Munder Prasad Lal @ Mandeshwar Prasad Lal v. Shyam Nandan Singh — 1997 DIGILAW 372 (PAT)

Judgment J.P. Singh J., This application under sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the 'Code') is directed against the order dated 3.11.1990 passed by the Chief Judicial Magistrate, Deoghar in P.C.R. Case No. 356 of 1990 by which he has sent the complaint petition filed against the petitioner to the Officer In-charge Deoghar Police Station to institute a case under section 156 (3) of the Code to be investigated by the Sub-divisional Police Officer, Deoghar who will submit final form. 2. The facts of this case are in a very narrow compass. It appears that on 19.10.1990 one Shyma Nandan Singh of Janta Dal Sangarsh Samittee, Deoghar (the presen opposite part)) filed a complaint petition before the learned Chief Judicial Magistrate, Deoghar against the present petitioner who at the relevant lime happened to be the Civil Surgeon Deoghar. In this complaint petition the complainant opposite party had made various allegation against the petitioner under sections 161, 162, 166, 490, 463, 467 and 468 of the Indian Penal Code. On the receipt of the complaint petition the learned Chief Judial Magistrate applied his mind to the facts contained therein but did not examine the complainant on solemn affirmation. On the other band by the impugned order he sent it to the police to institute a case to investigate and to submit final form. This order of the learned Magistrate has been challenged in this revision application. 3. The petitioner, who happened to be the Civil Surgeon of Deoghar at the relevant time, has contended that the Magistrate could not have sent the complaint petition to the police for investigation after taking cognizance of the offence and before examining the complainant on solemn affirmation. The learned Magistrate while acting under section 202 of the Code would not have directed the police to institute the case there by abdicating his own functions. The allegations made in the complain petition made out a case of criminal misconduct by the public servant which is an offence under section 13 of the Prevention of Corruption Act, 1988 (hereinafter called the "said Act") which offence is triable only by the court of Special Judge which is a court of session. Moreover an offence under the said Act could not have investigated by an Officer below the rank of Dy S.P. This order of the learned Magistrate is totally without Jurisdiction. Moreover an offence under the said Act could not have investigated by an Officer below the rank of Dy S.P. This order of the learned Magistrate is totally without Jurisdiction. He has not followed the procedure as laid down by law and has passed the order mechanically without the application of his mind. On these ground it has been contended that the impugned order be quashed. 4. I have heard the parties in great detail. The first point urged on behalf of the petitioner is that the learned Chief Judicial Magistrate could not have passed the impugned order directing the police to investigate the case and to submit the final form. It has been seriously contended before me that before this impugned order dated 3.11.1990 as passed, the Magistrate had applied his mind to the facts of this case; and had accordingly taken the cognizance of the offence and, therefore, he could not have sent the complaint petition to the police for the institution of the case and for the submission of the final form. 5. As against it has been submitted on behalf of the opposite party that it is only when the Magistrate applies his mind to the allegations made in the complaint petition for proceeding under Chapter XV of the Code that he can be said to have taken cognizance of the offence. If, however, the learned Magistrate applied his mind to the allegations made in the complaint petition not for the purposes or proceeding under this Chapter but for ordering police investigation he can not be said to have taken the cognizance of the offence. 6. The law on this point appears to be well settled. If a complaint is made to a Magistrate disclosing a cognizable offence he may be justified in sending it to the police for investigation under section 156 (3) of the Code. This option is available to the Magistrate and is that within his power. The other option available to the Magistrate is that; in a proper case; he may take cognizance of the offence and proceed under Chapter XV of the Code. This preposition of law has been laid down in the case of Gopal Das Sindhi and others Vrs. State of Assam & others (AIR. 1961 S.C. 986). The other option available to the Magistrate is that; in a proper case; he may take cognizance of the offence and proceed under Chapter XV of the Code. This preposition of law has been laid down in the case of Gopal Das Sindhi and others Vrs. State of Assam & others (AIR. 1961 S.C. 986). It is also well settled that once the cognizance has been taken by the Magistrate he is not competent to switch back to a pre-cognizance stage and avail of section 156 (3) of the Code as held in the case of Laxmi Narain Reddy & others Vrs. Narayana Reddy & others ( AIR 1976 S.C. 1672 ) and also in the case of Tula Ram & others Vrs. Kishore Singh (AIR. 1977 Sc. 2401). 7. In the present case it appears that the Magistrate had decided to send the complaint petition to the police under section 156 (3) of the Code before taking cognizance of the offence In other words before proceeding under Chapter XV of the Code he has ordered the police to investigate and to submit the final form under section 156 (3) of the code. Form this it would appear that on this ground the impugned order can not be said to be bad. It has further been submitted on behalf of the petitioner that since the allegations made against the opposite party fell under the provision of the Prevention of Corruption Act, 1988 which is exclusively triable by the Special Judge, who exercises the powers of a Sessions Judge, the learned Magistrate was wrong in passing the order under section 156 (3) of the Code directing the Police to investigate the case. It was his submission that if the case was exclusively triable by the court of Session or by the court of Special Judge which is a court of concurrent jurisdiction the Chief Judicial Magistrate could not have sent it to police for investigation. Relying on the proviso to sub-section (1) of section 202, he has submitted that in the instant case since the allegations made against the opposite party were exclusively triable by the Special Judge it was not open to the Magistrate to send the complaint petition to the police for investigation and submission of final form. Relying on the proviso to sub-section (1) of section 202, he has submitted that in the instant case since the allegations made against the opposite party were exclusively triable by the Special Judge it was not open to the Magistrate to send the complaint petition to the police for investigation and submission of final form. In short it was his submission that since the offence complained of is exclusively triable by a court having concurrent jurisdiction with that of the court of session it was obligatory on the part of the learned Magistrate to follow the procedure prescribed in the proviso of sub section (1) of section 202 of the Code. This argument, though it looks attractive, is devoid of any substance since it has been held in the aforesaid two cases of Laxmi Narain (supra) and Tula Ram (supra) that this proviso to sub section (1) does not bal the Magistrate to order for investigation by the police under section 156 (3) of the Code before taking the cognizance of the offence. As stated above the Magistrate had not as yet applied his mind for the purposes of proceeding under Chapter XV of the Code and, therefore, it cannot be said that he had already taken cognizance of the offence. Therefore, on the strength of these two dscision it is clear that this order of the learned Magistrate passed under section 156 (3) of the Code directing the police to investigate and to submit the final form can not be said to be wrong. 8. It has, however, been pointed out to me on behalf of the learned counsel for the petitioner that this complaint petition filed against him is not maintainable for want of sanction and on this ground alone the impugned order should be quashed. In this connection he has drown my attention to section 197 of the Code which provides that if a public servant not removable from 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 discharge of his official duty; no court shall take cognizance of such offence except with the previous sanction of State Government if the public servant con-concerned is under the employment of the State Government. It has been pointed out on behalf of the petitioner that at the relevant time he was Civil Surgeon, Dumka and, therefore, he was public servant who could not have been removed from his office save by or with the sanction of the State Government. As such, relying on the provisions of section 197 of the Code it has been submitted before me on his behalf that the impugned order which was passed without obtaining the sanction is bad in Jaw and on this ground alone it is liable to be quashed. 9. At the ou1 set it may be pointed out that the bar of section 197 of the Code applies at the time of taking cognizance of an offence and by it the courts are precluded from taking cognizance of the offence against the public servant covered by this section except with the sanction of the Central Government or the State Government as the case may be. In the present case it is not in dispute that no sanction order has been produced before the court though from the copy of the complaint petition, as contained in Annexure I, it appears from last paragraph that the complainant had filed an application before the Government for taking sanction and approval to file the complaint petition and this was the reason for the delay in filing the complaint in the court. In spite of this statement made in the complaint petition no sanction order passed by the State Government could be produced. From this statement made "in the concluding paragraph of the complaint petition, however, it becomes clear that the complainant was also of the view that for the prosecution of the opposite party sanction from the State Government was necessary and for the same he had taken steps to obtain it resulting in delay in filing the complaint petition before the court. 10. No doubt as per section 197 the sanction of the State Government is to be obtained before the court is called upon to take cognizance of the offence. In the present case, that stage has not come. From the impugned order it appears that the learned Magistrate has sent the complaint petition to the police under section 156(3) of the Code for investigation and submission of the final form. In the present case, that stage has not come. From the impugned order it appears that the learned Magistrate has sent the complaint petition to the police under section 156(3) of the Code for investigation and submission of the final form. However, it was pointed out on behalf of the petitioner that the whole exercise; in absence of any sanction order; would became fruitless and the valuable time of a busy public functionary such as the police will be unnecessarily wasted over the investigation and submission of the final form in a case in which the Magistrate is barred from taking cognizance in absence of proper sanction order from the Stale Government. I find force in this contention of the learned counsel. It is well settled by a catena of decisions that the sanction must be obtained at the earliest stage. It has been laid down that whenever a public servant or for that matter of fact any person is charged with an offence; the court should at the earliest stage considered whether the sanction is necessary and of so whether it has beer duly obtained. It is well settled that the plea :of want of necessary sanction should be gone into in the earliest instance for the simple reason that if no sanction is obtained till the stage of taking of cognizance the entire exercise will become fruitless and waste of public time. 11. Before proceeding any further I would like to briefly refere to the allegations made in the complaint petition to find out whether as per those allegations the petitioner can be said to have committed offences while acting or purporting to act in discharge of his official duty. The law on this point appears to be well settled and the two conditions of the operation of section 197 are as follow :- (f) That the public servant is removable from the office by the State Government or the Union Government and not by any lesser authority, and (ii) That he is an accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. It is clear that the immunity from prosecution without sanction extends only for such acts which can be shown to be done in discharge of official duty or can be shown to be done in discharge of official duty or can be shown to be done in purported discharge of such duty. 12. There has been much controversy as to exact meaning and application of the words "while acting or purporting to act in discharge of his official duty." If there is same thing in the nature of act complained of or some thing that attaches to the official character of the person doing it then only it will be covered under the aforesaid clause. Lord Simonds in the case of H.H.B Gill and another Vrs. The Kind (A.I.R. 1948 P.G. 128) has observed as follows:- "Their Lordships.........cannot accede to the view that the relevant words have the scope that has in some cases been given to them. 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. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act; nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining though the examination itself may be such an act. 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" (emphasis supplied). 13. In the case of Dr. Hori Ram Singh Vrs. Emperor (A.I.R. 1939 F.C. 431) it has been held that this section is not intended to apply to acts done purely in a private capacity by a public servant. In order to bring any act of the public servant within the perview of this section it has to be shown that it was ostansibly done by him in his official capacity in the execution of his duty which would not necessarily be the case merely because it was done at the time when he held such office nor even necessarily because he was engaged in his official business at the time. This case has been relied upon by the Hon'ble Supreme Court in the case of Shreekantiah Ramayya Munipalli & ors. Vrs. State of Bombay (A.I.R. 1955 S.C. 287) in which the accused who was entrusted with the Government store entered into a conspiracy to defraud Government of these properties and sold them to a person without crediting the money to the Government. It was held that the entrustment and/or dominion was in an official capacity and there could be no disposal lawful or otherwise save by an act done or purporting to be done in an official capacity and, therefore, section 197 of the Code applied, inasmuch as an official act can be performed in discharge of his official duty as well as in dereliction of it. Also in this case it has been held that if the acts complained of are in separately connected with the duties attached to the office sanction would be necessary otherwise not. The Hon'ble Supreme Court has held in the aforesaid decisions that in order to necessiate sanction there must be a reasonable connection between the act complained of and the discharge of the official duty. What has to be found out is whether the act and the official duty were so enter-related that one could 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 as held in the case of Prabhakar Vrs. Sinari A.I.R. 1969 S.C. 686. 14. In the case of Amrik Singh vs. State of Pepsu ( AIR 1955 S.C. 309 ) it has been held that not all cases of criminal breach of trust or misappropriation by public servants are outside the scope of section 197 of the Code. Even when the charge is of misappropriation by a public servant whether sanction is required will depend upon the facts of each case. If the acts complained of are in separately connected with the duties attached to his office sanction would be necessary but if there is no necessary connection between them; the official status furnishing only the occasion or opportunity in the acts; no sanction would be required. If the acts complained of are in separately connected with the duties attached to his office sanction would be necessary but if there is no necessary connection between them; the official status furnishing only the occasion or opportunity in the acts; no sanction would be required. In the case of Shreekantiah (supra) it has been observed that if section 197 of the code 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 discharge of the official duty as well as in dereliction of it. From the aforesaid authoratative pronouncement of the Hon'ble Supreme Court the law on this point appears to be well settled. 15. It may in this connection be mentioned that in the case of Prabhakar (supra) it has clearly been held that where a public servant is prosecuted simultaneously for more than one offence and if any offence out of them requires sanction than without prior sanction of that offence the Magistrate can not take cognizance of the offence and try. 16. In the present case the allegations made in the complaint petition against the petitioner also fall under section 6 of the Prevention of Corruption Act. This section has effected section 197 of the Code in the matter of sanction for prosecution of public servant under that act for offence under sections 161, 164, 165 or 401 of the Indian Penal Code or sections 5(2) or (3A) of the Prevention of Corruption Act, 1947, in two ways, namely, (i) sanction for prosecution under the Act is necessary in Case of all grades of public servant whether removable by the Government or by the lesser authority (ii) the commission of the words "while acting or purporting to act in discharge of his official duty" from section 6 of the aforesaid Act indicates a clear departure in policy and sanction in 'respect of any office under aforesaid sections is necessary whether or not it is committed in discharge of official duty. Thus to this extent section 197 of the Code is affected by section 6 of the Prevention of Corruption Act. 17. Thus to this extent section 197 of the Code is affected by section 6 of the Prevention of Corruption Act. 17. In view of the detailed discussions relating to the scope of section 197 of the Code I now propose briefly to summerise the allegations made in the complaint petition against the opposite party. In paragraph 2 it has been alleged that the Civil Surgeon, Deoghar cheated the public, defalcated and embazzlement of Government money and also has misused the agencies of the Bihar Government, Health Department. In paragraph 3 it has been alleged that the opposite party has made illegal appointments and had also defalcated the monthly pay allowances of the staff of the Primary Health Centre. Further allegation in paragraph 4 is that he made illegal appointments of A.N.N. Trainees at Deoghar after taking illegal gratification. In paragraph 6 it has been alleged that he did not maintain the regular account of the Government money as a result of which an enquiry was set up, in course of which various irregularities were found out and opposite party was put under suspension. In paragraph 12 it has alleged that he defalcated the Government money and damaged the national property. As per paragraph 14 it has been alleged that he committed the offence under sections 161, 162, 166, 420, 463, 467 and 468 of toe Indian Penal Code. From the aforesaid allegations made in the complaint petition there can be no manner of doubt that the acts alleged against the petitioner can very well come under the category of the acts purported to have been done in discharge of his official duties and, therefore, sanction under section 197 of the Code was necessary for his prosecution. So far as the allegation made under the Prevention of Corruption Act is concerned it need not be stated that for prosecuting any person under the provision of the aforesaid Act sanction would be necessary even if the act complained or was not done or purported to be done in discharge of official dnties. It is, thus, clear that the present complaint petition is not maintainable. 18. Before concluding, however, I would like to briefly mention a very peculiar fact that has come to my notice. It is, thus, clear that the present complaint petition is not maintainable. 18. Before concluding, however, I would like to briefly mention a very peculiar fact that has come to my notice. In this complaint petition it has been alleged that an enquiry was set up the Government against the petitioner in the course of which he was suspended and enquiry was held against him. It is not made clear what happened to that enquiry and if actually the Government had held an enquiry against the petitioner after placing him under suspension what prevented the Government from prosecuting him after necessary sanction Another important thing that has come to my notice is that the complainant has described himself as member of Janta Dal, Sangarsh Samittee, Deoghar. It is not clear what this Samittee has got to do with the prosecution of a public servant. A person can from any such Samittee and can arrogate to himself any function even if he is the sole member of such Samittee. Such Samittees and their type have mushroom in our present day society and are trying to interfere and influence the procedure as established by law. In any case it is not made clear how the complainant has got no, locus standi in the matter. 19. From the detailed discussions made above it becomes clear that the complaint petition as also the impugned order are liable to be quashed. They are, accordingly, quashed. Order Quashed.