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2001 DIGILAW 167 (JK)

Fayaz Ahmad Indrabi v. State Of J. &K.

2001-08-08

MUZAFFAR JAN

body2001
1. This is a reference made by the learned 1st Addl. Sessions Judge, Srinagar recommending to set aside the order of the learned Chief Judicial Magistrate, Srinagar dated 23-5-2000, vide which order the learned Chief Judicial Magistrate permitted the prosecution of the employees of the Electric Department. 2. Briefly put the facts are that on13-2-1998 and information was received in the Police Station, Parimpora that electric LT line has fallen due to which the kitchen, cow-shed and shop of the present petitioner caught fire and was damaged. On this information, the fire incident was investigated and it was found that the negligence of the Electric Department in maintaining the supply line in a proper and fit condition. Had the supply line be in proper order, the electric supply line would not have fallen and the kitchen, cowshed & shop of the petitioner would not have burnt. On the completion of investigation charge report under section 287 RPC was filed in the Court of Chief Judicial Magistrate, Srinagar against the employees of the department, Fiaz Ahmed, Asstt. Executive Engineer, Abdul Rashid Ganai, Inspector and Mohd Yousuf Dar, Lineman. 3. A preliminary objection was raised before the Chief Judicial Magistrate regarding the maintainability of the charge-report without sanction under Section 197 Cr.P.C to prosecute the accused/ employees of the Electric Department on the plea that no prosecution can lie against the employees of the department, for the acts done by them in the curse of their duty. The learned Chief Judicial Magistrate after hearing the parties, vide order dated 31-5-2000 came to the conclusion that the defence of sanction under section 197 Cr PC on the facts and circumstances of the charge report is available to the accused because their act of negligence did not constitute any part of their duty. 4. Aggrieved by this order dated 31-5-2000, the accused preferred a revision petition before the learned 1st Addl. Sessions Judge, Srinagar. The learned 1st Addl. Sessions Judge heard the parties and came to the conclusion that the findings of the learned Chief Judicial Magistrate that no sanction was required to present reference recommended that the order of the learned Chief Judicial Magistrate dt.31-5-2000 be set aside. 5. Perused the entire record and both the order of the learned Chief Judicial Magistrate dated 31-5-2000 and of learned 1st Addl. Sessions Judge, Srinagar dated 27-9-2000. 6. 5. Perused the entire record and both the order of the learned Chief Judicial Magistrate dated 31-5-2000 and of learned 1st Addl. Sessions Judge, Srinagar dated 27-9-2000. 6. It is a settled position of law that Section 197 Cr.P.C has been incorporated to provide a shield and protection to an honest, duty-bound and sincere public servant to perform his duty to the best of his ability, without the threat of un-justified and motivated prosecution, simply to demoralize the honest officer and to prevent him from doing his lawful duty. The essential requirement under section 197 Cr.P.C are that the public servants act must be in furtherance and performance of his lawful duties and the act or even omission must be an integral part covered by his duties as a public servant. A distinction has however, to be drawn between the lawful duties and those acts which are not covered within the scope of the official duties. The public servant cannot take the cover and try to camouflage those illegal acts which do not come within the ambit of his public duty, simply to commit crime. In case Shamboo Nath vs. State of Utter Pradesh, 1997(5) SCC 336, Their Lordships of the Apex Court in Para 5 have observed as under: " It is not the official duty of the public servant to fabricate false record and mis-appropriate the public funds in furtherance or in the discharge of his official duty." 7. The allegations against the accused persons as made out in the charge report, are that the electric Supply LT Line of the Electric Department had not been maintained, and were not in perfect order and due to the negligence of the employees; of the electric department, the present accused, the electric LT line snapped and fell down due to which the kitchen, cowshed and the shop of the complainant caught fire, resulting in damage to his property. Section 197 Cr.P.C reads as under: 197. Section 197 Cr.P.C reads as under: 197. "Prosecution of Judges and public servants (I) When any person who is Judge within the meaning of section 19 of the Ranbir Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the State Government or the Govt of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction." 8. On a plain reading of this section, it is amply clear that no protection can be provided to a public servant for his acts of negligence. The protection is provided when something is done which directly relates to the discharge of official duties. This is a positive assertion and no question of sanction can arrive under section 197 Cr.P.C unless the act complained of was done in the discharge of official duties. The Act and the official duties must be so inter-related that one can postulate reasonably that it was done by the accused bonafidely in the performance of official duty. 9. The validity of sanction came up before Orissa High Court where a cyclist driving in a stormy weather died due to electrocution by a live electric wire which had fallen from the electric pole. The Division Bench of Orissa High Court after ascertaining the responsibility of the Electric Board observed as under: "The very fact that live wire in a stormy weather which caused the death of the son of the petitioner was detached from the pole and was hanging over the road makes the maxim res ipsa loquitur applicable and in such event, it is not for the petitioner to prove any specific act or omission amounting to negligence of the Electricity Board was not negligent." 10. While considering the entitlement of compensation, the Division Bench further observed "The petitioner is thus entitled to compensation from the parties on account of the death of his son, which in the circumstances must be held to be due to negligence of the Electricity Board in maintaining the electric wire running over the poles". 11. While considering the entitlement of compensation, the Division Bench further observed "The petitioner is thus entitled to compensation from the parties on account of the death of his son, which in the circumstances must be held to be due to negligence of the Electricity Board in maintaining the electric wire running over the poles". 11. It is the duty of employees of the Electric Department to maintain the high-tension, service lines or even ordinary electricity distribution lines in perfect order. If they do not do so and are negligent they cannot claim protection under Section 197 Cr.P.C for their negligent act because no act of negligence can be protected under Section 197 Cr.P.C. 12. Therefore, the omission to maintain the electric LT Line is not covered by the official duty of any of the employees of the electric department. On the contrary the electric department is duty bound to maintain the electric supply line, especially those lines which constitute hazards to life, limb and property, in a perfect order without any chance of snapping or falling down,. Therefore, the present accused cannot seek the protection under Section 197 Cr.P.C.on the allegations made in the charge report. 13. It may be kept on record that sanction in all cases of employees is not warranted Section 197 Cr.P.C. would not be required where the government has delegated its power to another authority with regard to appointment and removal of employees, on the anomaly that the appointment of the employees is such which could not be terminated by the government. (See AIR 1970 SC 1331). 14. The order passed by the learned Chief Judicial Magistrate dated 31.5.2000 to hold that no Sanction for prosecution of the present accused was required is absolutely in accordance with law and needs no interference. The recommendations made by the Ist. Addl. Sessions Judge, Srinagar is against law and accordingly cannot be accepted. The recommendation fails and is turned down.