Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 881 (PAT)

Amar Nath v. State Of Bihar

2000-07-17

INDU PRABHA SINGH

body2000
Judgment I.P.Singh, J. 1. This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 18.8.1988 passed by the learned Sessions Judge, Madhubanl in Cr. Revision No. 1061 of 1998 filed on behalf of the opposite party No. 2 by which he was pleased to set aside the order dated 25.7.1988 passed by Shri V.K. Mishra, Judicial Magistrate, IInd Class Madhubani in Complaint Case No. 408/97/ Tr. No. 669/98. 2. It appears that the opposite party No. 2 had filed a complaint in the Court of Chief Judicial Magistrate, Madhubani, being CR. Case No. 408/97 against the present petitioner and two others, namely, Gauri Shankar Singh, District Supply Officer and Shri Ram Kripal Yadav, Marketing Officer, Madhubani. At the relevant time the complainant-opposite party No. 2 was dealing in the sale of gas cylinders and was also running a photostat business. The present petitioner was the Supply Inspector posted at Madhubani (Town), RS. Madhubani. On 20.8.1997 the peon of Gauri Shankar Singh, District Supply Officer came with 4 Kg. gas cylinder (light) and asked opposite party No. 2 to fill the same to which he refuses since he told him that he does not deal with the business of gas filing. After some time the accused-persons including the petitioner came there and as pointed out by the peon of the District Supply Officer they entered into the shop premises of opposite party No. 2. They assaulted him with fists and slaps as also with a hunter. They seized 5 empty gas cylinders and one full gas cylinder and obtained the signature of opposite party No. 2 on the seizure list. The photostat machine of opposite party No. 2 was also damaged as a result of which he sustained a loss of Rs. 2000/-, Accordingly, he filed a complaint petition against the Supply Officer, Shri Gauri Shankar Singh and Shri Amar Nath (present petitioner) and one Ram Kripal Yadav. The cognizance of the offence against them was taken by the Judicial Magistrate by his order dated 7.3.1988 under Sections 323, 504, 452 and 379 of the Indian Penal Code. The learned Judicial Magistrate also ordered for issuance of summons against them. 3. The cognizance of the offence against them was taken by the Judicial Magistrate by his order dated 7.3.1988 under Sections 323, 504, 452 and 379 of the Indian Penal Code. The learned Judicial Magistrate also ordered for issuance of summons against them. 3. All the three accused-persons appeared in the Court and filed petitions dated 2.6.1988, 26.6.1988 and 10.7.1988 to drop the proceeding against them as the act alleged in the complaint petition was strictly in discharge of their official duty and, therefore, in absence of the sanction order no cognizance against them could be taken. They, accordingly prayed for their discharge. The learned Judicial Magistrate by his order dated 25.7.1988 held that co-accused Gauri Shankar Singh, the District Supply Officer only was entitled to the protection under Section 197 of the Code as he was a public servant removable from office with the sanction of the Government. So far as the present petitioner and the third accused were concerned the learned Judicial Magistrate held that though they were not public servants to whom the protection under Section 197 of the Code could be extended, however, since they were acting at the behest of the District Supply Officer and had jointly inspected and raided the shop premises of opposite party No. 2 on 21.8.1997, they were protected as their action had come under the provisions of general exceptions as contained in Section 76 of the Indian Penal Code. The learned Judicial Magistrate, however, refused to drop the criminal proceeding against them but held that the trial could not proceed unless sanction order is received for the prosecution of the petitioner and others. Accordingly, he adjourned the case to 26.8.1998 by which date opposite party No. 2 was asked to bring sanction order for the prosecution of the petitioner and two other accused. 4. Opposite party No. 2 filed a criminal revision against this order being Cr. Revision No. 1061/98 which was heard and disposed of by the learned Sessions Judge, Madhubani by his order dated 18.6.1998. 4. Opposite party No. 2 filed a criminal revision against this order being Cr. Revision No. 1061/98 which was heard and disposed of by the learned Sessions Judge, Madhubani by his order dated 18.6.1998. By this order the learned Sessions Judge held there was no necessity for obtaining any sanction order to prosecute the accused-persons since in this case both the parties were alleging certain illegal acts on the part of the other and also since the learned Judicial Magistrate himself admitted and stated in his order that the accused-persons (including the present petitioner) had exceeded their limit of official duly. The learned Sessions Judge, accordingly, set aside the order of the learned Judicial Magistrate by which he had directed the opposite party No. 2 to obtain the sanction order by 26.8.1996. 5. From this application it further appears that the co-accused Gauri Shankar Singh, the District Supply Officer, Madhubani, lodged FIR against opposite party No. 2 alleging therein that he received a credible information on 21.8.1997 that opposite party No. 2 indulging in black market and was selling and refilling gas (light) cylinder at higher charges. A raiding party was arranged and the District Supply Officer along with the present petitioner and Ram Kripal Yadav, Marketing Officer raided the shop premises of opposite party No. 2. Seeing the raiding party opposite party No. 2 escaped. On enquiry the servant of opposite party No. 2 admitted selling and filling gas cylinders. On search 3 empty gas cylinder and one filled gas cylinder besides five 4 Kg. capacity gas cylinder etc. were recovered from the shop premises of opposite party No. 2. Accordingly, the seizure hst was prepared and a case under Section 7 of the Essential Commodities Act (in short the Act) was lodged against opposite party No. 2. Also a proceeding for confiscation under Section 6(1) of the E.C. Act was initiated by the District Magistrate, Madhubani with respect to the articles seized from the shop premises of opposite party No. 2. The learned trial Court in his order dated 25.7.1998 has taken note of the fact that accused No. 1 named in the complaint petition of opposite party No. 2 happened to be District Supply Officer, Madhubani while accused No. 2 was the Supply Inspector and accused No. 3 was the Marketing Officer. The learned trial Court in his order dated 25.7.1998 has taken note of the fact that accused No. 1 named in the complaint petition of opposite party No. 2 happened to be District Supply Officer, Madhubani while accused No. 2 was the Supply Inspector and accused No. 3 was the Marketing Officer. He also took notice of the fact that the District Supply Officer could not be removed from service without the order and sanction of the State Govt, and was as such duly protected under Section 197 of the Code and no cognizance against him could be taken without obtaining the prior sanction for his prosecution from the State Government. He also took notice of the fact about the recovery and illegal sale in black market of the gas cylinders on the basis of which Madhubani (Town) PW Case No. 240/97 was started on the information lodged by the District Supply Officer. 6. It has been further contended that the impugned order passed by the learned Sessions Judge is illegal, unwarranted and not supported by the materials on record. The learned Sessions Judge failed to appreciate that the order dated 25.7.1998 passed by the Magistrate was not a final order and he had only adjourned the case to 26.8.1998 for bringing the sanction order for the prosecution of the accused-persons including the petitioner. This order being not a final order no revision petition against the same was maintainable before the learned Sessions Judge since the same was hit by Section 397(2) of the Code. In this connection a reference has also been made to the case of Madhu Limaye V/s. The State of Maharashtra, AIR 1978 SC 47 . In this view of the matter it was contended that the learned Sessions Judge had no jurisdiction to entertain the revision petition against the order dated 25.7.1998 by the learned Judicial Magistrate since the same was interlocutory and not subject to the revisional jurisdiction of that Court. The learned Court below failed to appreciate that prior sanction was necessary before taking cognizance of the offence. The acts alleged against the petitioner were reasonably and inseparably connected with his official duty and as such he was entitled to the protection of Section 197 of the Code. On these grounds amongst others, it has been contended that the impugned order be set aside. 7. The acts alleged against the petitioner were reasonably and inseparably connected with his official duty and as such he was entitled to the protection of Section 197 of the Code. On these grounds amongst others, it has been contended that the impugned order be set aside. 7. At the time of hearing, the learned counsel for the petitioner has seriously contended that since the order dated 25.7.1998 passed by the learned Judicial Magistrate had only directed the complainant opposite party No. 2 to bring the sanction order against the accused with him a month of this order, no revision petition against it would lie since the same is only an interlocutory order and any revision petition against it would be hit by Section 397(2) of the Code. In this connection the learned counsel has also relied on the case of Madhu Limaye (supra). Since this question has been raised and argued at length on behalf of the learned counsel for the petitioner, I think it necessary to closely examine this submission. 8. Section 397 of the Code deals with the revisional powers of the High Court and the Court of Session. Its sub-section (2) runs as follows : "(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding." From this it would appear that there was a total ban on the exercise of the revisional power conferred on the High Court and the Court of Session by Section 397(2) of the Code with respect to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. This takes us to the consideration of the question as to what is an "interlocutory order". In this connection I will firstly like to refer to the case of Amar Nath and others V/s. State of Haryana, AIR 1977 SC 2185 . In this decision it was held as follows: "The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important right or the liabilities of the parties. In this decision it was held as follows: "The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important right or the liabilities of the parties. Any order which substantially affects the right of the accused or decides certain rights of the parties cannot be said to be an inter- locutory order so as to bar a revision to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in Section 397." (Emphasis supplied) "xx xx xx xx But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court." (Emphasis supplied) 9. In the above mentioned case the facts were as follows. The FIR was lodged against a number of accused including appellants before the Honble Supreme Court. The police submitted the charge sheet against the accused excluding the appellants. The Judicial Magistrate accepted the charge sheet and set the appellants at liberty. Against this order a revision petition was filed before the Sessions Judge which was dismissed. Thereafter a regular complaint petition was filed also against the appellants. This complaint petition was dismissed. On revision the learned Sessions Judge ordered for further enquiry. On the strength of this order the learned Magistrate summoned the appellants. A petition under Sections 482 and 397 of the Code was filed before the High Court against the order summoning the appellants. This petition was dismissed on the ground that this order was interlocutory against which no revision would lie. The Honble Supreme Court held that the order summoning the accused-appellants was one which was the matter of moment. It further held that compelling the appellants to face the trial without proper application of mind would not be held to be an interlocutory matter, but one which decided a serious question as to the rights of the appellants to be put on trial. It further held that compelling the appellants to face the trial without proper application of mind would not be held to be an interlocutory matter, but one which decided a serious question as to the rights of the appellants to be put on trial. That being the position, a revision against the order was fully competent under Section 397(1) or under Section 482, because the scope of both these sections in a matter of this kind is more or less the same. 10. The decision in the case of Arnar Nath (supra) was again examined by a larger Bench of three Honble Judges in the case of Madhu Limaye (supra). In both these cases the leading judgment was by N.L. Untwalia, J. In the case of Madhu Limaye it was held that ordinarily and generally the expression "interlocutory order" has been understood and taken to mean as a converse of the term final order but an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. An order rejecting the plea of the accused on a point which when excepted will conclude the particular proceeding will surely be not an interlocutory order within the meaning of Section 397 (2) of the Code. On this point this Bench approved the decision of the case of Amar Nath (supra) though on a different point it differed with it but in this case we ae not concerned with the question of the scope of Section 482 of the Code. It was further held in this case that there may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswamis case AIR 1949 FC 1, bat yet it may not be an interlocutory order pure and simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. In this case a revision was filed before the High Court against the order of the Sessions Judge framing the charge. The High Court rejected the same on the ground that the order framing the charge was interlocutory in nature and, therefore, barred under Section 397(2) of the Code. In this case a revision was filed before the High Court against the order of the Sessions Judge framing the charge. The High Court rejected the same on the ground that the order framing the charge was interlocutory in nature and, therefore, barred under Section 397(2) of the Code. A Special Leave Petition was filed before the Honble Supreme Court which held as follows". We may, however, indicate that the type of the order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of Section 397(2) of the Code. In our opinion it must be taken to an order of the typing falling in the middle course." 11. In a recent decision in the case of Rajendra Kumar and Sitaram Pandey and others V/s. Uttam and another, 1993(3) SCC 134, it was held that the order of the Magistrate directing issuance of process to the accused is not an interlocutory order and, therefore, the revisional jurisdiction under Section 397 could be exercised against the same. In this case the Magistrate ordered for the issuance of process to the accused. On revision the learned Sessions Judge set aside this order, of issuing summons. Against this order a petition under Section 482 of the Code was filed before the High Court. The High Court held that since the order of the Magistrate issuing process to the accused was interlocutory order, against it no revision application was maintainable before the Sessions Judge. The Honble Supreme Court set aside this order of the Honble High Court and held that the order of the Magistrate directing the issuing of the process to the accused is not an interlocutory order as mentioned above. From the aforesaid three decisions it appears that the law on the subject has clearly been spelt out and the true and correct meaning of the expression "interlocutory order" has been given. 12. I will next proceed to discuss the facts of the case and will apply the law as mentioned above to the same. The learned Judicial Magistrate has passed a very lengthy order on 25.7.1998, on the petition filed by the accused-persons praying to drop the proceedings against them. 12. I will next proceed to discuss the facts of the case and will apply the law as mentioned above to the same. The learned Judicial Magistrate has passed a very lengthy order on 25.7.1998, on the petition filed by the accused-persons praying to drop the proceedings against them. From the concluding portion of this order it appears that the learned Magistrate granted one months time to the complainant-opposite party No. 2 to obtain and produce the sanction order for the prosecution of the accused-persons including present petitioner. In this order the learned Magistrate went to the extent of canceling the bail bond executed by the accused. From this order it appears that so far as the accused D.S.O. was concerned the learned Magistrate held that he was entitled to the protection of Section 197 of the Code. So far as the other accused were concerned the learned Magistrate held that though they cannot get the protection of 197(1) of the Code since they were removable from service by the authorities subordinate to the State Government and not by and with the sanction of the State Government itself. However, the learned Magistrate relying on the provisions of Section 76 of the Indian Penal Code held that since these accused were acting under the orders of the accused District Supply Officer they were also entitled to the protection of Section 76 of the Indian Penal Code. 13. In the impugned order the learned Sessions Judge has concluded that there was no necessity for opposite party No. 2 to obtain prior sanction of the State Government to prosecute the accused-persons. He accordingly set aside the order dated 25.7.1998 passed by the learned Magistrate. He further held that if during the course of the trial it would appear to the learned Magistrate that prior sanction was necessary for taking cognizance of the case inevitable legal consequences may follow. It is against this order that the present revision application has been filed. 14. This takes us to the consideration of the protection as provided by Section 197 of the Code. It is against this order that the present revision application has been filed. 14. This takes us to the consideration of the protection as provided by Section 197 of the Code. Its subsection (1) says that when a person who is a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him, while acting or purporting to act in discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government under whom that persons was working. The crucial words in this sub section are "while acting or purporting to act in discharge of his official duty". This expression has come up for interpretation before the Honble Supreme Court from time to time. In the case of Amrik Singh V/s. State of Pepsu, AIR 1955 SC 309 , it was held that if the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under Section 197(1) would be necessary, but if there was no necessary connection between them and for the performance of those duties the official status furnished only the occasion or opportunity for the acts, then no sanction would be required. In the case of K. Satwant Singh V/s. State of Punjab, AIR 1960 SC 266 , it was held that the act complained must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duties. It was further held that the offences alleged cannot be said to be one for which one could claim that he did the act complained of while acting or purporting to act in discharge of his official duty. In the case of P. Arulswami V/s. State of Madras, AIR 1967 SC 776 , it was held that where the act complained of is entirely unconnected with the official duty no sanction would be needed. It is only when the act complained of is within the scope of the official duty that the protection under Section 197 (1) of the Code would be available. It is only when the act complained of is within the scope of the official duty that the protection under Section 197 (1) of the Code would be available. In the case of Prabhakar V/s. Sinari, AIR 1969 SC 686 . it was held that where the act complained of and the official duty were so interrelated that one could postulate reasonably that it was done by the Recused in the performance of the official duty though possibly in excess of the needs and requirements of the situation, then only the protection of Section 197(1) would be available. It was further held that if the act complained of was directly concerned with his office, then the sanction would be necessary and that would be so irrespective of whether it was in fact a proper decision in the case of Shambhoo Mishra V/s. State of U.P. and others, AIR 1997 SC 2102 , it was held that if the act alleged is integral to the performance of the public duty the public servant is entitled to the protection of Section 197(1) of the Code. It was further held that if the performance of the public, duty was only under colour of public duty, it can not be camouflaged by the public servant to commit the crime. It was also held in this case that it was not the official duty of the public servant to fabricate the false record and to misappropriate the public funds in furtherance of or in the discharge of his official duties. No such act could be said to be integrally connected with or inseparably inter linked with the crime committed in course of the same transaction. Under such a situation it was held that it was not necessary in such a case to obtain sanction. 15. Coming to the facts of the present case it would appear from the complaint petition that all the accused-persons came to the shop of opposite party No. 2 and started abusing him. They affected their forceful entry into the shop and assaulted opposite party No. 2 with fists, slaps and hunter. It is further alleged that they also removed 9 empty gas cylinders. They further removed some empty and one filled up gas cylinder from the shop of opposite party No. 2. They affected their forceful entry into the shop and assaulted opposite party No. 2 with fists, slaps and hunter. It is further alleged that they also removed 9 empty gas cylinders. They further removed some empty and one filled up gas cylinder from the shop of opposite party No. 2. They also broke open the glass of the photostat machine putting opposite party No. 2 to a loss of Rs. 2,000/-. These are the allegations made against the present petitioner and others in the complaint petition. Now from the nature of the allegations made it becomes clear that the acts alleged to have been committed by the accused-persons cannot in any way be described interlinked with the discharge of the official duty of the accused-persons. On the other hand, the acts complained of were entirely unconnected with their official duty. It can not be said under the facts of this case that the acts alleged against the accused-persons including the present petitioner were integral to the performance of the public duty of the public servant so as to make them entitled to the protection under Section 197(1) of the Code. In view of above even the accused District Supply Officer was not entitled to the protection of Section 197(1) of the Code since the acts complained of against him could in no way be connected or described as integral to the discharge of his official duty. So far as other two accused including the present petitioner is concerned it is obvious that Section 197 of the Code will not apply in as such as they were removable from the service by the Subordinate authorities, of the State Government, hence the present petitioner cannot claim the protection of Section 197(1) of the Code. It has lastly been argued before me that in any view of the mater since two petitioners were acting in obedience of the order passed by the accused District Supply Officer they were entitled to the protection of Section 76 of the Indian Penal Code. I would like to point out here that any such defence taken by the accused will have to be examined by the trial Court and as such I would not like to express my opinion with respect to this plea at this stage. I would like to point out here that any such defence taken by the accused will have to be examined by the trial Court and as such I would not like to express my opinion with respect to this plea at this stage. However, it is obvious that the protection of Section 76 of the Indian Penal Code is available in course of the trial and it does not bar taking of the cognizance by the Magistrate at the initial stage. Moreover, this protection is available to a person who committing the illegal acts by reason of a fact and not by reason of mistake in law in good faith, believing himself to be bound by a law. The question whether breaking of the photostat machine or illegal removal of the gas cylinders from the shop of opposite party No. 2 is or is not lawful act, done in good faith, has to be determined by the trial Court. At this stage I would simply mention that Section 76 of the Indian Penal Code is no bar to taking of cognizance of the offence against the present petitioner though during the trial stage any such defence can be taken before the trial Court. 16. From the detailed discussions made above it becomes clear that there is no merit in this application. It is accordingly, dismissed and the impugned order dated 18.8.1998 passed by the learned Sessions Judge, Madhubani in Criminal Revision No. 1061 of 1998 is hereby confirmed. The learned Judicial Magistrate is directed to proceed with the trial of the case in the light of the observations made above.