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2004 DIGILAW 1227 (RAJ)

Takhat Singh v. Bhagirath Koli

2004-08-27

H.R.PANWAR

body2004
JUDGMENT 1. - By this criminal revision petition under Section 397 r/w Section 401 Cr.PC., the petitioner has challenged the order dated 28.10.02 passed by Judicial Magistrate, Aaspur, District Doongarpur (for short "the trial court" hereinafter) in complaint case No. 18/01, whereby the trial court dismissed the complaint filed by the petitioner. 2. Briefly stated the facts of the case, to the extent they are relevant and necessary for the decision of the instant revision petition, are that the petitioner complainant filed a complaint against the respondent dated 25.7.01 for the offences under Sections 343, 504 and 506 IPC inter alia alleging therein that on 5.11.1999 the petitioner was arrested for the offence under Section 107/151 Cr.P.C. and was produced before the respondent Bhagirath Koli, the then Tehsildar, Aaspur, who refused to enlarge him on bail and detained him in custody. Before the trial court the petitioner got himself examined and produced his son Sajjan Singh, Hindusingh and Mavji. The trial court vide impugned order, dismissed the complaint filed by the petitioner on the ground that the respondent is a public servant and while discharging his official duty the act alleged to have been done and therefore, without there being a sanction for prosecution as envisaged under Section 197 Cr.P.C., the cognizance cannot be taken. Admittedly, in the instant case, no prior sanction of a competent authority to prosecute the respondent was granted as envisaged under Section 197 Cr.PC. 3. I have heard learned counsel for the parties. Perused the order impugned. I have carefully gone through the record of the trial court. 4. The respondent was Tehsildar at Aaspur, District Doongarpur on the relevant date i.e. 5.11.1999. A complaint was filed by one Mavji S/o Harji against the petitioner, his son Sajjan Singh and wife Gambhir Kanwar. The petitioner was arrested by the police and produced before the respondent in Case No. 52/99. Smt. Gambhir Kanwar did not contest the proceedings under Section 107-151 Cr.PC. and was, therefore, released on furnishing personal and surety bonds for maintaining peace and tranquillity. However, no such bonds were furnished by the petitioner and his son and therefore, they could not be released and were sent to judicial custody. Subsequently, on 9.11.1999, the petitioner and his son Sajjan Singh were also released on furnishing personal and surety bonds to keep peace and tranquillity for a period of six months. 5. However, no such bonds were furnished by the petitioner and his son and therefore, they could not be released and were sent to judicial custody. Subsequently, on 9.11.1999, the petitioner and his son Sajjan Singh were also released on furnishing personal and surety bonds to keep peace and tranquillity for a period of six months. 5. The trial court on appreciation of the evidence produced by the complainant came to the conclusion that prima-facie there is no evidence to proceed against the respondent for the offences under Sections 504 and 506 IPC. On reading of whole of the statement of witnesses produced by the petitioner, even if the evidence produced by the petitioner is taken on its face value, then also the conviction cannot be based against the respondent for the offence under Sections 504 and 506 IPC, and therefore, the trial court was of the opinion that none of the offences noticed above is prima-facie made out. 6. So far as offence under Section 343 IPC is concerned, the trial court held that the act of the respondent was in discharge of his official duty in accordance with law and the respondent acted in a bonafide manner in exercising his power and therefore, without there being a prior sanction of competent authority under Section 197 Cr.P.C., the cognizance cannot be taken. 7. The learned counsel for the petitioner relied on judgment of Hon'ble Supreme Court in P.K. Pradhan v. State of Sikkim RLW 2002 (1) SC 27 in PP Unnikrishnan and Anr. v. Puttlyottil Allukitty and Anr. 2000 Cr.L. (SC)672 and a judgment of this Court in Bharat Singh v. Smt. Vimla, RLW 2002 (1) Rajasthan 358 . 8. Learned counsel for the respondent has relied on a judgment of Hon'ble Supreme Court in N.K. Ogle v. Sanwaldas @ Sanwalmal Ahuja, 1999 Cr.L.R.(SC)184 9. in P.K. Pradhan's case (supra) it was held by the Apex Court that for claiming protection under Section 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 Section 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 for opportunity for the acts, then no sanction would be required. 10. In PP Unnikrishnan' case (supra), while considering the provisions of Section 64(3) of the Kerala Police Act, the Apex Court observed that if sub-section (3) of Section 64 of the K.P. Act is given the interpretation sought for by the learned counsel for the appellants, it may give rise to calamitous consequences, e.g. if a police officer inflicts torture on a prisoner inside the lock-up and he knows that the right of the prisoner to move within the time prescribed for such acts would stand permanently debarred after the expiry of six months, he might inflict such sorts or physical harm to the prisoner as to disable him from moving out for the next 6 months so that the offending policeman would stand permanently amounted from any prosecution proceedings In respect of the offence committed by him. 11. In Bharat Singh's case (Supra), it has been held that in case of absence of reasonable nexus between the act of discharge of official duty, there is no necessity to obtain prior sanction of the Govt. There must be a reasonable nexus between the act and the discharge of official duty. The act must bear such relation to the duty that the accused could lay a reasonable claim but not a pretended or fanciful claim that he did it in the course of performance of his duty. 12. There must be a reasonable nexus between the act and the discharge of official duty. The act must bear such relation to the duty that the accused could lay a reasonable claim but not a pretended or fanciful claim that he did it in the course of performance of his duty. 12. A Constitutional Bench of Hon'ble Supreme Court in Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 , observed that "where a power is conferred or a duty is imposed by statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it Is reasonable to hold that it caries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands of things to be done, it authorises the performance of whatever may be necessary for executing its command." 13. In N.K. Ogle's case (Supra) the Hon'ble Supreme Court, relying on Constitution Bench judgment of Hon'ble Supreme Court in Matajog Dobey's case (supra) in para No. 7 observed as under : "The Constitution Bench decision of this Court in Matajog Dobey's case (supra) clearly enunciates where a power is conferred or a duty is imposed by statute or otherwise and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any imitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution, because it is a rule that when the law commands a things to be done, it authorises the performance of whatever may be necessary for executing its command. The Court was considering in the said case the allegation that the official authorised in pursuance to a warrant issued by the income tax investigation commission in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him mercilessly causing injuries and for such act a complaint had been filed against the concerned public officers. This Court, however, came to held that such a complaint cannot be entertained without a sanction of the competent authority as provided under Section 197 Cr.P.C. This Court had observed that before coming to a conclusion whether the provisions of Section 197 of the Code of Criminal Procedure will apply, the Court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim that he did it in the course of the performance of his duty. Applying the aforesaid ratio to the case in hand the conclusion is inescapable that the act of the Tehsildar in seizing the Scooter of the respondent was in a discharge of his official duty which he has required to do on the basis of the order issued by the Collector for getting the lease money from the respondent and the said act cannot be said to be a pretended or fanciful claim on the part of the Tehsildar. The High Court in our view committed error at that stage in examining the flaw or legality of the order of attachment issued by the Tehsildar." 14. The Hon'ble Supreme Court further held that the acts complained of by the respondent against the Tehsildar had been committed In a discharge of the official duty of the such Tehsildar and therefore, no cognizance can be taken by any Court without prior sanction of the competent authority. 15. The case In hand when examined by applying the ratio of the cases in Matajog Dobey and N.K. Ogle (supra), I find that there is a reasonable connection between the act complained of by the petitioner and discharge of official duty by the respondent. The petitioner was arrested on a complaint to the police and was produced before the respondent who at the relevant time was holding the post of Tehsildar and Executive Magistrate. The petitioner failed to produce the bail bond and the surety bond of solvent person and therefore, he was remanded to the judicial custody and subsequently on having furnished personal bond in the sum of Rs. The petitioner failed to produce the bail bond and the surety bond of solvent person and therefore, he was remanded to the judicial custody and subsequently on having furnished personal bond in the sum of Rs. 25,000/ and a surety bond in the like amount to the satisfaction of the respondent, petitioner was released by the respondent, and therefore, the irresistible conclusion is that there was reasonable nexus between the act of the respondent remanding the petitioner to judicial custody while discharging the official duty as Executive Magistrate. The act of the respondent cannot be separated from the discharge of his official duty. The petitioner was produced after having been arrested by the police on a written complaint for breach of peace and the respondent, while exercising the power conferred on him under the provisions of law, remanded him to judicial custody, unless the petitioner offered the bail and surety bonds as directed by the respondent and when the petitioner ultimately offered the bail and surety bonds, he was released by order dated 9.11.99 and therefore, the act complained of was in discharge of the official duty. This act cannot be separated from discharge of official duty, and therefore, the respondent is entitled for protection under Section 197 Cr.P.C. 16. In this view of the matter, I am of the considered view that the trial court was justified in dismissing the complaint for want of prior sanction of the competent authority under section 197 Cr.PC. In the circumstances, I do not find any error or illegality in the order impugned. The revision petition has no merit and it is dismissed accordingly.Revision Dismissed. *******