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2000 DIGILAW 6 (PAT)

Baidyanath Hathi v. State Of Bihar

2000-01-05

INDU PRABHA SINGH

body2000
Judgment 1. This is an application under Ss. 397, 398 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 15-11-1994 passed in Complaint Case No. C.632/94 by the Chief Judicial Magistrate, Sitamarhi by which he dismissed the complaint petition filed on behalf of the petitioner. 2. From the present application it appears that the petitioner had filed the aforesaid complaint case in the Court of the Chief Judicial Magistrate, Sitamarhi alleging therein that on 1-10-1994 at about 4-30 p.m. while the petitioner was inside his house, opposite party No. 2, Shri Narendra Prasad Singh, District Certificate Officer, Sitamarhi all of a sudden entered into his house and asked the petitioner to come out. When the petitioner came out of his house he was told by opposite party No. 2 that a sum of Rs. 71,000.00 is due against his brother Raghunath Hathi for which a certificate case was pending. On enquiry, the petitioner told opposite party No. 2 that his brother was not inside the house but had gone to Dumra. Opposite party No. 2 insisted on the petitioner to pay the certificate money on which the petitioner informed him that this amount was taken by his brother Raghunath Hathi about which he had no knowledge. On this opposite party No. 2 lost his temper and abused the petitioner in a filthy language by stating "Sala Madhar Chod Netagiri Batiyata Hai" and also pushed the petitioner and forced him to sit on the Jeep. The petitioner was brought to Village-Mahsaul where another person, namely. Bashir Ahmad Mukhiya was also arrested. Both of them were taken to Sitamarhi police station and were kept under lock. Opposite party No. 2 told the petitioner that if his brother would deposit Rs. 10,000.00 only then he could be let off. It was only when this amount was deposited by his brother Raghunath Hathi then the petitioner was let off from the police station. He was intentionally insulted by opposite party No. 2 in presence of public. He happens to be a respectable citizen and the Mukhiya of Punar Gram Panchayat since 1978 and commands substantial respect in the district. Accordingly, the petitioner filed a complaint petition in the Court of the Chief Judicial Magistrate, Sitamarhi making allegations under Ss. 323, 342, 504 and 506 of the Indian Penal Code. 3. He happens to be a respectable citizen and the Mukhiya of Punar Gram Panchayat since 1978 and commands substantial respect in the district. Accordingly, the petitioner filed a complaint petition in the Court of the Chief Judicial Magistrate, Sitamarhi making allegations under Ss. 323, 342, 504 and 506 of the Indian Penal Code. 3. The offences alleged against the opposite party No. 2 as per the complaint petition (Complaint Case No. C-632/94) had no nexus with the performance of his official duty as it is not the duty of the public servant to abuse in filthy language to a respectable man of the society and to defame and humiliate him in the eyes of the public and also to assault him or to forcibly take him to any place muchless to a police station and to get him confined therein putting him in wrongful confinement. The performance of the official duty by any public servant cannot extend to the stage of commission of the offences alleged in the complaint petition for which the public servantcan claim any protection under S. 197 of the Code. The learned Chief Judicial Magistrate by the impugned order, however, did not examine the petitioner on solemn affirmation, he simply dismissed the complaint petition for want of sanction under S. 197 of the Code. 4. The petitioner has contended that the impugned order is bad in law and wrong on facts. It is fit to be set aside. The offence alleged against the opposite party No. 2 can not be said to be in performance of his official duty or even in purported performance of the same. The learned Chief Judicial Magistrate has mislead himself by passing the impugned order by holding that the sanction under S. 197 of the Code was necessary and this has resulted in grave miscarriage of justice. On these grounds it has been prayed that the impugned order be quashed and the learned Court below be directed to make further enquiry into the case and to take cognizance against opposite party No. 2. 5. A counter affidavit has been filed on behalf of the opposite party No. 2 in which it has been contended that there was certificate case no. 148/89-90 between State Bank of India and Raghunath Hathi the proprietor M/s. Meera Stores. The present petitioner as also his father were also being proceeded against in the said certificate case. 5. A counter affidavit has been filed on behalf of the opposite party No. 2 in which it has been contended that there was certificate case no. 148/89-90 between State Bank of India and Raghunath Hathi the proprietor M/s. Meera Stores. The present petitioner as also his father were also being proceeded against in the said certificate case. When this opposite party visited the residence of the petitioner he did not get down from his jeep. The Sub Inspector of Police who accompanied him had informed the petitioner that he had body warrant against all the three certificate debtors including the present petitioner. The petitioner informed them that his brother Raghunath Hathi is at the shop in Sitamarhi and it was he who had taken the loan from the Bank. He, however, offered to accompany them to the shop where, however, his brother Raghunath Hathi was not available. No force was used against the present petitioner nor was he abused or insulted. He was arrested without any protest or force. Whatever this opposite party did was in performance of his official duty and, therefore, the sanction for his prosecution is required under S. 197 of the Code. He has, accordingly, prayed that this revision application may be dismissed. 6. I have heard the parties in detail. I have also perused the impugned order according to which the complaint petition was dismissed for want of sanction for prosecution under S. 197 of the Code. The law on this point appears to be quite clear. Sec. 197 of the Code is designed to facilitate an effective and un-hampered performance of official duties by public servants by providing for scrutiny into the allegations made against them. This section is to be construed neither too narrowly nor too widely because in a strict sense the commission of an offence can never be a part of ones official duty. This section does not offer a complete exemption from prosecution. However, the question whether sanction is necessary for prosecution in a particular case is to be determined (at the time of taking of cognizance) only on the basis of the allegations made in the complaint petition and not on the basis of what is alleged by the accused by way of his defence. However, the question whether sanction is necessary for prosecution in a particular case is to be determined (at the time of taking of cognizance) only on the basis of the allegations made in the complaint petition and not on the basis of what is alleged by the accused by way of his defence. In the case of K. N. Shukla V/s. Navnit Lal Manilal Bhatt, AIR 1967 SC 1331 : (1967 Cri LJ 1200) the Hon ble Supreme Court has held that the question of sanction to be determined is to be based on the allegations made in the complaint petition and not on the basis of what is alleged by the accused. In determining whether the offence was such as required sanction under S. 197 the criminal acts attributed to the accused in the complaint are to be taken as alleged; whether such allegation is true or false cannot be considered at this stage, the same must be kept for the trial. This view finds support from another decision of the Hon ble Supreme Court in the case of Akhilesh Prasad V/s. Union Territory of Mizoram, 1981 Cri LJ 407 : ( AIR 1981 SC 806 ). In other words at the time of taking cognizance if the allegations in the complaint do not attract the protection of S. 197 the Court cannot throw out the complaint for want of sanction merely because the accused a public servant might possibly successfully establish at the trial that he had done the act complained of in discharge or purported discharge of his official duties, as has been held in the case of Giani Ajmer Singh V/s. Ranjit Singh Grewal, AIR 1965 Punjab 192 : (1965 (1) Cri LJ 585). 7. From what has been stated above it is clear that at this stage of taking cognizance the question whether the sanction under S. 197 of the Code is necessary or not is to be determined on the basis of the allegations made in the complaint petition and not on the basis of the defence as alleged by the accused. In the present case in the complaint petition it has been specifically stated that opposite party No. 2 had come to the house of the present petitioner and asked him forpayment of certificate dues standing in the name of his brother Raghunath Hathi for which a certificate case was started. In the present case in the complaint petition it has been specifically stated that opposite party No. 2 had come to the house of the present petitioner and asked him forpayment of certificate dues standing in the name of his brother Raghunath Hathi for which a certificate case was started. The petitioner had pointed out that he was no way concerned with any such loan taken by his brother Raghunath Hathi but he offered to take opposite party No. 2 to the shop of Raghunath Hathi where he was expected to be present. On this opposite party No. 2 lost his temper and filthily abused the petitioner by expressing the abuses noted above. It has been argued before me that it can be no part of the performance of the official duty by a public servant to abuse a person filthily specially when it was his brother and not he who was the certificate debtor and, therefore, there was absolutely no occasion for opposite party No. 2 to charge the petitioner for the payment of dues much less to abuse him in a filthy language. In his counter affidavit opposite party No. 2 has stated that the petitioner and his brother as also their father were the certificate debtors. As pointed out above at this stage I am not concerned with the defence taken on behalf of the accused as has been repeatedly held by the Hon ble Supreme Court in the decisions noted above. From the impugned order also it would appear that when opposite party No. 2 approached the present petitioner he told him that the certificate case was in the name of his brother, Reghunath Hathi to which he had disclosed his ignorance. He, however, offered him to take to the shop of his brother Raghunath Hathi. It further appears from the present petition that the present petitioner was released only after a sum of Rs. 10,000.00 was realised from his brother, Raghunath Hathi. From the aforesaid it would become clear that as per the complaint case it was not the present petitioner but his brother, Raghunath Hathi, who was certificate debtor and opposite party No. 2 had taken the law in his own hands by not only demanding the certificate dues from the present petitioner but also by abusing him in the filthy language. On behalf of the petitioner it has seriously been contended before me that it can never be the part of a official duty of any public servant to ask for the payment of certificate dues not from the certificate debtor but from his brother who was not concerned with this loan. Any such action of the public servant will also not come within the expression "acting or purporting to act in discharge of the official duty". Moreover the act complained of is not integrally connected with the duties attached to the office so as to be inseparable from the same as abusing a person in filthy language, even if he is the certificate debtor himself, cannot be said to be in discharge of a official duty. The act complained of cannot be said to be integrally connected with the duties attached to the office of opposite party No. 2 and cannot be said to be inseparable from the same. In the case of B.P. Srivastava V/s. N. P. Mishra, AIR 1970 SC 1661 : (1970 Cri LJ 1401) it has been held that the protection of S. 197 of the Code can only be available to the public servant if the act complained of is so integrally connected with the duties attached to his office so as to be inseparable from the same. In the present case it is not so. Hence the requirement of sanction under S. 197 of the Code, as held by the learned Court below, is not necessary before taking cognizance against the opposite party No. 2. The test whether the act complained of is integrally connected with the official duty would not be satisfied where there is reasonable connection between the act complained of and the official duty, such as the offences of beating or torture by a Police Officer while discharging his duty of investigation. In this connection a reference may also be made to the case of Surjeet Singh V. Jit Singh, 1998 Cri LJ 3562 (Punj and Hry). From the said case it would appear that one Juldip Singh was arrested by the police for offences under Ss. 380/457 of the Indian Penal Code. However, he was taken into custody where he died. It was alleged that there was a conspiracy amongst the Police Officers to kill him. From the said case it would appear that one Juldip Singh was arrested by the police for offences under Ss. 380/457 of the Indian Penal Code. However, he was taken into custody where he died. It was alleged that there was a conspiracy amongst the Police Officers to kill him. The Doctor who conducted the post mortem examination held that the deceased was hit with legs and fists in the stomach and chest. The totality of the medical evidence gave rise to a strong suspicion that the death was caused by the police officials during the investigation. It was held that any such act by the Police Officer cannot be in discharge of his official duties. 8. From the detailed discussions made above it becomes perfectly clear to me that under the facts and circumstances of the case as alleged in the complaint petition no sanction for prosecution under S. 197 of the Code was necessary and the learned Chief Judicial Magistrate has completely misdirected himself on this point by holding otherwise. The dismissal of the complaint petition by the learned Chief Judicial Magistrate for want of sanction under S. 197 of the Code;under the facts and circumstances of this case; to say the least, is wholly unwarranted. The impugned order is, accordingly, quashed. The learned Chief Judicial Magistrate is directed to hold further enquiry in the matter under S. 398 of the Code. He should examine the complainant on solemn affirmation and should proceed in the matter in the manner as ordained by law. 9. The revision application is, accordingly, allowed in the light of the observations mentioned above. The learned Chief Judicial Magistrate is directed to immediately comply with the aforesaid order as noted above.Application allowed.