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1998 DIGILAW 106 (GAU)

Naba Kumar Bora v. Tanuja Konwar

1998-04-21

D.N.CHOWDHURY

body1998
The petitioner is the Officer-in-charge of Dhemaji Police Station, District Dhemaji who is arraigned as an accused person on a complaint case presented by Smti Tanuja Konwar-opposite party herein before the learned Chief Judicial Magistrate, Dhemaji. The complaint reads as follows : "The complainant most respectfully states that on 26.8.97 at around 10 AM the aforesaid accused person has assaulted my husband while he was cutting a tree of our garden nearby the road. The accused has also assaulted my father-in-law Shri Surjya Konwar. When the complainant tried to interfere, she was also chased. Later the accused has beaten up the complainant's husband with branches of tree and taken him to police station and admitted him in Civil Hospital on the same day after assaulting him in the police station. Presently he is in serious condition and on the verge of death. From 10 AM of 16.8.97 till date he has not been produced before the police station; but on the same day the complainant's father-in-law was also picked up and brought to the police station without any reason. After sometime the complainant went to the police station for giving some clothes to her husband where the accused has assaulted her with lathi; presently the complainant is undergoing treatment in the Hospital, the witnesses will put proof the case." 2. On examination of the complainant as well as the witnesses present and upon considering the injury report of Sri Prabhat Konwar, the husband of the complainant, the learned Chief Judicial Magistrate, Dhemaji found sufficient grounds for proceeding against the accused petitioner under sections 342, 323 IPC and accordingly issued summons on the accused by his order dated 2.9,97. the accused petitioner appeared before the learned Chief Judicial Magistrate on 12.9.97 and the learned Chief Judicial Magistrate allowed the petitioner to go on PR Bond of Rs.2000/-. The petitioner apprised the Court by a petition that the members of the Bar Association are not agreeable to appear on his behalf as per the decision of the Dhemaji Bar Association. The learned Chief Judicial Magistrate by his order dated 12.9.97 accordingly informed the petitioner accused that he shall be at liberty to appoint any lawyer from any Bar Association or otherwise petitioner can move the proper Court for appropriate remedy under the law. Hence the petition. 3. Mr. The learned Chief Judicial Magistrate by his order dated 12.9.97 accordingly informed the petitioner accused that he shall be at liberty to appoint any lawyer from any Bar Association or otherwise petitioner can move the proper Court for appropriate remedy under the law. Hence the petition. 3. Mr. BD Das, learned counsel appearing on behalf of the petitioner firstly questioned the cognizance of the offence by the learned Chief Judicial Magistrate in the absence of prior sanction under section 197 CrPC. Mr. Das, the learned counsel submitted that the accused is the Officer-in-charge of Dhemaji Police Station and the offence alleged to have been committed by the accused petitioner is said to have been committed by him while purporting to act in the discharge of his official duties. The act complained of is itself done by the public servant in the discharge of his official duties and therefore the sanction under section 197 CrPC was imperative submitted the learned counsel for the petitioner. In support of his contention Mr. Das referred to a decision of the Supreme Court in R. Balakrishna Pillai vs. State of Kerala reported in (1996) 1SCC 478 and Ramkrishna Shankar Avhad vs. Rajendra Jagannath Parikh & another, reported in 1997 Crl LJ183. Mr. Das, the learned counsel submitted that even otherwise the facts situation demand the transfer of the case from Dhemaji to Lakhimpur, the nearest district which is situated 70/80 KMs away from Dhemaji. Mr. Das, the learned counsel pointed to the averment made in the petition about the unwillingness of the Bar member to defend the case of the petitioner. It was averred that the Dhemaji Bar Association on a resolution dated 1.9.97 pressed for a judicial enquiry into the incident as well as his removal. Mr. Das submitted that since the Bar members decided not to defend him, the case may be transferred to Lakhimpur District so that he can take the legal assistance of the North Lakhimpur Bar. 5. Mr. TJ Mahanta, learned counsel for the opposite party contested the petition and submitted that this case has nothing to do with the sanction under section 197 CrPC so far the offence alleged in the complaint petition. Discharge of official duty did not conceive of assaulting and injuring a citizen and other inmates of the family without any justification. Mr. Mr. TJ Mahanta, learned counsel for the opposite party contested the petition and submitted that this case has nothing to do with the sanction under section 197 CrPC so far the offence alleged in the complaint petition. Discharge of official duty did not conceive of assaulting and injuring a citizen and other inmates of the family without any justification. Mr. Mahanta, the learned counsel for the complainant did not seriously contest about the resolution of the Dhemaji Bar Association refraining to render legal assistance to the accused. 6. The constitutional scheme in India as well as the system of criminal jurisprudence guarantees fair and impartial enquiry and trial. Chapter XXI of the Code of Criminal Procedure contains the power of transfer of criminal cases. Under section 406 the power of transfer is vested with the Supreme Court and under section 407 the said power is vested on the High Court for transfer of a case keeping in mind the ends of justice and fair play in action. Under section 406 the Supreme Court is conferred with the power to transfer cases and appeals from one High Court to another High Court or from a criminal Court subordinate to one High Court to another criminal Court of equal or superior jurisdiction subordinate to another High Court. Section 407 conferred upon the High Court to transfer cases and appeals whenever it is made to appear to the High Court- (a) that a fair and impartial inquiry or trial cannot be had in any criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice. The High Court may act suo mqtu, or on the application of a party interested or on the report of the lower Court. The sole criterian for the exercise of this power is for the ends of justice and nothing more or nothing less. Ends of justice undoubtedly is higher than the law. The power is to be exercised in the -interest of justice and not to be used as an instrument to harass the opponent. The sole criterian for the exercise of this power is for the ends of justice and nothing more or nothing less. Ends of justice undoubtedly is higher than the law. The power is to be exercised in the -interest of justice and not to be used as an instrument to harass the opponent. The power is to be exercised judiciously and in a balanced manner keeping in mind the interest of both the parties. The ground of transfer is delineated at para 5 of the petition which reads as follows : "That thereafter the petitioner came to know that the Dhemaji Bar Association has taken a resolution on 1.9.97 and pressed for a judicial inquiry into the incident as reflected in the complaint case and petitioner's removal and after having knowledge of the same and the fact regarding unwillingness of the Bar Members to defend to petitioner, the petitioner submitted an application for legal help but on consideration of the same the learned Chief Judicial Magistrate by an order dated 12.9.97 while rejecting the petitioner's prayer of legal help inter alia observed that the petitioner is at liberty to move appropriate application for transfer of his case." The transfer is sought on the ground that the Dhemaji Bar Association has decided to refrain from assisting the accused by any member of the Association. 7. The assistance of an Advocate in a trial or a suit is of utmost importance. The Advocates are only the recognised class of persons to practise the profession of law. The legal profession is not only a dignified profession, it is also a serious occupation. It is honourable and distinguished calling and all the members of the profession belong to an illustrious and eminent class of people. The dignity of the members are in their hands, the duty of the lawyer is to assist the Court in the administration of justice. The practice of law in essence is a service to the society. He or she is therefore to act in a distinguished manner assiduously and scrupulously adhering to the code of conduct behaving to the great profession keeping in mind the highest tradition of the profession without indulging in any activity which may tend to lower the image of the profession. 8. He or she is therefore to act in a distinguished manner assiduously and scrupulously adhering to the code of conduct behaving to the great profession keeping in mind the highest tradition of the profession without indulging in any activity which may tend to lower the image of the profession. 8. Under the rules under section 49 (1) (c) of the Advocates Act read with the proviso thereto known as Standards of Professional Conduct and Etiquette in section II (11) provides as follows : "11. An Advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he proposes to practise at a free consistent with his standing at the Bar and the nature of the case. Special circumstance may justify his refusal to accept a particular brief." Rule 15 of section II provides as follows : " 15. It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyality is to the law which requires that no man should be scrupulously avoided." The Advocates are a privileged class no doubt at the same time is a service oriented profession. Free and independence of judiciary as well as the rules of law depend on free and independent legal profession, refusal to render justice affects the administration of law and undermines the rule of law which is the bedrock of the Constitution-"those who live by law should keep the law".(Recalled the statement of Chief Justice Meleod in re Juvanlal Varjrao Desaid & others reported in AIR 1920 Bombay 168). 9. The Dhemaji Bar Association might taken the above decision on the spur of the moment. It may reconsider the decision in due course. Presently I am assuming that the members of the Dhemaji Bar are refusing to render any assistance to the Court as well as to this accused. Except the above allegation there is no other allegation that there is lack of congenial atmosphere in the Court or the safety of the accused or the witnesses of the accused are at peril. Presently I am assuming that the members of the Dhemaji Bar are refusing to render any assistance to the Court as well as to this accused. Except the above allegation there is no other allegation that there is lack of congenial atmosphere in the Court or the safety of the accused or the witnesses of the accused are at peril. The Court is the master of its own situation and it is naturally expected that the Court will assure and ensure a favourable condition during the trial and therefore the petitioner did not make and allegation in that regard. If trial can proceed at Lakhimpur there is no justification that the trial can not proceed at Dhemaji, other than the members of the Dhemaji Bar other learned members of the profession are not unwilling to render service to him. The petitioner on his own sought transfer to North Lakhimpur accepting the service of any member of the North Lakhimpur Bar. In that situation it would be open for the petitioner to take aid of the counsel from the North Lakhimpur Bar or any other counsel who can render legal aid to him. Transferring the entire case on the ground stated in the petition will undoubtedly create general inconvenience to the parties and witness and it will not be expedient for the ends of justice. On the facts and circumstances of the case, the criminal case need not therefore be transferred from Dhemaji to North Lakhimpur. 10. As to the requirement of sanction under section 197 CrPC it is to be judged accommodation of the facts situation. The legislature has used the word, when any person who is or was......is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties (emphasis supplied). It is to be construed in a balanced manner. It should neither be construed in a constricted fashion nor the same is to be construed too liberally. It is not every offence, committed by a public servant, that is entitled to protection under section 197 (1). The act constituting the offence must have a direct bearing with the official duty. It is to be construed in a balanced manner. It should neither be construed in a constricted fashion nor the same is to be construed too liberally. It is not every offence, committed by a public servant, that is entitled to protection under section 197 (1). The act constituting the offence must have a direct bearing with the official duty. "It is the quality of the act that is important, and if it falls within the scope and range of his official duty, the protection contemplated by section 197 CrPC will be attracted"- Baijnath vs. State of Madhya Pradesh, reported in AIR 1966 SC 220 (227). 11. To attract the provisions of this section the offence is required to be committed by a public servant either in his official capacity or under the column of the office held by him. It is to be judged on the facts and circumstances of each case. The broad test is already indicated comprehensively by the Federal Court in Dr. Hori Ram vs. Emperor, reported in 1939 FC 43, in HHB Gill vs. King, reported in AIR 1948 PC 128 and the Supreme Court in Matajog Dobey vs. HC Bhari, reported in AIR 1956 SC444; Baijnath vs. State of MP (supra) and B. Saha vs. MS Kochar, reported in (1979) 4 SCC177.and host of other decisions including the decision cited at the Bar by Mr. BD Das in R. Balakrishna Pillai vs. State of Kerala (supra). The principle of law as restated by the Supreme Court in Matajog Dobey vs. HC Bhari (supra) is rehearsed below : "In the matter of grant of sanction under section 197, 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 ......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 of fanciful claim, that he did it in the course of the performance of his duty." 12. The decision of the Supreme Court in R. Balakrishna Pillai (supra) is not applicable in this. The gravamen of one of the charge was that the accused, while functioning as a Minister sold electricity to an industry in the State of Kamataka "without the consent of the Govt. The decision of the Supreme Court in R. Balakrishna Pillai (supra) is not applicable in this. The gravamen of one of the charge was that the accused, while functioning as a Minister sold electricity to an industry in the State of Kamataka "without the consent of the Govt. of Kerala, which is an illegal act" under the provisions of the Electricity (Supply) Act, 1948 and the rules framed thereunder. The appellant, in the above case, it was alleged that in pursuance of the said alleged conspiracy abused his official position and illegally sold certain units to the private industry in Banglore, which profited the private industry. The accused in the above case evidently acted in discharge of his duties as a Minister. On bare perusal of the charge it is thus clear that the act alleged against the accused was directly and reasonably connected with his official duty as a Minister to attract the provision of section 197 (1) of the Act. The other decision cited by Mr. BD Das, the learned counsel for the petitioner e.g. Ram Krishna Shankar Avhad (supra) is also a decision on fact. The above decision is based mainly on the interpretation of section 161 of the Bombay Police Act limiting the time of filing criminal complaint by six months. 13. The complaint petition as such when judged on the broad test as indicated above it cannot be said that the sanction of the appropriate Govt. is necessary for prosecution of the accused petitioner for an offence under sections 342,323IPC as things stand now. It is however needless to state that in deciding the question as to whether sanction for prosecution was at all required, the Court is not necessarily to confine itself to the allegation in the complaint. It can also take into account all material evidence on record at the time when question is raised and considered. The question of sanction can be raised and considered at any stage of the proceeding. 14. On the basis of the materials on record as on now available it can not however be said that the learned Chief Judicial Magistrate faulted at in taking cognizance of the offence. It would however be open for the accused petitioner to raise the question of sanction during the course of the trial, if situation so demands as indicated earlier. 13. It would however be open for the accused petitioner to raise the question of sanction during the course of the trial, if situation so demands as indicated earlier. 13. In the light of the observations as stated above, the revision petition stands dismissed. The interim order, if any, stands vacated. The learned Chief Judicial Magiatrate, Dhemaji is accordingly directed to proceed with the trial in accordance with law in an expeditious manner.