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2004 DIGILAW 1227 (PNJ)

Mohinder Kumar Seth v. Darshan Lal Kansal

2004-11-03

V.M.JAIN

body2004
Judgment V.M.Jain, J. 1. This revision petition has been filed by the complainant against the order passed by the Additional Sessions Judge, whereby the revision filed by the accused was accepted and the order of summoning passed by the learned Magistrate was set aside for want of sanction. 2. The facts which are relevant for the decision of the present revision petition are that Mohinder Kumar Seth, complainant had filed a criminal complaint under Sections 406, 407, 409 read with Section 120-B IPC against three accused namely Darshan Lal Kansal, Piara Lal Garg and Mrs. Romila Dubey, officials of the Punjab Small Industries and Exports Corporation Limited. After recording the preliminary evidence and hearing the counsel for the complainant and perusing the record, the learned Judicial Magistrate Ist Class, Ludhiana, vide order dated 25.10.1994, found that there were sufficient grounds for proceeding against the accused under Section 409 IPC. Accordingly, all the three accused were ordered to be summoned for the offence under Section 409 IPC. Aggrieved against the order of summoning passed by the learned Magistrate, two of the accused namely Darshan Lal Kansal and Piara Lal Garg filed revision petition before the Sessions Court. During the pendency of the revision petition before the Sessions Court, the third accused namely Mrs. Romila Dubey, IAS filed an application through her counsel for permission to argue the revision petition. 3. After hearing the counsel for the parties and perusing the record, Sh. R.K. Tyagi, the then Additional Sessions Judge, vide order dated 5.3.1998, accepted the said revision petition, set aside the summoning order passed by the learned Magistrate with liberty to the complainant to prosecute the accused after obtaining sanction for their prosecution from the appropriate authority, if deemed fit. Aggrieved against this order dated 5.4.1998, passed by the Additional Sessions Judge, Ludhiana, Mohinder Kumar Seth, complainant filed present revision petition in this Court. Vide order dated 28.10.1998, the revision petition was admitted against respondents 1 and 2 only by issuing notice to them (Darshan Lal Kansal and Piara Lal Garg) and with regard to issuance of notice to respondent No. 3 (Mrs. Romila Dubey, IAS) it was directed that this question shall be considered later on. 4. While hearing the arguments in this case on 8.9.2004, I was of the opinion that notice to respondent No. 3 (Mrs. Romila Dubey, IAS) was also required to be issued. Romila Dubey, IAS) it was directed that this question shall be considered later on. 4. While hearing the arguments in this case on 8.9.2004, I was of the opinion that notice to respondent No. 3 (Mrs. Romila Dubey, IAS) was also required to be issued. Accordingly, it was directed that notice to respondent No. 3 be also issued. Sh. A.R. Takkar, Advocate accepted notice on behalf of respondent No. 3 and filed vakalathnama and the case was adjourned for arguments. 5. I have heard the learned counsel for the parties and have gone through the record carefully. 6. As referred to above, the only ground on which the learned Additional Sessions Judge had accepted the revision petition of the accused and had set aside the summoning order passed by learned Magistrate was that sanction was required to be obtained, as provided under Section 197 Cr.P.C., before prosecuting the accused for the offence under Section 409 IPC. However, in my opinion, the learned Addl. Sessions Judge had committed an illegality in holding that sanction under Section 197 Cr.P.C. was required for prosecuting the accused under Section 409 IPC. Section 197 provides that 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 etc. In the present case, as referred to above, there are three accused. Nothing has come on the record to show with regard to accused-respondents 1 and 2 namely Darshan Lal Kansal and Piara Lal Garg as to whether they are public servants not removable from their office save by or with the sanction of the State Government. That being so, the provisions of Section 197 Cr.P.C., would not apply to them merely because they were working as officials of the Punjab Small Industries & Exports Corporation Ltd. So far as accused-respondent No. 3 namely Mrs. Romila Dubey, IAS is concerned, she being a member of the Indian Administrative Service could certainly be said to be public servant not removable from the service save by or with the sanction of the Government. Romila Dubey, IAS is concerned, she being a member of the Indian Administrative Service could certainly be said to be public servant not removable from the service save by or with the sanction of the Government. In any case, even if a public servant not removable from his office save by or with the sanction of the Government is accused of any offence, sanction of the appropriate authority would be required only if he is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. In the present case, nothing has come on the record to show that the accused- respondents had allegedly committed the offence under Section 409 IPC, while acting or purporting to act in the discharge of their official duties. Section 409 IPC pertains to criminal breach of trust by public servant etc. In my opinion, committing the offence under Section 409 IPC by a public servant could not be said to have been committed by him while acting or purporting to act in the discharge of his official duty, since committing the offence of criminal breach of trust by a public servant punishable under Section 409 IPC, could never be said to be in the discharge of his official duty. Reference (Reliance ?) in this regard may be placed on the latest law laid down by the Honble Supreme Court in the case State of Himachal Pradesh v. M.P. Gupta, 2004(1) Recent Criminal Reports 197 (SC), pertaining to offences under Sections 487, 468, 471 and 120-B IPC. In the said authority, the Honble Supreme Court had considered various earlier judgments of the Honble Supreme Court concerning various offences including the offences under Sections 406 and 409 IPC. Reliance in this regard may be placed on the law laid down by the Honble Supreme Court in R. Balakrishna Pillai v. State of Kerala, 1996(2) RCR(Crl.) 765 (SC) : AIR 1996 901 and Harihar Parshad etc. v. State of Bihar, 1972(3) SCC 89. 7. In view of the law laid down by the Honble Supreme Court in the above- mentioned authorities, in my opinion, the learned Addl. v. State of Bihar, 1972(3) SCC 89. 7. In view of the law laid down by the Honble Supreme Court in the above- mentioned authorities, in my opinion, the learned Addl. Sessions Judge had erred in law in holding that the accused-respondents could not be prosecuted by the complainant without obtaining sanction from the competent authority, as required under Section 197 Cr.P.C. As such, the order passed by the learned Addl. Sessions Judge is liable to be set aside. 8. Learned counsel appearing for the accused-respondents submitted before me that on various other grounds the order of summoning passed by the learned Magistrate was liable to be set aside. He has submitted that those grounds have not been considered by the learned Addl. Sessions Judge, since the revision petition was allowed by the learned Addl. Sessions Judge on the ground that sanction was required to prosecute the accused-respondents. 9. In view of the above, present revision petition allowed, the order dated 5.3.1998 passed by Sh. R.K. Tyagi, Addl. Sessions Judge, Ludhiana is set aside and the case is remanded to the learned Addl. Sessions Judge for deciding the revision petition afresh in accordance with law, on other grounds which may be agitated before him on behalf of the accused, challenging the order of summoning passed by the learned Magistrate. It is made clear that even though the revision petition was filed by only two of the accused namely Darshan Lal Kansal and Piara Lal Garg yet the learned Addl. Sessions Judge while deciding the revision petition afresh shall give opportunity of hearing to all the three accused including Mrs. Romila Dubey, IAS since she had filed an application before the Addl. Sessions Judge for permitting him to argue the revision petition on her behalf as well. Furthermore, while hearing the present revision petition, notice to Mrs. Romila Dubey, IAS was also issued and after giving her an opportunity of being heard the present order is being passed. Under these circumstances, it shall be deemed that she is one of the petitioners before the Addl. Sessions Judge in the revision petition which was filed by co-accused Darshan Lal Kansal and Piara Lal Garg. Parties through their counsel are directed to appear before the Addl. Sessions Judge, Ludhiana on 3.12.2004 for further proceedings in accordance with law.