Research › Browse › Judgment

Patna High Court · body

1999 DIGILAW 439 (PAT)

Gauri Shankar Prasad v. State Of Bihar

1999-05-19

S.K.CHATTOPADHYAYA

body1999
Judgment 1. Whether in all circumstances, for prosecution of a public servant, sanction under Section 197 of the Code of Criminal Procedure is required to be obtained is a moot question to be answered in this case. 2. On the basis of a complaint that the petitioner in course of an anti-encroachment drive entered in the chamber of the Complainant and abused him in presence of his patients and ultimately dragged him out from his chamber, the Magistrate, after examining the Complainant and his witnesses, took cognizance of the offence against the petitioner under Sections 147, 323, 427, 452 and 504 of the Indian Penal Code. 3. By this application, the petitioner has prayed for quashing of the said order of taking cognizance dated 22.5.1998. Mr. Tara Kant Jha, learned Senior Counsel for the petitioner, relying on the decisions in the case of Director of Inspection and Audit and others V/s. C.L. Subramaniam, 1994 Supp (3) SCC 615; Naresh Mishra V/s. The State of Bihar and another, 1997 (1) PLJR 1012 : 1997 (2) East Cr C 460, has contended that the petitioner being the Sub-divisional Magistrate had gone for implementing the High Court order for removing encroachment and before starting anti-encroachment drive, a general notice to the public to remove the encroachment was issued and pursuant thereto some encroachments were removed in the National Highway with the Police help and if in such circumstance even if some excesses were committed, the petitioner, being a public servant, sanction was required. 4. Mr. Jha contends that as a matter of fact, the Opposite Party No. 2, who is a doctor and his wife Dr. Bimla Roy had threatened to shoot at Junior Engineer, PWD, and used abusive language. The doctor even assaulted the labourers for which a criminal case was instituted against him. Referring to various allegations made in the First Information Report against the doctor, Mr. Jha contends that this complaint-petition is nothing but an outburst of the said criminal case and admittedly there is no personal vendetta of the petitioner against the doctor. According to him, if during the anti-encroachment drive, the petitioner having found resistance acted in excess of his jurisdiction by entering the chamber of the complainant and abused him, the said act of the petitioner must be deemed to be an act or purporting to be act in discharge of his official duty. 5. According to him, if during the anti-encroachment drive, the petitioner having found resistance acted in excess of his jurisdiction by entering the chamber of the complainant and abused him, the said act of the petitioner must be deemed to be an act or purporting to be act in discharge of his official duty. 5. Learned Counsel for the Opposite Party, on the other hand, has contended that there is no dispute so far as the legal position is concerned but in the facts and circumstances of the present case, it has to be seen whether it was necessary for the petitioner to enter the chamber of the complainant and abuse him before his patients. Moreover, learned Counsel submits, there was no necessity for the petitioner to drag the complainant out who was admittedly a handicapped person having one leg. 6. In the case of R. Balakrishna Pillai V/s. State of Kerala and another, (1996) 1 SCC 478 : 1996 (1) East Cr C 301 (SC), their Lordships have settled the controversy on this legal aspect. The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. The observations made in the case of B. Saha V/s. M.S. Kochar, (1979) 4 SCC 177 , have been noticed by their Lordships where it has been pointed out that the words "any offence alleged to have committed by him while acting or purporting to act in the discharge of his official duty" employed Section 197(1) of the Code, are capable of both a narrow and a wide interpretation. But, it was pointed out that if they were construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be. "At the same time, if they were too widely construed, they will take under their umbrella every act constituting an offence committed in the course of the same transaction in which the official duty is performed or is purported to be performed. According to their Lordships, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. According to their Lordships, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly on reasonably connected with his official duty will require sanction for prosecution. It has been observed that it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. 7. Similarly, this Court in the case of Naresh Mishra v. State of Bihar and another, (1997) 2 East Cr C 460 (Pat) while noticing various decisions has held that where the act complained of is done during the discharge of official duty, even if it is in excess to some extent, the sanction is necessary for prosecuting the public servant. The facts of that case may be stated briefly. The petitioner was the Anchol Adhikari who had gone to the village with Panchayat Sevak and some constables in connection with making an inquiry on the allegations of Sarpanch regarding reduction in units done by the petitioner earlier and on that day, the petitioner had made inquiry from the residents of the village. The allegation levelled against him was that he was adamant that the units which had been reduced would remain so as the excess grains had been distributed in other villages. The allegations further continued that when the complainant insisted on being given grains on the valid units, the petitioner abused and took him into custody. This act of the petitioner, according to the High Court, appeared to have been done during the discharge of his official duty as he was holding inquiry and the complainant insisted on being given grains according to the needs before reduction while the petitioner was adamant that the reduced units will only be recognised and would be acted upon. It has been observed that if there appears to be obstruction in the performance of the official duty, the concerned public servant, if having Magisterial power, may apprehend any person and take him into custody for obstruction in the official duty. 8. It has been observed that if there appears to be obstruction in the performance of the official duty, the concerned public servant, if having Magisterial power, may apprehend any person and take him into custody for obstruction in the official duty. 8. Considering the nature of allegations made in the complaint-case, this Court was of the view that the act complained of was done by the petitioner while acting in discharge of his official duty as an Anchal Adhikari in connection with flood relief work. In these circumstances, this Court was of the view that for prosecution of the Anchal Adhikari the sanction was a must. 9. In this background, in the instant case, the allegations made in the complaint petition may be looked into. Apart from other allegations of mala fide against the petitioner the complainant has alleged that in the garb of removal of public land encroachment movement and on false measurement knowingly and intentionally the petitioner got a red mark fixed on the boundary wall of the complainant. The complainant sent a notice under Section 80 of the Code of Civil Procedure to the Collector, Bhagalpur and on completion of the statutory period also filed a suit in the Court of Munsif with a prayer to issue notices against the State of Bihar. The suit was registered as Suit No. 68/96. The prayer for injunction was also prayed which was likely to be heard in near future. The complainant further alleges that on the fateful day, the petitioner along with a large number of labourers and constables came to the premises of the complainant and started demolition. The family members of the complainant requested him first to see the complainant who was at that time treating his patients in the clinic along with his wife Dr. Bimla Roy. The petitioner, it is further alleged, along with 10-11 constables rushed into the clinic and started abusing the comlainant in filthy language and on eing protested took away the licensed gun of the complainant which was lying in another room by the side of the clinic. The petitioner ordered to drag him out from the clinic and the Constable obeyed the order by dragging him, as a result of which the complainant, being of one leg, fell down on the floor. The petitioner ordered to drag him out from the clinic and the Constable obeyed the order by dragging him, as a result of which the complainant, being of one leg, fell down on the floor. Subsequently, the complainant and his wife were brought to Naugachia Police Station and were confined there for the whole day. With these allegations, the complainant filed a case before the Magistrate on which cognizance was taken. 10. Even assuming for the sake of argument that the petitioner had gone to discharge his official duty of removing encroachment but in performance of such duty he did not face any resistance from either of the family members of the complainant or the complainant himself. 11. In these circumstances, in my view, there was no reason for the petitioner to enter the chamber of the complainant and to use filthy languages and order for dragging out the complainant out of his chamber. Moreover, what led him to take the complainant and his wife to the Police Station and detain them there for the whole day is not clear from the records. Thus, in my view, the allegation constituting the offence against the petitioner are not directly or reasonably connected with his official duty. It is the quality of the act, that is important, as held by their Lordships. If it falls within the scope of the aforequoted words, the protection of Section 197 of the Code of Criminal Procedure will have to be extended to the public servant concerned. On the other hand, in this case the allegations made against the petitioner do not show that his action had any direct nexus or relation with discharge of his official duty. 12. Referring to the First Information Report lodged against the complainant Mr. Jha has tried to convince the Court that it was the complainant and his wife who had threatened to shoot at Junior Engineer, P.W.D. and used abusive language and the labourers were even assaulted by the complainant. In my view, at this stage a document, which is not annexed with the complaint petition cannot be looked into by this Court and the defence put forward by the petitioner can only be appreciated by the Court below at an appropriate stage. In my view, at this stage a document, which is not annexed with the complaint petition cannot be looked into by this Court and the defence put forward by the petitioner can only be appreciated by the Court below at an appropriate stage. The petitioner has not denied the assertion of the complainant that he and his wife were detained in the Police Station rather on the contrary, it has been admitted by the petitioner in this application that both of them were kept in custody on 12.8.1996 and were released on the next day i.e. 13.8.1996. 13. Considering all these aspects of the matter, I am of the view that the learned Court below has not committed any illegality in taking cognizance of the offence and issuing process against the petitioner on the basis of the allegations made in the complaint petition. 14. In the result, I find no merit in this application. It is, accordingly, dismissed.