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2002 DIGILAW 1218 (AP)

PONNAPALLI VENKATARAMA SASTRY v. State Of A. P.

2002-10-10

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THE petitioner in Criminal petition No. 5669 of 2001 is accused No. 1 while the petitioners in Criminal Petition no. 5704 of 2001 are accused Nos-2 to 4 in private P. R. C. No. 32 of 2001 on the file of additional Judicial Magistrate of First Class, narsapur, West Godavari District. All the accused in the said P. R. C. No. 32 of 2001 seek for quashing of the proceedings by invoking inherent powers under Section 482 of the Code of Criminal Procedure. ( 2 ) A brief resume of back ground of the facts is necessary. Pechetti Sree Ramulu was running a liquor shop under the name and style "leena Wines" situated at Saripali Village. On 31-3-2001 the petitioner in Criminal petition No. 5669 of 2001 raided the liquor shop of Pechetti Sree Ramulu, while working as Inspector, Prohibition and Excise, along with Sub-Inspector, Head Constable and police Constable, Sub-Divisional Task Force of Prohibition and Excise Department. One tadepalli Ashok Kumar, who is 2nd respondent herein, was said to be in the shop at that time. He presented a report before the Sub-Inspector of Police, Rural police Station, Narsapur, stating that the inspector of Police, Prohibition and Excise shouted at them and caught hold of the collar of Pechetti Sree Ramulu in a drunken state finding fault for giving information against Abdul Hasan, which led to filing a complaint for illicit intimacy and also abused as "bastards" and broke the IMFL bottles of brandy and whisky worth Rs. 15,000/ -. Thereafter, the complaint is presented as the excise Officials have threatened to launch false complaint against them. The Sub- inspector of Police, Rural Police Station, narsapur, and the Sub-Divisional Police officer, Narsapur, enquired into the matter and stated that the allegations in the complaint are found to be false as it is filed as a counter blast for the crime registered as cr. No. 1 of 2001-2002 under Sections 34 (A) and 50 of the A. P. Excise Act. Thereupon, a private complaint has been presented before the Magistrate who recorded the sworn statement of Tadepalli Ashok Kumar on 30-4-2001 and has taken cognizance of the offence after registering P. R. C. No. 32 of 2001. Aggrieved by the same, the accused have preferred this Criminal Petition and sought for quashing of the criminal proceedings. Thereupon, a private complaint has been presented before the Magistrate who recorded the sworn statement of Tadepalli Ashok Kumar on 30-4-2001 and has taken cognizance of the offence after registering P. R. C. No. 32 of 2001. Aggrieved by the same, the accused have preferred this Criminal Petition and sought for quashing of the criminal proceedings. ( 3 ) THE learned Counsel appearing for the petitioners contends that the offences alleged are said to have been committed by the petitioners while discharging their official duties and hence sanction is required under Section 197 of the Code of Criminal procedure. He further contends that as the sanction is not obtained under Section 197 of the Code of Criminal Procedure the magistrate cannot take cognizance of the offence. It is also contended by the learned counsel for the petitioners that Tadepalli ashok Kumar is neither the owner nor a worker of the liquor shop in question, as his name is not mentioned in the Nowkarnama. He further contends that the said Tadepalli ashok Kumar is set up by the said person namely Pechetti Sree Ramulu to take vengeance against the petitioners as he has anticipated launching of prosecution by the excise Officials. ( 4 ) THE learned Counsel appearing for the 1st respondent contends that it is not a case where the petitioners can claim protection under Section 197 of the Code of criminal Procedure, as it is not their duty to go in a abbreviated condition i. e. , after consuming liquor, to discharge their duties and it is not part of the duty to abuse others and break the bottles. The learned Counsel appearing for the 1st respondent also contended that as it does not form part and parcel of discharging duties, there is no need to obtain any sanction. ( 5 ) THE learned Public Prosecutor contends that it is not a fit case where inherent powers can be exercised to quash the proceedings and the question whether the offences alleged to have been committed are while discharging the official duties or exceeding the same can only be decided on the strength of evidence during trial. ( 5 ) THE learned Public Prosecutor contends that it is not a fit case where inherent powers can be exercised to quash the proceedings and the question whether the offences alleged to have been committed are while discharging the official duties or exceeding the same can only be decided on the strength of evidence during trial. ( 6 ) ADVERTING to the said contentions, it is necessary to refer to the provisions of section 197 of the Code of Criminal procedure, which reads as follows: "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 the alleged offence employed, in connection with the affairs of a State, of the State Government: (Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under Clause (!) of article 350 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "state Government" occurring there, the expression "central Government" were substituted.) (2 ). No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central government. (3 ). No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central government. (3 ). The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces changed with the maintenance of public order as may be specified therein, wherever they may be serving and thereupon the provisions of that sub-section will apply as if for the expression "central Government" occurring therein, the expression "state Government" were substituted. (3-A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a proclamation issued under Clause (1) of Article 356 of the constitution was in force in the State, shall be invalid and it shall be competent for the central Government in such matter to accord sanction and for the Court to take cognizance thereon. (4) The Central Government or the State government, as the case may be, may determine the person by whom the manner in which, and the offence or offences for which, the prosecution of such Judge, magistrate or Public Servant is to be conducted, and may specify the Court before which the trial is to be held. (4) The Central Government or the State government, as the case may be, may determine the person by whom the manner in which, and the offence or offences for which, the prosecution of such Judge, magistrate or Public Servant is to be conducted, and may specify the Court before which the trial is to be held. " ( 7 ) THE provisions of Section 197 of the Code of Criminal Procedure are subjected to interpretations in several decisions of supreme Court, namely Raj Kishore Rai v. Kamleshwar, Pandey, 2002 0 SCC (Cri) 1423, abdul Wahab Ansari v. State of Bihar and another, 2001 (1) ALD (Crl.) 116 (SC), rizwan Ahmed Javed Shaikh and others v. Jammal Patel, 2001 (1) ALD (Crl.) 902 (SC), and also this Court in Deva Vara prasad v. Dulla Srinivasa Rao, 2002 (1) ald (Crl.) 609 (A. P. ). There is also an unreported judgment of this Court on the same issue involved in this case in criminal Petition No. 840 of 1999, dated 19-6-2002, between K. V. Vasantha Rao and the State of A. P. , Rep. by Public Prosecutor and another. ( 8 ) IN P. K Pradhan v. State of Sikkim, 2001 (2) ALD (Crl.) 332 (SC) = 2001 (2) ALT (Crl.) 175 (SC), the entire law has been adumbrated All the above decisions are considered by the Supreme Court and the following principles emerge on a perusal of aforesaid decisions. (1) When a person is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his duty, sanction is mandatory. (2) The Magistrate shall insist upon production of sanction order before taking cognizance of the offence, and (3) In cases arising out of prevention of corruption Act, the question of requirement of sanction has to be decided only at the time of trial. ( 9 ) HENCE, it is clear that if any person is accused of an offence being committed while he has been in discharging his duties, obtaining of sanction is mandatory one and no Court can dispense with it. ( 10 ) THE learned Counsel for the petitioners categorically stated that in the complaint it is states while that discharging their duties the petitioners have entered into the liquor shop. ( 10 ) THE learned Counsel for the petitioners categorically stated that in the complaint it is states while that discharging their duties the petitioners have entered into the liquor shop. ( 11 ) IT is clear that the complainant had also filed a complaint in respect of the same incident, which has been registered by the Magistrate and it is pending adjudication before the criminal Court. The words used "vidhi Nirvahana to show they are discharging their duties they came in the jeep to the shop as can be seen from the complaint given by the 2nd respondent. It is a very stranger thing that a person whose collar has been caught hold of by the Inspector of police, Prohibition and Excise Department, and bottles are broken has not given any complaint and he has got a complaint presented only through his henchman, namely Tadepalli Ashok Kumar. It is specifically mentioned in the complaint that the petitioners were discharging their duties. The attempt made by the learned counsel for the 2nd respondent is to show that the truth or otherwise of the contents would be judged only during trial and prima facie the material also discloses that the petitioner reached the liquor shop and caused damage by breaking the bottles which is only in discharge of their duties. ( 12 ) AFTER perusal of the complaint and the words used by the complainant in his sworn statement, I am of the considered view that the petitioners were discharging their duties at the time when they entered the liquor shop. The acts alleged against the petitioners certainly amount to commission of offences in discharging their duties but the truth of the same have to be left open for trial. ( 13 ) IN view of my aforesaid discussion, I am of the considered view that the acts said to have been done by the petitioners are in discharge of their duties, If accusations of commission of offences are taken as a whole and it requires sanction insofar as the petitioner in Criminal Petition No. 5669 of 2001 is concerned and also petitioner Nos. 1 and 2 in Criminal Petition No. 5704 of 2001. 1 and 2 in Criminal Petition No. 5704 of 2001. Insofar as the petitioner No. 3 in Criminal petition No. 5704 of 2001 is concerned, he is said to be preventing the Inspector of Police, prohibition and Excise Department, not to do the things, and there are no specific overt acts attributed against him. In that view of the matter, the accusation, if taken as a whole, do not constitute an offence insofar as petitioner No. 3 in Criminal Petition no. 5704 of 2001. Hence, the proceedings are liable to be quashed insofar as petitioner in Criminal Petition No. 5669 of 2001 and also the petitioner Nos. 1 and 2 in Criminal petition No. 5704 of 2001. The complaint is also liable to be quashed against petitioner no. 3 in Criminal Petition No. 5704 of 2001 as no overt acts are attributed to him in the complaint. ( 14 ) IN the result, both the criminal petitions are allowed and the proceedings in PRC No. 32 of 2001 on the file of additional Judicial First Class Magistrate, naraspur, West Godavari District, are quashed.