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2000 DIGILAW 464 (PAT)

Banshidhar Singh v. State Of Bihar

2000-03-24

P.K.SINHA

body2000
Judgment 1. ORDER :- This application has been filed by Bansidhar Singh, the then District Magistrate, Madhopura, under Sec. 482 of the Code of Criminal Procedure, praying therein for quashing the entire proceeding in criminal case bearing No. C 101 of 1994 as were the order dated 16-6-1994 passed therein, by the Chief Judicial Magistrate (Addl. Chief Judicial Magistrate), Madhopura, whereby and whereunder the learned Magistrate had taken cognizance of offence under Secs. 419, 420, 468, 182, 120B and 109 of the Indian Penal Code against this petitioner and others. 2 The facts of the case in brief are as follows :- F.I.R. in Madhopura P.S. Case No. 17 of 1986 was filed by one Dhanushdhari Singh, the then Incharge District Supply Officer, Madhopura, against Rajendra Prasad, Lalit Agarwal and Bir Narain Mandal, the last being the Supply Inspector, Madhopura, for the offences punishable under the aforesaid sections of the Indian Penal Code as well under Sec. 7 of the Essential Commodities Act alleging therein that one Rajendra Prasad had filed an application for issuance of licence for dealing in coal business which was got enquired into by the aforesaid Supply Officer and on the basis of the enquiry report licence was granted to Rajendra Prasad on 31-10-1983 along with allotment permit. Subsequently it transpired that in connivance the other accused, Rajendra Prasad had lifted coal and indulged into the black marketing of the same to the tune of lacs of rupees. It was also alleged that in the application Rajendra Prasad such land was described as place of business which was not in existence and out of the allotted coal, only one truck coal was brought to Madhepura and rest was sold in black market. It is further alleged that more coal than allotted was lifted by Rajendra Prasad in the name of the concerned company, namely, M/s. Shiv Coal Traders. It has further appeared from Annexure-2 that charge-sheet was submitted in this case against Lalit Agrawal. 3. Obviously the petitioner was not made accused in the F.I.R. nor charge-sheet was submitted against him. It is further alleged that more coal than allotted was lifted by Rajendra Prasad in the name of the concerned company, namely, M/s. Shiv Coal Traders. It has further appeared from Annexure-2 that charge-sheet was submitted in this case against Lalit Agrawal. 3. Obviously the petitioner was not made accused in the F.I.R. nor charge-sheet was submitted against him. When the matter was considered by the learned special Judge, Madhepura, he vide his order dated 27-2-1994 finding that wrong description of land was given and that after enquiry by Bir Narain Mandal, the then Supply Inspector, Madhepura, the licence was granted by the petitioner as District Magistrate,Madhepura in haste so much so that on application filed on 28-10-1983 the enquiry report was submitted on 30-10-1983 and on the next date the licence was ordered to be issued, took cognizance against Shri Bhubneshwar Ojha, the then District Supply Officer, the petitioner, Shiv Dayal Bhagat, the then Head Clerk in the department, Kamleshwari Sah, an Assistant and Lalit Agrawal along with Rajendra Prasad, Proprietor of M/s. Shiv Coal Traders, Madhopura under Sec. 7 of the Essential Commodities Act as well under Sec. 3 of the Bihar Coal Control Order, 1956. 4. In so far as the charge sheet for the offence under the Indian Penal Code was concerned, the learned special Judge recorded following order :- "Hence let a copy of this order be sent to the learned C.J.M. Madhopura to take cognizance of the offence u/Ss. 419, 420, 467, 468, 182, 120-B and 109 I.P.C. against the above named accused persons of this case along with the copy of charge sheet and diary". 5. This matter was considered by the learned Addl. Chief Judicial Magistrate, Madhepura and the order dated 16-6-1994 mentioned about the aforesaid order of the learned special Judge in Special Case No. 2 of 1986, also mentioned that the original records, charge-sheet and case diary were perused and finding sufficient materials therein the learned Magistrate took cognizance of the offence under the aforesaid sections of the Indian Penal Code against the same set of the accused persons including the petitioner. 6. Shri Rana Pratap Singh, Sr. Advocate for the petitioner and Shri R. K. Prasad, A.P.P., have been heard. 7. 6. Shri Rana Pratap Singh, Sr. Advocate for the petitioner and Shri R. K. Prasad, A.P.P., have been heard. 7. Learned counsel for the petitioner has attacked the order on two grounds, namely, that cognizance of offence was taken by the learned Additional Chief Judicial Magistrate without application of mind since the learned Special Judge in his orders had directed the learned Magistrate to take cognizance for the aforesaid offences, against the same set of accused persons against whom the learned Special Judge had taken cognizance under Sec. 7 of the Essential Commodities Act. It was argued that no such direction could have been issued by the learned special Judge and he ought to have left it at the discretion of the learned Magistrate, but by giving the direction as above, the learned special Judge had foreclosed the exercise of discretion by the learned Magistrate, thereby making the order illegal. 8. The second point, which was argued with more force, was that the order of grant of licence was passed by the District Magistrate while acting or purporting act in the discharge of his official duty and the District Magistrate being a public servant not removable from this office save by or with sanction of the Government, hence the cognizance against him was bad in law as no such sanction was obtained under Sec. 177 of the Code of Criminal P. 9. Obviously, so far as the first point is concerned, it was not proper for the learned special Judge to give a direction to the Chief Judicial Magistrate, Madhepura to take cognizance of offences under Indian Penal Code against such persons against whom even the charge-sheet was not filed. Taking cognizance of offence on a police report is the discretion of the Court taking cognizance which cannot be interfered with in any manner by any Superior Court. However, it appears from the impugned order that the learned Addl. Chief Judicial Magistrate had gone through the case-diary, charge-sheet and the original record of the case and after considering those documents he found, as mentioned in the order, that there were sufficient materials for taking cognizance against aforesaid accused persons, and accordingly, he took cognizance of the offence. 10. However, it appears from the impugned order that the learned Addl. Chief Judicial Magistrate had gone through the case-diary, charge-sheet and the original record of the case and after considering those documents he found, as mentioned in the order, that there were sufficient materials for taking cognizance against aforesaid accused persons, and accordingly, he took cognizance of the offence. 10. Therefore, though the learned Magistrate has mentioned the aforesaid order of the special Judge, but from his order it appears that he has also applied his mind to the documents with him and then taken cognizance of the offence. Therefore, on this account I am not inclined to interfere in the impugned order. 11. In so far as the second point is concerned, I think that this contention of Shri Rana Pratap Singh has to be allowed. 12. Under Sec. 197 of the Code of Criminal Procedure, when any person, who is/was a Judge or a Magistrate, or a public servant not removable from his office save by or with the sanction of the Government (Central or State, as the case may be) is accused in any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, cognizance of such offence by the Courts is barred except with the previous sanction of the Government. 13. It is now well settled that if at the stage of taking cognizance it appears from the material on record that the offence complained of was committed by such public servant while acting or purporting to act in discharge of his official duty, cognizance without the previous sanction of the appropriate Government is illegal. It is equally well settled now that this question of sanction may be raised by the accused not only at the initial stage but also at any stage of the trial. 14. It is also well settled that if the complaint contains any allegation which was committed by such a public servant which was not in course of discharge of his official duty, no such sanction is required. 15. The intention behind Sec. 197 of the Code of Criminal Procedure obviously is to prevent a public servant from being unnecessarily harassed. 14. It is also well settled that if the complaint contains any allegation which was committed by such a public servant which was not in course of discharge of his official duty, no such sanction is required. 15. The intention behind Sec. 197 of the Code of Criminal Procedure obviously is to prevent a public servant from being unnecessarily harassed. In the case of Pukhraj V/s. The State of Rajasthan, (1973) 2 SCC 701 : (1973 Cri LJ 1795), the Postmaster General had slapped a Clerk when the Clerk made a request to cancel his transfer order. Since such an act could not be said to have been committed in discharge of official duty, it was held by the Supreme Court that no sanction under Sec. 197 of the Code of Criminal Procedure was necessary. 16. Even in the Pukhraj case (supra) it was indicated by their Lordships of Supreme Court that even if in discharge of official duty some excess had been committed by the officer concerned, the case of sanction was made out. 17. It also may not be argued that every act of a public official which may constitute an offence does not require sanction on the ground that commission of any offence cannot be said to have been done while acting or purporting to act in discharge of his official duty. The only test is as to whether the act alleged was or was not done while acting or purporting to act in the discharge of his official duty. Even if some offence has been committed while acting or purporting to act in discharge of his official duty by way of transgression, the sanction of the appropriate Government is mandatory without which cognizance cannot be taken. 18. Now coming to the facts of the present case it will appear that after Rajendra Prasad had made application for grant of licence, the District Magistrate had got the matter enquired into and the Supply Inspector, Madhepura submitted his report in favour of the applicant on 30-10-1983. In that report he had recommended for issuance of licence to carry on the business of Coal, as would appear from the order of the Special Judge dated 27-2-1994. In that report he had recommended for issuance of licence to carry on the business of Coal, as would appear from the order of the Special Judge dated 27-2-1994. In the order of Special Judge it was also mentioned that from the case diary it appeared that earlier an enquiry report by Supply Inspector was submitted before the District Supply Officer recommending issuance of licence. It will, therefore, appear that the petitioner as the District Magistrate, who was authorised to grant such a licence, had granted the same on the enquiry made by, and on recommendation of, the officers subordinate to him. 19. The learned Special Judge in the aforesaid order has stated some points indicating the interestedness of the District Magistrate. In that context it was mentioned that the Supply Inspector had given his statement to the Police saying that he was influenced by the District Supply Officer, Madhepura who had said that the man Rajendra Prasad was concerned with the District Magistrate, who had made his signature in the corner of the petition and he wanted the report to the aforesaid effect soon and on that he had reported to the District Supply Officer. Such points can be considered while deciding the case which stage would arrive only after entire evidence is brought on record. But obviously the District Magistrate as licencing authority had granted licence acting in due discharge of his official duty, and on the report and recommendation of his subordinates. 20. Insofar as the question of licencee selling coal in black market on lifting more coal than allotted is concerned, for that he would be liable under law and if in that course any illegal act has been committed with the abetment of any other accused, if proved, a finding to that effect can be given but only after the trial. 21. To me it appears that the act alleged against the petitioner was done while acting and purporting to act in due discharge of his official duty, hence the cognizance is improper for want of sanction. In the case of this petitioner cognizance without sanction of the Government is not in accordance with law and, therefore, has to be set aside. 22. Shri R. K. Prasad, Advocate appearing on behalf of the State also agrees that this case requires sanction of the Government. 23. In the case of this petitioner cognizance without sanction of the Government is not in accordance with law and, therefore, has to be set aside. 22. Shri R. K. Prasad, Advocate appearing on behalf of the State also agrees that this case requires sanction of the Government. 23. In the result, this application is allowed and the impugned order dated 16-6-1994 passed by Additional Chief Judicial Magistrate, Madhepura, so far it concerns the petitioner, Banshidhar Singh, is hereby quashed. Petition allowed.