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1999 DIGILAW 976 (PAT)

Surendra Mohan Sinha v. State Of Bihar

1999-09-23

S.K.KATRIAR

body1999
Judgment S.K.Katriar, J. 1. This application at the instance of the sole petitioner under section 482 of the Code of Criminal Procedure, 1973, is directed against order dated 3.8.93 passed by learned Judicial Magistrate 2nd Class, Gopalganj, in Complaint Case No. 483/93 (Tr. No. 961/93), whereby cognizance of the alleged offences have been taken under sections 323, 491 and 504 IPC, and the petitioner has been summoned to stand his trial. According to the petition of complaint filed in the court of learned Chief Judicial Magistrate, Gopalganj, OP. No.2 (the complainant) alleged that he was on the date of occurrence functioning as assistant teacher in primary school Bathwa Anchal, Gopalganj, under orders of the District Superintendent of Education, he was deputed to act as invigilator of the examinations held on 30.4.93 at Sahyog High School, Bathwa Bazar. According to the further allegations, the examinees had thrown away guess papers, books, chits etc. on the floor of room no. 5 where the examinations were going on. He was picking up the same and throwing out of room. At this moment the petitioner herein (the accused person), sighted O.P. No. 2 doing all that and stormed into the room and caught him (the latter) by his collar, and took him forcibly outside the room. O.P. No.2 protested upon which the petitioner (the accused) started delivering him with fists and slaps and also threatened to kill him. He immediately got himself relieved from that duty and reported to his own school. On the same day, he reported this matter to the District Superintendent of Education in writing who gave the assurance to take appropriate action, but no action was in fact taken. Hence the petition of complaint which explains the delay. The complaint petition was filed on 24.5.93, a copy of which is Annexure-1 to this quashing petition. On these allegations, Complaint Case No. 483/93 was registered in the court of learned CJM, Gopalganj, who passed the impugned order dated 18.8.93. Hence the present quashing petition. 2. While assailing the validity of the impugned order of cognizance, learned counsel for the petitioner submitted that the petitioner was on 29.4.93 the Sub Divisional Officer of Bathwa Sub Division, and was the official incharge for proper conduct of exams in that area. According to him, this position is manifest from the petition of complaint itself as well as from letter contained in memo no. According to him, this position is manifest from the petition of complaint itself as well as from letter contained in memo no. 1573, dated 22.4.93, from 1he District Education Officer to the SDO, Gopalganj, as well as Bathwa requesting him to take care of the law and order situation so that the exams are conducted peacefully. The petitioner was really acting in due discharge of his duties in supervising fair and proper exams and he had in the process exceeded the limits. In such circumstances, in his submission, he is entitled to the protection afforded by section 197 of the Cr. P.C. In other words, the impugned order of cognizance is bad in law on account of lack of previous sanction for prosecution contemplated by section 197 of the Code. 3. None appears on behalf of O.P. No. 2, the complainant, inspite of valid service of notice on him. Mr. Damodar Prasad Tiwary, learned APP, has submitted in opposition. He has relied on the judgment of the Privy Council reported in AIR 1948 PC 128 (H.B.B. Gill V/s. The King), the relevant portion of which is quoted hereinbelow : ".... 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. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held........" 4. I have considered the submissions of the counsel carefully and perused the records, particularly in the absence of the learned counsel for OP. No.2. I have considered the submissions of the counsel carefully and perused the records, particularly in the absence of the learned counsel for OP. No.2. I am of the view that the petitioner, in the facts and circumstances of the present case, is entitled to the protection afforded by section 197 of the Code. Learned counsel for the petitioner is right in his submission that the petitioner was undoubtedly there in discharge of his duties, for maintenance of law and order, and proper conduct of exams. It appears from a plain reading of the petition of complaint (Annexure 1), that he was on his rounds, and when he approached the room no.5 where O.P. No.2 was acting as invigilator of the exams., he had sighted the latter picking up guess papers, books and chits from the ground and throwing out the same. This was quite capable of creating an impression in the mind of a dutiful officer that O.P. No. 2 was colluding with the students and helping them in unfair means and the subsequent, allegedly illegal acts were possibly over-reaction on the part of the petitioner. The relevant part of the petition of complaint is as follows : 5. It is thus manifest that to begin with the petitioner was acting in due discharge of duties and, therefore, is entitled to the protection afforded by section 197 of the Code. I have myself dealt with similar matters in two of my recent judgments. The first one is dated 17.8.99 passed in Cr. Misc. Ho. 4023 of 1994 [1999(3) PLJR 842] (Devendra Kumar Sinha V/s. Har Narain Singh & Anr.), the relevant portion of which is quoted herein below for the facility of quick reference : ".....However, the facts and circumstances before me including the aforesaid two FIRs (Annexures 1 and 2), lead me to the conclusion that the alleged act of raising a boundary wall was a bonafide discharge of his official duties. It is manifest from the FIR (Annexure 2), that there was a call for Bihar Bandh on 24.12.93, and it appears that the hoodlums had become active by 9 AM, and had started their activities from the Bar Library itself. It further appears that the Bar Association and the Collectorate are adjoining each other and have a common boundary wall. It is manifest from the FIR (Annexure 2), that there was a call for Bihar Bandh on 24.12.93, and it appears that the hoodlums had become active by 9 AM, and had started their activities from the Bar Library itself. It further appears that the Bar Association and the Collectorate are adjoining each other and have a common boundary wall. The aforesaid FIR Annexure 1 gives a vivid description of the acts of vandalism and attack on the police personnel as well as some of the executive functionaries which had taken place in the Banka Collectorate during the course of the day. It is manifest from a conjoint reading of the two FIRs and the present complaint petition that the official machinery headed by the petitioner herein were awfully engaged and badly harassed during the course of the date to repel the vandalism of the members of the unlawful assembly which had assembled in the Collectorate premises. It is further clear that the aforesaid passage adverted to in the present petition of complaint and sought to be closed by the petitioner was a passage used by all and sundry, apart from authorised persons like lawyers, their clerks, litigant public, etc. The petitioner must have bonafide thought that if the passage is closed, then the passage will not be used by unauthorised persons and the Collectorate would be safe and secure from hoodlums. It was, therefore, not a seemingly small question of closing a passage, but really the larger question of securing the safety and security of the Collectorate, the nerve centre of the district administration, and also the question of effectively dealing with such Bandh at the call of hoodlums. He must also have found after perusal of the FIR (Annexure 2), that it would perhaps be in the interest of the Bar Association also. The following portion of the complaint petition In question (Annexure 3), may be usefully quoted : "It is thus manifest on the own saying of the complainant (OP. No.1 herein), that the premises of the Bar Association, that of the Collectorate, and the aforesaid opening was being used by unauthorised persons, by the students of the School, and the residents of the near-by colony. A harried and battered DM and SDO towards the end of a gruelling day were not prepared to listen that this was an arbitrary act. Hence the alleged exceses. A harried and battered DM and SDO towards the end of a gruelling day were not prepared to listen that this was an arbitrary act. Hence the alleged exceses. Prima facie, I have no manner of doubt that the accused persons were acting bona fide in closing the opening in the boundary wall in question by putting up a wall there." 6. I, therefore, find and hold for the purpose of disposal of the present quashing petition that to begin with the petitioner was acting in due discharge of his duties for maintenance of proper law and order situation in the area for conduct of proper and fair exams. He had visited the premises in question in discharge of that part of his duty, and all that he saw from a distance would quite likely create an impression in the mind of an active and dutiful observer that OP. No.2 was abetting unfair means. Surely there was no motive on the part of the petitioner other than discharge of his duties, he did not under the colour of his office act for personal ends or with ulterior motives, and had in the process exceeded the limits of discharge of his duties. In view of the long line of cases governing the issue, and also noticed by me in the aforesaid judgment, the petitioner is entitled to the protection afforded by section 197 of the Code. The illustrations given by the Privy Council in its aforesaid judgment show that the protection afforded by Section 197 of the Code will not be available if the incumbent, apparently acting in discharge of his official duties, really acts for personal ends, or with ulterior motives. I have also noticed a large number of relevant judgments on this point in another judgment of mine dated 20.9,99, passed in Cr. Misc. No. 3037 of 1994. I refrain from making any further reference to the said judgment for the reason that the facts of that case were rather different. In such circumstances, the prosecution cannot be allowed to continue in the absence of previous sanction for prosecution. Let it be recorded that an order of this nature does not preclude the appropriate authorities from applying their mind afresh with a view to grant sanction for prosecution. 7. In such circumstances, the prosecution cannot be allowed to continue in the absence of previous sanction for prosecution. Let it be recorded that an order of this nature does not preclude the appropriate authorities from applying their mind afresh with a view to grant sanction for prosecution. 7. In the result, this quashing petition is allowed, the impugned order of cognizance dated 3.8.93, passed in Complaint Case No. 483 of 1993, is hereby set aside.