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2003 DIGILAW 6 (GAU)

Abdul Gaffar v. Ramen Das

2003-01-03

I.A.ANSARI

body2003
I.A. ANSARI, J.— With the help of the present application made under Sections 401/397 read with Section 492 of the Code of Criminal Procedure, the petitioner has approached this Court with prayers, inter alia, to set aside and quash the impugned order, dated 18.02.94, passed by the learned Munsiff Magistrate No. 1, Goalpara, In C.R. Case No. 89/94, whereby the learned Magistrate dismissed the petitioner's complaint made against the accused-Opposite Party on the ground that legal sanction to institute the proceeding against the accused-Opposite Party did not exist. 2. In a nutshell, petitioner's case may be narrated as follows: The petitioner is in lawful possession of the land, described in the schedule to the complaint. As the Forest Officials were disturbing petitioner's possession over the said land, he instituted a Title Suit against the Divisional Forest Officer, Goalpara, and others seeking declaration of his title to the said land and for restraining the dependents from entering into the land. In Misc. Case No.(J) 2/94. instituted by the petitioner, temporary injunction was issued restraining the Forest Officials from evicting the petitioner from the said land. Despite existence of this injunction order, the Opposite Party Nos. 1, 2 and 3, who are the employees of the Forest Department, trespassed into the said land, threatened the petitioner that he would be arrested and, then, directed him to remove his house from the said land. When the petitioner objected thereto, the petitioner was forcibly dragged out of the said land and brought in a jeep to the Range Office of Goalpara Baladmari Range. The Opposite Party, then, closed the door of the office from inside, put a Khukri (a sharp edged weapon) on the throat of the petitioner and on their repeated demands, the petitioner, out of fear, put his signature on a blank sheet of paper, whereupon the accused-Opposite Party brought the petitioner in the said Jeep to Goalpara Police Station and lodged there a FIR against the petitioner by making false accusations, which led to the arrest of the petitioner. The petitioner was, later on, released on bail. Thereafter, the petitioner instituted C.R. Case No. 89/94 aforementioned in the Court of the learned Chief Judicial Magistrate, Goalpara, against the accused- Opposite Party alleging commission of offences by them under Sections 447/342/323/387 IPC. The petitioner was, later on, released on bail. Thereafter, the petitioner instituted C.R. Case No. 89/94 aforementioned in the Court of the learned Chief Judicial Magistrate, Goalpara, against the accused- Opposite Party alleging commission of offences by them under Sections 447/342/323/387 IPC. The learned Chief Judicial Magistrate made over the case to the learned Munsiff Magistrate No. l, Goalpara, for disposal, who, in turn, after examining two witnesses under Section 202(2) Cr.P.C., passed the impugned order, dated 18.2.94, aforementioned dismissing the complaint on the ground as has been stated hereinabove. Being aggrieved by this order, the petitioner has approached this Court. 3. I have perused the materials on record Including the impugned order. I have heard Sri HRA Choudhury, learned counsel for the petitioner. None has appeared on behalf of the accused-Opposite Party. 4. Upon perusal of the materials on record and upon hearing learned counsel for the petitioner, what attracts my eyes, most prominently, is that while dismissing the complaint, the learned Magistrate has clearly observed in the impugned order itself that there are sufficient materials for proceeding against the accused-Opposite Party. However, despite such a clear finding, the complaint was dismissed for lack of legal sanction. 5. The question, therefore, which, now, arises is as to whether, in the facts and circumstances of the present case, the impugned order is legal, proper and/or correct? 6. Before answering the above question, it is important to bear in mind that for application of Section 197 Cr. P.C., two important conditions precedent are required to be satisfied, namely, (i) whether the accused concerned is a Judge or a Magistrate or a Public Servant, who is not removeable from office save by or with the sanction of the Government concerned and (ii) whether the accused has committed the alleged offence, while acting or purporting to act in the discharge of his official duties? If these two conditions are satisfied, no Court can take cognizance of such an offence except with the previous sanction of the Government concerned. 7. It may be noted that the object of Section 197 is to protect the Judges and other public servants against irresponsible, frivolous and vexatious proceedings for acts done in the discharge of their official duties and to ensure that no prosecution is initiated against them unless there is some foundation for the accusation made. 7. It may be noted that the object of Section 197 is to protect the Judges and other public servants against irresponsible, frivolous and vexatious proceedings for acts done in the discharge of their official duties and to ensure that no prosecution is initiated against them unless there is some foundation for the accusation made. Prosecution is permissible against them only when appropriate authority is satisfied that there is a prima facie case for proceeding against the person concerned. It is worth emphasizing that the object of Section 197 is not to exonerate public servants of offence committed by them or to encourage them to commit offences, but to enable them to perform their duties fearlessly by giving them protection from vexatious, malafide or false prosecution. In order to attract the provisions of Section 197, two conditions, as Indicated hereinabove, must be fulfilled, namely, (1) the public servant is removable from office either by the Union Government or by the State Government, as the case may be, and (2) the act complained of, which amounts to an offence, has been committed by him or her, while acting or purporting to act in the discharge of his/her official duties. 8. It is necessary to remember that way back in the case of P. Arulswami vs. State of Madras ( AIR 1967 SC 776 ), the Apex Court clearly laid down that no sanction under Section 197(1) Cr.P.C. is necessary to prosecute a public servant if the act allegedly committed by him, constituting the offence, is unconnected with his official duty. This position of law has been reiterated in P.P. Unnikrishan Vs. Puttiyottil Alikutty, (2000) 8 SCC (3), wherein the Apex Court observed as followed: - "21. If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and exceeds such right it may amount to an offence. But such offence might fall within the amplitude of Section 197 of the Code as well as Section 64(3) of the K.P. Act. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. But if a police officer assaults a prisoner inside a lock-up he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property. Similarly, if a police officer wrongfully confines a person in the lock-up beyond a period of 24 hours without the sanction of a Magistrate or an order of a court it would be an offence for which he cannot claim any protection in the normal course, nor can be claim that such act was done in exercise of his official duty. A policeman keeping a person in the lock-up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority". (Emphasis is supplied) 9. In Raj Kishor Roy Vs. Kamleshwar Pandey, (2002) 6 SCC 543 , the Apex Court affirmed the view adopted in P.P. Unnikrishan in the following words :- "7. The law on the subject is well settled. It has been held by this Court in the case of P.P. Unnikrlshnan Vs. Puttiyottil Alikutty that under Section 197 of the Criminal Procedure Code no protection has been granted to the public servant if the act complained of is not in connection with the discharge of his duty or in exercise of his duty." (Emphasis is added) 10. It may be noted that it has been consistently maintained by the Apex Court that before protection provided under Section 197 is made available to a person of the category as mentioned in Section 197, the Court must be satisfied that there existed nexus between the acts complained of and the duty of the person concerned. If the acts complained of had no nexus with the duty of the public servant concerned and/or the acts did not form part of the duty of such an officer, such an act will not be protected under Section 197. Reference may be made in this regard to P.K.Pradhan Vs. State of Sikkim, (2001) 6 SCC 704 . 11. Thus, it will depend upon the facts of the given case if protection under Section 197 can be made available to the person concerned. Reference may be made in this regard to P.K.Pradhan Vs. State of Sikkim, (2001) 6 SCC 704 . 11. Thus, it will depend upon the facts of the given case if protection under Section 197 can be made available to the person concerned. Hence, whenever any Court is required to decide if the accused can be given protection of Section 197, it has to, first, ascertain if the accused is a Judge or a Magistrate or a public servant, who is not removable save by or with the authority of the Government. If this condition precedent is satisfied, then, the Court will look into the question as to whether the act complained of can be said to have been done in discharge or purported discharge of duty of the person concerned. If answer to the second question too is in the affirmative, the protection will be made available to the person concerned. 12. In the case at hand, without entering into the discussion of the question as to whether the Opposite Party are public servants, who cannot be removed save by or with the sanction of the State Government, let me consider if, in the present case, the acts allegedly done by the accused can be said to have been done b them, while acting or purporting to act i the discharged of their official duties. 13. Keeping in view the principles o law delineated above, when one consider; the factual matrix of the present complain case, it clearly transpires that if the allegations made in the complaint are assumed to be true, then, the accused-Opposite Party had clearly intimidated the complainant by putting Khukri on his throat and forced him to put his signature on a blank sheet of paper. It is no part of the duty of any public servant to force or threaten a person to put his or her signature on a blank sheet of paper. By no stretch of logic, the alleged act of obtaining of signature of the complainant on the blank sheet of paper by the accused-Opposite Party can be said to be a part of the duty of the accused-Opposite Party. Viewed from this angle, the question of obtaining of sanction for prosecution of the accused-Opposite Party for such alleged acts of commission did not arise at all. Viewed from this angle, the question of obtaining of sanction for prosecution of the accused-Opposite Party for such alleged acts of commission did not arise at all. This apart, taking away of the complainant from his said land to the Range Office with a view to obtaining his signature on the blank sheet paper and keeping him confined, with this object in view, inside the office cannot be said to have been done by the accused-Opposite Party in discharge of their official duties. 14. In short, the acts alleged to have been committed by the accused-Opposite Party, if true, cannot, for the reasons already discussed above, be said to form part of their duties. Hence, the provisions of Section 197 Cr.P.C. were not attracted at all and it was highly illegal and improper on the part of the learned Court below to dismiss the complaint on the ground of non-existence of sanction for prosecution. The impugned order, thus, suffers from serious infirmity of law and if such an order is allowed to stand good on record, the same will cause serious miscarriage of justice and will be an abuse of the process of the Court. 15. In the result and for the reasons discussed above, this revision succeeds. The impugned order, dated 18.2.1994, aforementioned is hereby set aside and quashed and the learned Court below is hereby directed to proceed with the complaint aforementioned against the accused-Opposite Party. 16. Send back forthwith the LCR with a copy of this judgment and order.