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2001 DIGILAW 469 (KER)

Manoharan v. Director General of Police

2001-08-23

J.B.KOSHY

body2001
Judgment :- J.B. KoShy, J. A private complaint dated 17.6.1998 (Ext. PI) was filed by the 4th respondent before The Chief Judicial Magistrate, Thiruvananthapuram. It was forwarded to the Fort Police Station and crime was registered as Crime No. 194/98. Ext. P2 is the copy of the F.I.R. in the above crime. After investigation Ext. P3 charge sheet was filed. Petitioner was the third accused in the case. The accused 1 and 2 on the one side and respondents 4 and 5 on the other side claimed management of a Training College owned by Kerala Nadar Mahajana Sangham. There are several litigations between them. Main allegation against the petitioner in the complaint was that he colluded with accused No. 2 in preparing a forged resignation letter of the fourth respondent from the Sangham and registered the same. Petitioner was the District Registrar at that time. Charges were made for offences under Ss.120(B), 465, 468 & 471 of I.P.C. 2. This Writ Petition is filed to quash Exts. P2 and P3 F.I.R. and Charge Sheet as far as it is against the petitioner or for a direction to reinvestigate the matter by another officer. There is an allegation in the Original Petition that investigation was conducted by 3rd respondent who is a close relative of 5th respondent and complaint itself was filed at the instigation of the 5th respondent to grab the management of a Training College owned by the Sangham. Several cases are pending regarding the management of the training college in which 5th respondent is also a party. Interim stay of the proceedings pursuant to Exts. PI to P3 were obtained by the petitioner. Fifth respondent filed a counter affidavit denying any kind of relationship with himself and 3rd respondent Investigating Officer. 3. Only two grounds are pressed when the case came up today before me. First ground is that proceedings are not maintainable as no sanction was obtained under S.197 of the Code of Criminal Procedure even though offences in the charge sheet and complaint were alleged to have committed while discharging official duty as a public servant. Court should not have taken cognizance of the same before previous sanction. The second contention is that in the charge sheet several offences are mentioned. Since more than three offences are mentioned, there is violative of S.219 of Cr. P.C. and trial based on Ext. P3 charge sheet is illegal. Court should not have taken cognizance of the same before previous sanction. The second contention is that in the charge sheet several offences are mentioned. Since more than three offences are mentioned, there is violative of S.219 of Cr. P.C. and trial based on Ext. P3 charge sheet is illegal. 4. I am dealing with the second ground of attack at the outset. S.219 of the Cr. P.C. is an enabling provision and an exception to S.218. S.218 provides that for every distinct offence of which any person is accused, there shall be a separate charge, and every such charge shall be tried separately. This provision is subject to the exceptions provided under sub-s.(2) of S.218 Cr. P.C. Ss.219, 220, 221 & 223 are the exceptions to the general rule prescribed under S.218 Cr. P.C. S.219 contemplates a different situation and enables to charge sheet and try together when a person is accused of more offences than one subject to a maximum of three committed within a period of 12 months provided the offences are of the same kind. Here this section is not at all applicable. Here all the offences are committed in one series of acts, so committed together as to form the same transaction. S.220(1) of Cr. P.C. provides as follows. "220. Trial for more than one offence - (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for, every such offence." S.223 Cr. P.C. provides as follows. "223. What persons may be charged jointly - The following persons may be charged and tried together, namely. (a) persons accused of the same offence committed in the course of the same transaction (d) persons accused of different offences committed in the course of the same transaction." Ss.220 & 223 are not controlled by S.218 or 219. In respect of offences committed in the course of one transaction, the limitation in S.219 as to inclusion in one trial only three offences committed in a year will not apply as held by the Supreme Court in State of Andhra Pradesh v. Subbaiah (AIR 1961 SC 1241). Ss.220(1) & 223(d) constitute an exception toSs.218&219as held by the Supreme Court. In respect of offences committed in the course of one transaction, the limitation in S.219 as to inclusion in one trial only three offences committed in a year will not apply as held by the Supreme Court in State of Andhra Pradesh v. Subbaiah (AIR 1961 SC 1241). Ss.220(1) & 223(d) constitute an exception toSs.218&219as held by the Supreme Court. In K. Kunhahammad v. The State of Madras (AIR 1960 SC 661) the Supreme Court held that when accused is not prejudiced trial not vitiated. Since all the offences are alleged to have committed in the course of same transaction, S.218 & S.219 will not apply in view of S.220(1) & S.223(d) and on this ground Exts. P2 & P3 cannot be quashed. 5. With regard to the contentions that sanction was not obtained before the filing of charge sheet etc. have to be considered depending upon the facts of the case and petitioner has to raise those contentions before the Magistrate's Court where the case is pending. S.197(1) of Cr. P.C. reads as follows. "197. Prosecution of judges and public servants (1) When any person who is or was a judge or Magistrate or 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 the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction - (a) in the case of a person who is employed, or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government. (PROVIDED that where the alleged offence was committed by a person referred to in Cl. (b) during the period while a Proclamation issued under Cl. (1) of Art.356 of the Constitution was in force in a State, Cl. (b) will apply as if for the expression "Stale Government" occurring therein, the expression "Central Government" were substituted.)" It is settled law that object of S.197 Cr. (b) during the period while a Proclamation issued under Cl. (1) of Art.356 of the Constitution was in force in a State, Cl. (b) will apply as if for the expression "Stale Government" occurring therein, the expression "Central Government" were substituted.)" It is settled law that object of S.197 Cr. P.C. is to protect public servants against frivolous or vexatious proceedings for acts done in discharge of official duty and to see that no proceedings is started unless there is some foundation for the charge sheet. Appropriate authority should be satisfied that there is a. prima facie case for starting prosecution as held by the Apex Court in R.R. Chari v. State of U.P. (AIR 1962 SC 1573). The bar imposed by the Section is absolute and the Section regulates the jurisdiction and competence of the court as negative words are used as "No court shall take cognizance". But for invoking the section two conditions must be satisfied. (1) Public servant is removable from the office only with the sanction by the Union Government or State Government and not by a lesser authority and he is accused of an offence alleged to have committed while acting or purporting to act in the discharge of his official duty. It is not stated in the Writ Petition who is the authority authorised to remove the petitioner from service when the act was alleged to have done. For this evidence is necessary. Further, immunity from prosecution without sanction extends only to acts which can be shown to be done in discharge of official duty or purported to be done in such discharge, but an offence arising out of abuse of official position by an act not purporting to official does not require sanction. According to respondents offences alleged are not actually form part of his official duty as criminal conspiracy and forgery of documents are not part of the official duty of the District Registrar. It is also not mere commission of an excess act while doing official duties. Whatever be the merit of the contentions, this has to be looked first by the trial court as facts are involved and not under Art.227 of the Constitution of India. All depends upon facts of each case. It is also not mere commission of an excess act while doing official duties. Whatever be the merit of the contentions, this has to be looked first by the trial court as facts are involved and not under Art.227 of the Constitution of India. All depends upon facts of each case. In this connection I refer to the decisions in Amrik Singh v. State of Pepsu (AIR 1955 SC 309), Baijnath v. State of M.P. (AIR 1966 S.C. 220), B.P. Srivastava v, N.P. Mishra (AIR 1970 SC 1661) & Pukhrai v. State ofRajasthan (AIR 1973 SC 2591). What offences can be held to have been committed by public servant while acting or purporting to act in the discharge of duty are recently considered by the Supreme Court in Gauri Shankar Prasad v. State of Bihar (2000 AIR SCW 3135). In paragraphs 8 it is observed as follows. "8. What offences can be held to have been committed by a public servant while acting or purporting to act in the discharge of his official duties is a vexed question which has often troubled various Courts including this Court. Broadly speaking, it has been indicated in various decisions of this Court that the alleged action constituting the offence said to have been committed by the public servant must have a reasonable and rational nexus with the official duties required to be discharged by such public servant." Thereafter Apex Court relied on the observations in earlier decision in Matajob Dobey v. H.C. Bhandari (AIR 1956 SC 44) as follows. "The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under S.197, unless the act complained of is an offence, the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation." 6. Of course as held by the Supreme Court in Abdul Wahab Ansari v. State of Bihar (2000 AIR SCW 3725) at any stage of the proceedings even before framing charges or at any substantial stage of trial bar under S.197 can be raised by the accused. But here in this case at present facts are not available to establish bar and on the pleadings now raised petitioner was not able to prove that trial court is barred from further proceedings in view of want of sanction under S.197 Cr. P.C. It is for the accused to raise such objection before the trial court and satisfy the court that ingredients of S.197(1) are satisfied in this case with necessary facts and entire proceedings are illegal in view of the statutory bar, instead of approaching this court under Art.227 of the Constitution of India without any sufficient materials bypassing the trial court and remedies available under the Code of Criminal Procedure on the facts of this case. Even though section imposed prohibition from taking cognizance without sanction, question need not always be decided as preliminary issue as held by three member Bench decision of the Supreme Court in P.K. Pradhan v. State of Sikkim (2001 AIR SCW 2648). After considering large number of decisions of the Apex Court it was held as follows. "Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under S.197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under S.197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required It is well settled that question of sanction under S.197 of the Code can be raised any time after the cognizance may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused, that the act that he did was in course of the performance of his duty was reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." The facts now pleaded by the petitioner have to be established. As held in that case by the Apex Court, in this case also the court below shall examine this question afresh and deal with the same in the main judgment in the light of the law laid down by the Apex Court in P.K. Pradhan's case (Vupra) and other judgments and according to law. In the above circumstances, this Original Petition is dismissed without prejudice to the right of the petitioner in raising question of sanction before the trial court.