. The said case was registered as CR 262 of 1992 and is now pending in the Court of the learned 5th Judicial Magistrate, Serampore. ( 4 ) AFTER receiving the summons the petitioners appeared in the said court on 7. 1. 1993 and filed a petition on the self-same date praying for quashing the order of taking cognizance on the ground that the case had been filed without obtaining sanction of the Government and that all acts had been done in discharge of official duties by the public servants but the learned Court having not passed any order in respect of the petition the present revisional application had to be filed. ( 5 ) TO protect Judges, Magistrates and other public servants against irresponsible, frivolous or vexatious criminal proceedings for acts done in discharge of their official duties, Section 197 of the Code of Criminal Procedure provides that for taking cognizance of such an offence by Court, prior sanction of the Government is necessary. The relevant portion of this section runs as follows:197. The relevant portion of this section runs as follows:197. Prosecution of Judges and Public servants.- (1) when any person who is or was a Judge or Magistrate or a public servant not removable from his officer 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 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 ) THUS for application of this section two conditions are necessary. First, that the public servant is removable from office only by the Government, State or Central as the case may be and not by a lesser authority. Secondly, the public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. Galore are the judicial pronouncements that the dispute whether sanction is necessary or not for the prosecution of a public servant should generally be decided at the earliest opportunity. The expression not removable from his office save or with the sanction of the Government draws a line, Mrs. Sangha Mitra Nandy. learned advocate for the respondent argued, between public servants removable only by the Government and those who are removable by law, rule or order by a lesser authority not being the Government. She illustrated that an Inspector or Sub-Inspector of Police or a constable being removable by the Inspector General or by the Superintendent of police is not a public servant removable by the Government and so sanction is not necessary in their case. She illustrated that an Inspector or Sub-Inspector of Police or a constable being removable by the Inspector General or by the Superintendent of police is not a public servant removable by the Government and so sanction is not necessary in their case. But in the instant case, petitioner No. 1, a District Library Officer is a gazetted officer as has been stated in the petition of complaint, which has not been denied and that being so, petitioner No. 1 is removable only by the orders of the Government and hence the prerequisite for his prosecution is the prior sanction of the Government as provided under Section 197, Cr. P. C. and in absence thereof the petition of complaint is not maintainable as against him. ( 7 ) IN this connection it may be kept on record that accused No. 3 Shanti Priya Dasgupta and accused No. 4 Haridas Shome are the Chairman and Commissioner of the Uttar - Kotrung Municipality. The Chairman and the Commissioner are not removable other than by the Government, vide 32 C. W. N. 1035 and 39, Cr. L. J. 285. In T. S. Thomas and others v. K. A. Musthafa and an other, the Kerala High Court held that where the Municipal Councilors laid a trench along the bound of a canal constructed by the Commissioner, Irrigation Department on the land of another under on agreement with the owner, after notice to the department in order to supply water to the residents, which is the duty cast upon the Municipal Commissioner under the provision of the Act, the Commissioner being a public servant was entitled to protection under Section 197 of the Code of Criminal Procedure. In Re. Ramachandran2, the President of the Panchayat was alleged to have removed encroachment by demolishing the house of the complainant and his mother and the accused president had been authorised to remove the encroachment by a resolution of the panchayat. The act of the accused was treated by the Madras High Court to be well within the scope of discharge of duties or purported discharge of duties of the President and therefore, sanction under Section 197 (1) of the Code of Criminal Procedure was considered to be necessary before the complaint could be entertained. The act of the accused was treated by the Madras High Court to be well within the scope of discharge of duties or purported discharge of duties of the President and therefore, sanction under Section 197 (1) of the Code of Criminal Procedure was considered to be necessary before the complaint could be entertained. In the fact of the present case as the unauthorised construction was demolished with notice to the complainant to stop construction and thereafter with notice about the actual date and time when the demolition work would be taken up, in my view the Commissioner and the Chairman are entitled to protection under Section 197 (1) of the Code of Criminal Procedure. ( 8 ) FURTHERMORE petitioner No. 2 who is the accused No. 2 in the complaint is not alleged to have done any overt act in. the demolition work and so this prosecution as against him is not maintainable on the face of it. ( 9 ) THE expression T1while acting or purporting to act in the discharge of his official duty as appearing in the section has given rise to a lot of controversy as to the exact meaning and implication of the words. However, the consensus of judicial pronouncement seems to be that to determine whether the alleged offence is committed while acting or purporting to act in discharge of his official duty, the allegation made in the petition of complaint must have to be considered visa-vis the defence that may be put forward in the matter. In the instant case petitioner No. 1 is the District Library Officer and Librarian-in-charge. Petitioner No. 2 is a Government employee of the said library. The petition of complaint as filed before the lower Court shows that petitioner No. 1 wrote a letter to the Chairman of the Municipality with a copy to the complainant stating that the unauthorised construction on the acquired building of the library would be demolished on 26. 10. 1992 at 10 P. M. and that the complainant was directed to remove all kinds of goods from the said unauthorised construction in time otherwise petitioner No. 1 will have no liability for damage, if any to the goods. 10. 1992 at 10 P. M. and that the complainant was directed to remove all kinds of goods from the said unauthorised construction in time otherwise petitioner No. 1 will have no liability for damage, if any to the goods. From annexures to the present application it appears that the petitioner No. 1 having reported the matter to the District Magistrate, Hooghly he was directed to contact Circle Inspector of Police, Uttarpara and to arrange for the demolition work and that the sub-divisional Police Officer, Serampore, Hooghly, while addressing a letter to the Chairman of the Municipality intimated the date and time for the demolition work and requested him to provide necessary labour force to carryon the demolition work. A copy was endorsed to the petitioner No. 1 requesting him to remain present during the operation. The petitioners did not do any overt act but were present when the demolition was made by the labours made available by the Chairman of the Municipality. The demolition work was supervised by the local police. Thus the petitioners acted under orders of their superior authority and whatever they did must be taken to have been done in discharge of their official duties. ( 10 ) BOTH the elements being present in this case there is no doubt that sanction of the Government is required before cognizance of the alleged offence was taken by the learned Sub-divisional Judicial Magistrate. But unfortunately the learned Magistrate did not think that prior sanction was necessary and took cognizance arid thereby made the entire proceeding an illegality and hence liable to be quashed. ( 11 ) UPON considering the materials on record and in view of the facts and circumstances of the case I hold that this is a fit case cognizance of which ought not to have been taken without previous sanction of the Government and in that view of the matter this revisional application is allowed and the impugned prosecution stands set aside and quashed. There shall be no order as to costs. Petition allowed. Impugned prosecution stands set aside and quashed.