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2001 DIGILAW 356 (PNJ)

Mohinder Singh v. State Of Punjab

2001-03-16

V.M.JAIN

body2001
Judgment 1. This is a petition under Section 482, Cr.P.C. filed by accused-petitioner, seeking quashment of the order dated 7-2-2001, passed by the Sub-Divisional Judicial Magistrate, Kharar and the order dated 28-2-2001 passed by the Additional Sessions Judge, Ropar, dismissing the revision petition of the petitioner. 2. The facts which are relevant for the decision of the present petition are that in a civil suit decided by Additional Senior Sub-Judge, Kharar, vide judgment dated 24-10-1994, copy Annexure P-1, the trial Court had directed the SHO, PS Mohali, to register a case and conduct investigation in accordance with law. This was with regard to the transfer of a plot. It was further directed that the criminal case was to be registered against Joginder Kaur, attesting witness of the Will propounded by Joginder Kaur and all concerned officials of the Estate Officer, Urban Estate, Mohali, at the relevant time, by registering a case under Sections 167, 418, 419, 420, 467, 471, 474, 120-B, IPC. In pursuance of the said direction of the Additional Senior Sub-Judge, Kharar, FIR No. 120 dated 12-12-1994 was registered in PS Mohali, for the aforesaid offences. The present petitioner, Mohinder Singh, was working as Assistant Estate Officer at the relevant time. In view of the order passed by the civil Court, the FIR was registered against him as well. In the meanwhile, the petitioner had retired from service on 30-6-1983. Since the petitioner was a public servant at the relevant time when the offence was alleged to have been committed, the petitioner filed an application under Section 197, Cr.P.C., that the petitioner at the relevant time was Assistant Estate Officer and was thus a public servant, who was not removable from his office, save by or with the sanction of the State Government and as such he could not be prosecuted without obtaining sanction from the State Government. However, the said application of the petitioner was dismissed by the trial Court, vide order dated 7-2-2001,copy Annexure-P-4. Aggrieved against this order of the learned Magistrate,the petitioner filed a revision petition before the Sessions Court and the same was also dismissed by the Additioinal Sessions Judge, Ropar, on 28-2-2001. Aggrieved against these orders of the Courts below, the petitioner filed the present petition in this Court under Section 482, Cr.P.C. 3. Aggrieved against this order of the learned Magistrate,the petitioner filed a revision petition before the Sessions Court and the same was also dismissed by the Additioinal Sessions Judge, Ropar, on 28-2-2001. Aggrieved against these orders of the Courts below, the petitioner filed the present petition in this Court under Section 482, Cr.P.C. 3. The learned Counsel for the accused- petitioner submitted before me that the petitioner was a public servant and had acted in the discharge of his official duties and as such sanction was required, even if he had retired from service. Reliance has been placed on the law laid down by their Lordships of the Supreme Court in the case reported as State of Maharashtra V/s. Dr. Budhikota Subharao, 1993 2 RCR 482. 4. After hearing the learned Counsel for the petitioner and after perusing the record, in my opinion, there is no force in the present petition and the same is liable to be dismissed. 5. The offences under which the FIR had been registered are primarily for cheating and forging documents. In State of Bihar V/s. P. P. Sharma, IAS, 1992 SCC (Cri)192 : (1991 Cri LJ 1438), it was held by their Lordships of the Supreme Court that the object behind prior sanction (under Section 197, Cr.P.C.) was to prevent malicious/vexatious and unnecessary harassment to a public servant by laying false or frivolous accusation or prosecution. In other words, Section 197(1), Cr.P.C., and related sections intended to immunise a public servant who discharged his duties honestly and diligently from the threat of prosecution. It was further held in the said authority that it was no part of the duty of a public servant to enter into a conspiracy; to fabricate the records, falsify the accounts, commit fraud or misappropriation or demand and acceptance of illegal gratification, though the exercise of power gave him an occasion to commit the offence. It was further held in the said authority that it was no part of the duty of a public servant to enter into a conspiracy; to fabricate the records, falsify the accounts, commit fraud or misappropriation or demand and acceptance of illegal gratification, though the exercise of power gave him an occasion to commit the offence. Similarly in Shambhoo Nath Misra V/s. State of U. P., 1997 5 SCC 326 : (1997 Cri LJ 2491), it was held, their Lordships of the Supreme Court that when the public servant was alleged to have committed the act of fabrication of records or misappropriation of public fund, etc., it could not be said that he acted in discharge of his official duties because it was not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc., in furtherance of or in the discharge of his official duties. Similarly, in State of Kerala V/s. Padmanabhan Nair, AIR 1999 SC 2405 : (1999 Cri LJ 3696), it was held by their Lordships of the Supreme Court that it could not be said that for offence under Sections 406 and 409 read with Section 120-B, IPC, sanction under Section 197, Cr.P.C. was a condition precedent for launching the prosecution. It was further held that when in regard to the offence under Section 409, read with Section 120-B, IPC, it was no part of the duty of the public servant to enter into a criminal conspiracy for committing breach of trust, it could not be said that if the offence was under Section 406 read with Section 120-B IPC, it would make all the difference vis-a-vis Section 197, Cr.P.C. 6. From the law laid down by their Lordships of the Supreme Court, in the above-mentioned authorities, prima facie, it would be clear that no sanction would be required for prosecuting a public servant for the offences connected with cheating and preparing false records besides misappropriation of public funds etc., including the offence of criminal conspiracy under Section 120-B, IPC, in respect of the abovesaid offences. 7. The authority (1993) 2 Rec Cri R 482 (supra), relied upon by the learned Counsel for the petitioner, in my opinion, would have no application to the facts of the present case and would be of no help to the accused- petitioner. 7. The authority (1993) 2 Rec Cri R 482 (supra), relied upon by the learned Counsel for the petitioner, in my opinion, would have no application to the facts of the present case and would be of no help to the accused- petitioner. In the reported case, it has been held by their Lordships of the Supreme Court that the expression "official duty" implies that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. It was further held in the said authority that if on facts, it was prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty, then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. 8. The question as to whether accused- petitioner was still in service or had retired from service, in my opinion, would be of noconsequence, taking into consideration that the accused-petitioner was alleged to have committed the offence of cheating and forgery, which could not be said to have been committed in disharge of his official duties. 9. For the reasons recorded above, in my opinion, no case for interference in the present petition under Section 482, Cr.P.C. is made out. Hence, the present petition is dismissed.