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1998 DIGILAW 423 (PAT)

Bhola Rai v. State of Bihar

1998-06-28

M.Y.EQBAL

body1998
JUDGMENT M.Y. Eqbal, J. This is a case in which mal practices and illegal acts of the Ministerial staffs of the Civil Courts, Mothari, East Champaran brought into notice of this Court. The petitioner, who was party in Partition. Suit No. 162 of 1992, filed a complaint being Complaint Case No. C 1383 of 1993, against Respondents Nos. 5 to 18 who are Private parties and employees of the Civil Court making allegations of committing offences punishable under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code. 2. The petitioner’s case, inter alia, is that partition suit was filed being Partition Suit No. 162 of 1962 in the Court of the subordinate Judge, Motihari, which eventually ended in compromise and final decree was prepared on 16.02.1966. It is alleged that the certified copy of the compromise decreed was obtained on 23.02.1996 and on the basis of the order passed on compromise petition both the parties came in possession of their respective share. As per the compromise, Respondents No. 5 to 9 who are accused is complaint got share of/bighas 6 kathas and 19 dhurs, wherea the complainant and others got 1-bighas 18 kathas and 1dhur of land in their share. It is further alleged that out of the lands allotted to the complainant, he sold 7.15 kathas of land to seven different persons and vendees were given possession but accused Nos. 1 to 5 started interfering with the possession by making unlawful assembly and at the intervention of the neigh hours a Panchaiti was held in which accused persons named in the complaint petition exhibited certified copy of Real decree of partition suit before the panches which suggested that the accused persons were given share of 8 bighas 8 kathas and 17 dhurs where as actually they were given share of 5 bighas, 6 kathas and 19 dhurs of land. Since the complainant possessed certified copies of 1996 and 1991, he smelt some faul play. The complainant, therefore, made enquiry in the civil court and came to know that accused persons Nos. 1 to 5 of the complainant petition filed requisite for obtaining certified copy of final decree on 18.09.1993 and it was found that the accused persons in connivance with the employees of the Civil Court got interpolation and wrong entry in the compromise decree. 1 to 5 of the complainant petition filed requisite for obtaining certified copy of final decree on 18.09.1993 and it was found that the accused persons in connivance with the employees of the Civil Court got interpolation and wrong entry in the compromise decree. The complainant alleged to have brought this fact to the notice of the Registrar, Civil Court by filling representation on 25.09.1993 and upon whose order the relevant papers were sealed. 3. In the instant case, the grievance of the complainant is that although the complaint was filed on 5.10.1993, but till date cognizance has not been take as according to the Chief Judicial Magistrate, some of the accused persons ate employees of the Civil Curt, necessary sanction has to be obtained. It is stated that file of the complaint case was handed over to Shri Z. Imans, Judicial Magistrate, who examined the complainant on solemn affirmation on 3.12.1993 under Section 202 of the Code of Criminal Procedure. However, the learned Magistrate by order dated 3.12.1993 directed the Registrar, Civil Court, Motihari, to make enquiry into the allegations and to determine as to whether prima facie case is made out against the Respondents. The matter of enquiry hanged for quite long time and ultimately the Registrar, Civil Court, submitted his report dated 30.07.1996. He reported that there is prima facie case of manipulation in the certified copy of the compromise Petition and final decree of partition Suit No. 162 of 1992 issued in the year 1993 in which the Civil Court employees seem to be guilty. Copy of the enquiry report has been filed and annexed as Annexure-4 of this petition. It is stated that on receipt of enquiry report the Judicial Magistrate passed order on 25.11.1996 observing that since the accused persons are employees of the Civil Court and they are public servants, necessary sanction is required. The Magistrate requested the District & Session Judge, East Champaran, Motihar, to accord sanction for prosecution of the staff of the Copying department. It is alleged that the Magistrate sent several letters and remainders to the District & Sessions Judge for according sanction. According to the petitioner, in this way though the complaint was instituted in the year 1993 and the complainant was examined on 2.12.1993, there is no progress in the case and the court is not taking cognizance against the accused persons. 4. According to the petitioner, in this way though the complaint was instituted in the year 1993 and the complainant was examined on 2.12.1993, there is no progress in the case and the court is not taking cognizance against the accused persons. 4. In this case, on 4.11.1997 the parties were heard and notice were issued to respondent Nos. 5 to 18. When the case was listed before me on 22.07.1981 passed order directing the District & Sessions Judge, East Champaran, Motihari to submit a detail report on the allegations made by the petitioner in this writ application. I further directed the Chief Judicial Magistrate to submit a report as to why the complaint filed by the petitioner is still pending. Pursuant to that order both the District & Sessions Judge, Mothari and the Chief Judicial Magistrate Incharge submitted their reports. From perusal of the report of the District & Sessions Judge it appears that the District Judge reiterated the statements made by the complainant to the effect that the Registrar made a thorough enquiry and found that thee were manipulations in the record at several places and employees of the Civil Court committed offences during the discharge of their official duty. However, the District Judge stated in reply to the letter of the Judicial Magistrate that in the matter of sanction under Section 197 of the code of Criminal Procedure, the District Judge-does does not come in the picture. The District Judge further stated that the Judicial Magistrate referred the matter to him in the administrative side and not in the judicial forum and, therefore, it was not desirable for him to give him definite guidelines. The Chief Judicial Magistrate Incharge in this report reiterated the same facts, According to him, since the accused persons are employees of the Civil Court, the matter was referred to the District Judge for according sanction. 5. Having regard to the facts and circumstances of the case and from perusal of the enquiry report submitted by the Register, Civil Court, it is prima facie evident that some of the accused persons, who are employees of the Civil Court, in connivance and in conspiracy with the interested persons made interpolation and manipulation in judicial records. A question, therefore, arises as to whether in view of such allegations, sanction as contemplated under Section 197 of the Code of Criminal Procedure is required for their prosecution. 6. A question, therefore, arises as to whether in view of such allegations, sanction as contemplated under Section 197 of the Code of Criminal Procedure is required for their prosecution. 6. What acts can be alleged to have been committed by a public servant while acting or purported to act in discharge of his official duties is vexed question. However, it has been well settled that the alleged action constituting the offence alleged to have been committed by the public servant must have a reasonable and rational nexus with the official duties required to be discharged by such public servant. Section 197 (1) postulates that when any person which is a public servant is an accused of an offence alleged to have committed by him while acting or purported to act in discharge of their official duties no court shall take cognizance of such offence without previous sanction of the appropriate Government/authority. The Apex court in the case of Shambhu Nath Mishra v. State of U.P. AIR 1997 SC 2102 interpreted the aforesaid section and held that the essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duty. In such a situation, it postulates that the public servant’s act is in furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197 (1) of the code. The Apex court observed hereunder: “The question is : when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc, can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. In furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question pf sanction is clearly illegal and cannot be sustained.” 7. Having regard to the facts and circumstances of the case and the law discussed herein above, I have no doubt in my mind that pendency of the proceeding in the court below for want of sanctions is unwarranted in law. As notice above, from the enquiry report of the Registrar it is evident that some interpolation and manipulation have been made in the judicial records at the instance of the employees of the Civil Court. Such act of the employees cannot be said to be an act done in the discharge of their official duties. No sanction is therefore, required and the court below must proceed forthwith with the complaint case. This writ application is, therefore, allowed and the concerned respondents before whom the complaint case is pending is directed to immediately proceed with the complaint case in accordance with law. 8. Before parting with the order I must observe that there is nothing in the record or in the report submitted by the District and Sessions Judge and the Chief Judicial Magistrate that on the basis of the report of the Registrar, Civil Court, no action has been takes against the employees departmentally. Since the matter is serious, it is desirable that the matter may be brought to the notice of Hon’ble the Chief Justice for doing the needful. Let this record together with the order be placed before Hon’ble the Chief Justice. Ordered Accordingly.