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2001 DIGILAW 819 (PAT)

Ashok Kumar Tiwary v. State Of Bihar

2001-08-31

PRABHAT KUMAR SINHA

body2001
Judgment PRABHAT KUMAR SINHA, J. 1. This is an application under Section 482 of the Code of Criminal Procedure ("the Code", in short) preferred by Ashok Kumar Tiwary, praying therein to quash order dated 26.8.1996 (Annexure-7) recorded by Sri R.S. Singh, Judicial Magistrate, first Class, at Barh in Complaint Case No. 26(C) of 1995, whereby and whereunder the learned Magistrate, after enquiry into the complaint had ordered issuance of summons against the accused for facing trial for offences punishable under Sections 504, 506 and 379 of the Indian Penal Code. 2. It may be mentioned that opposite party No. 2, the complainant had appeared at the initial stage itself and when this case was admitted for hearing by order dated 25.11.1997, no notice was issued to Opposite Party No. 2 since he had already made appearance in the case. However, this case was heard on 30.8.2001 and today with the name of learned counsel for Opposite Party No. 2 printed in the list, but no one appeared to argue on his behalf. Therefore, learned counsel for the petitioner and learned Additional Public Prosecutor have been heard. 3. The facts of the case, in short, are that one Ram Naresh Sharma, Opposite Party No. 2, filed complaint in the lower Court against the petitioner alleging therein that the complainant was Chief Secretary to Gram Swarajya Samiti constituted in his village which Samiti provided implements to the farmers. It is alleged that since the work of boring was to start, the materials to be used therefor were stored before the house of witness No. 6, Ramashish Singh. 4. Further allegation is that on 11.10.1995 the complainant was informed that accused (Petitioner) with armed force had come and they were lifting aforesaid goods. When the witnesses intimated the accused that the goods belonged to Gram Swaraj Samiti, he said that he would verify from the list in the office of the Samiti while taking the goods on the truck. When the truck reached the office, the accused stopped the truck and when he was asked to give back the goods, he got enraged, hurling abuses and also got ready to assault and took away the goods. 5. When the truck reached the office, the accused stopped the truck and when he was asked to give back the goods, he got enraged, hurling abuses and also got ready to assault and took away the goods. 5. The argument of the learned counsel for the petitioner was that whatever the petitioner had done was in due discharge of his duty, hence was entitled to the protection of Section 197 of the Code and that cognizance in this Case could not have been taken without sanction of the State Government. Learned Additional Public Prosecutor has countered by arguing that obviously the petitioner had committed the act in the garb of his official powers and had misused his authority while purporting to act in exercise of his duty. 6. Learned counsel for the petitioner, with the help of the averments made in the petition and annexures through which are claimed to be the official documents, has stated that a certificate Case bearing No. 832 of 1994-95 had been filed in the Court of Certificate Officer, Barh by the State Bank of India against Ramashish Singh who is said to be witness No. 6 in the complaint petition, for non-payment of loan taken by him. The Certificate Court ordered for effecting seizure of the properties of the debtor at which one Officer of the Police Station had visited the place on 10.10.1995 as per Station diary entry No. 218 who, however, could not complete the work on that day, hence deputed Dafadar and Chowkidar at the house of the accused and the police personnel returned back after sun set. Then on 11.10.1995 this petitioner with a police force went there to complete the work which fact was noted in Sanaha entry No. 231. The property was duly attached under Section 83 of the Code and a report was submitted by Jai Prakash Mandal, A.S.I, showing the properties so attached. Thereafter the Certificate Officer, learned counsel submitted, by order dated 15.11.1995 ordered for open auction of the attached goods, which order is at Annexure-3. However, before auction could be affected the Certificate debtor brought an order from this Court for release of the attached articles which were then released (Annexure-4). 7. Thereafter the Certificate Officer, learned counsel submitted, by order dated 15.11.1995 ordered for open auction of the attached goods, which order is at Annexure-3. However, before auction could be affected the Certificate debtor brought an order from this Court for release of the attached articles which were then released (Annexure-4). 7. Learned counsel submits that as a matter of fact while the petitioner was returning back with the attached articles on 11.10.1995 pursuant to the order of the Certificate Court, the complainant, his wife and son had stopped them and had told that the goods were of the Samiti, hence the goods should be left behind. Thereafter, they also abused and threatened the police forces and also took away couple of the attached goods and ran away. This petitioner narrated the instant story in a letter addressed to the Additional Chief Judicial Magistrate, Barh and on basis of that Bakhtiarpur P.S. Case No. 198 of 1995 was instituted for that occurrence against the complainant and others (Annexure-5) in which charge-sheet has been submitted. The information about lodging of the case was also entered into the Station Diary under entry No. 236 dated 11.10.1995 at 12.30 p.m. 8. These facts as mentioned in the application had been supported by the annexures which are official documents. Obviously the complainant/ Opposite Party No. 2 having appeared in this case, did not file any counter affidavit. This way the facts in the petition supported by affidavit have remained uncontroverted. 9. There are number of judicial decisions of the Apex Court as well of this Court establishing that for claiming protection under Section 197 of the Code the accused has to establish a reasonable connection between the act complained of and discharge of official duties. This way the facts in the petition supported by affidavit have remained uncontroverted. 9. There are number of judicial decisions of the Apex Court as well of this Court establishing that for claiming protection under Section 197 of the Code the accused has to establish a reasonable connection between the act complained of and discharge of official duties. Obviously an official act can be performed in due discharge of official duties as well in dereliction of it and where the act complained of has nexus with the performance of official duties of the accused, then the protection under Section 197 of the Code is available to the accused as per which no Court can take cognizance of an offence except with the previous sanction of the appropriate government when any 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 the discharge of his official duty. In that connection, in the case of Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 their lordships of the Supreme Court had held that 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. It was noted that there was no question of sanction under Section 197 of the Code unless the act complained of was an offence but the only point to be determined was as to whether that act was committed in discharge of official duty. 10. Obviously Section 197 of the Code is meant to provide protection to the public servant from malicious and vexatious prosecution. A public servant having committed an offence has to be prosecuted but if the act complained of is done by him in course of discharging his official duties, that prosecution can take place only after sanction has been obtained from the appropriate government, even if it is shown that while discharging his official duties he had exceeded his lawful authority and had committed an offence. 11. 11. In this connection decisions of the Apex Court in the Case of Shreekantiah Ramaya Munipalli and another v. State of Bombay, (1955) 1 SCR 1177 : AIR 1955 SC 287 and in the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and others, (1998) 1 SCC 205 : 1998 (1) East Cr C 461 (SC) may also be seen. 12. What has been brought before this Court by uncontroverted averments in the petition, as well by some of the official documents is that the attachment was affected by the accused and his associate police officials in obedience to an order issued by a Court. Obviously the act was done in execution of their official duty. In such circumstance, even in case they had exceeded their authority, vested in them under law, while discharging official duties and had committed any offence, cognigance could not have been taken without obtaining sanction of the appropriate Government under Section 197 of the Code. 13. It is also obvious that no sanction was obtained. In view of the aforesaid, this application is allowed and the criminal prosecution in connection with Complaint Case No. 26(C) of 1995 and the impugned order dated 26.8.1996 are hereby quashed.