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2006 DIGILAW 1034 (MP)

AMOLAK SINGH CHHABRA v. STATE OF MADHYA PRADESH

2006-08-31

S.C.VYAS

body2006
S. C. VYAS, J. ( 1 ) THIS is a petition filed under Section 482 of the Code of Criminal procedure (for brevity hereinafter shall be referred to as the 'code')for quashment of the proceedings of Criminal Case No. 3966 of 2006 against the petitioner pending in the court of Chief Judicial Magistrate, Ratlam for offence under Sections 120b, 420, 467, 468 and 471 of the Penal Code. ( 2 ) SHORT facts of the case are that petitioner at the relevant point of time was working as District Excise Officer, Ratlam. The contract of buy and sale of Poppy straw for revenue district Ratlam for the year 1999-2000 was awarded to one Pinkesh Porwal in an auction sale. The said Pinkesh Porwal has transferred his liability and rights arising out of the said contract to one Harinder Pal Singh with the consent of Collector, Ratlam. ( 3 ) IN order to clear the balance of the year 1999-2000, the said Harinder Pal Singh deposited Call Deposit Receipts (hereinafter the 'cdrs')amounting to Rs. 13. 00 lakh drawn on Canara Bank, Navyug Market Branch, ghaziabad in favour of Excise Department, ratlam. He also deposited one Demand Draft drawn on Canara Bank, Dadri Branch for an amount of Rs. 5. 00 lakh. The said CDRs and dd were accepted by the present petitioner and were sent for clearance to the State Bank of India, Collectorate Area Branch, Ratlam of 27. 3. 00. ( 4 ) IN order to participate in auction for the year 1999-2000, the said Harinder Pal singh delivered another CDR bearing No. 797209 dated 6. 3. 00 drawn on Canara Bank, navyug Market, Ghaziabad Branch for an amount of Rs. 27. 00 lakh in lieu of earnest money. The said Harinder Pal Singh is also an accused for commission of the alleged offence. Later on accused Harinder Pal Singh approached the petitioner on 31. 3. 2000 and deposited Rs. 10. 00 lakh in cash with the Excise department and requested the petitioner that cdrs of Rs. 13. 00 lakh be returned to him by recalling from the Bank, as the total amount to be recovered from him was to the tune of rs. 15. 00 lakh. ( 5 ) PRESENT petitioner, thereafter wrote a letter to State Bank of India, Ratlam Branch for returning the alleged CDRs to co-accused harinder Pal Singh. 13. 00 lakh be returned to him by recalling from the Bank, as the total amount to be recovered from him was to the tune of rs. 15. 00 lakh. ( 5 ) PRESENT petitioner, thereafter wrote a letter to State Bank of India, Ratlam Branch for returning the alleged CDRs to co-accused harinder Pal Singh. It has further been alleged that since huge amount was due and outstanding against harinder Pal Singh with regard to the contract awarded for the year 1999-2000 and he was required to clear the outstanding amount before taking part in auction proceedings for the 2000-2001. ( 6 ) IN the meantime, Collector, Ratlarn received an information from Excise Commissioner, gwalior and also from the present petitioner, who read news published in the newspaper to the effect that some persons are using forged CDRs for the purpose of obtaining excise contract. Thereafter, Collector Ratlam directed the petitioner to verify the fact and call by fax verification report from Canara bank, Ghaziabad Branch with regard to validity of CDRs. The present petitioner had already sent the CDRs deposited by Harinder Pal Singh to Canara Bank, Ghaziabad for clearance. Later on at the direction of Collector, Ratlam, fax message was sent to the said Bank on 4th April, 2000, as earlier letter was not replied by the bank. In response to the fax message, the said bank informed that the alleged CDRs and DD deposited by Harinder Pal Singh were found forged. ( 7 ) AFTER receiving this information, the present petitioner sent a letter on 4th April, 2000 to SHO, Station Road, Ratlam and in turn SHO, Ratlam on the basis of the said letter FIR was recorded against Harinder Pal singh and investigation was commenced. Later on investigation was handed over to State economic Offence Bureau, Bhopal. The bureau after investigation, filed a charge-sheet against Harinder Pal Singh and other persons including the present petitioner for commission of offence under Sections 420, 467, 468, 471 and 120b of the Penal Code. ( 8 ) AS against the present petitioner it is mentioned in the charge-sheet that he accepted the alleged CDRs of Kamdhenu Yojna and DD against the earnest money, whereas, the said amount should have been deposited through dd or in cash. It has also been alleged that by accepting forged CDRs and DD, the present petitioner caused a loss of Rs. 13. It has also been alleged that by accepting forged CDRs and DD, the present petitioner caused a loss of Rs. 13. 00 lakh to the Government which was the amount of licence fee. It has also been alleged that present petitioner failed to examine the forged CDRs and DD at the time of its presentation before him. He was required to be more vigilant and cautious and should have come to the conclusion on a mere look, that those CDRs were forged. It has further been alleged that when Harinder Pal Singh deposited some amount in cash and requested the petitioner for returning back the forged CDRs then present petitioner was also agreed with his request and sent a letter to the Bank for returning the same. On the basis of the aforesaid allegations in the charge-sheet, it has been contended that present petitioner was having a criminal conspiracy with Harinder Pal Singh and therefore he also committed offences punishable under Sections 420, 467, 468, 471 and 120b of the Penal Code. ( 9 ) LEARNED Counsel Mr. S. K. Vyas, appearing for petitioner has raised two-fold contentions. Firstly, he submitted that it was not possible for the petitioner to examine the alleged CDRs and DD by naked eyes and to arrive immediately at the conclusion that those cdrs are forged one, because those were sent to the concerning Bank for collection/clearance and even the Bank officers who are expert in dealing with such documents in their usual course of working, could not have noticed that they are forged one and therefore they have sent those CDRs and DD to Canara Bank, ghaziabad for clearance/collection without any report that apparently those CDRs are forged one. ( 10 ) SECONDLY, he contended that present petitioner was working as a public servant and had discharged his duties as such and all the acts which are alleged to have been committed by him while discharging his duties as a public servant and, therefore, he should not have been prosecuted without prior sanction of the State government as envisaged in Section 197 of the Code. Learned Counsel also submitted that criminal proceedings initiated against him are unsustainable and liable to be quashed. ( 11 ) LEARNED counsel Mr. Learned Counsel also submitted that criminal proceedings initiated against him are unsustainable and liable to be quashed. ( 11 ) LEARNED counsel Mr. S. K. Vyas in this context placed heavy reliance on a recent judgment of the Apex Court reported in the matter of Sankaran Moitra v. Sadhna Das and Anr. , wherein the Apex Court has clearly held that question regarding applicability of section 197 of the Code can be raised at any stage of the trial and Section 197 (1), its opening words and the object sought to be achieved by it clearly indicate that prosecution hit by that provision cannot be launched without the sanction contemplated. It is a condition precedent, as it were, for a successful prosecution of a public servant when this provision is attracted, though the question may arise necessarily not at the inception, but even at a subsequent stage. ( 12 ) PER contra, Mr. Girish Desai, learned dy. Advocate General appearing for respondents State has submitted that question of applicability of Section 197 of the Code would arise only when trial Court will apply its judicial mind on the facts of the case. Presently, only charge-sheet has been filed and except this, nothing more has happened. The Trial Court before framing of charge will consider all aspects of the matter and the submissions of the petitioner including the provisions of section 197 of the Code, whether proceedings can continue even without prior sanction of the State Government. ( 13 ) IT would be proper to quote the relevant part of Section 197 of the Code which reads as under : 197. ( 13 ) IT would be proper to quote the relevant part of Section 197 of the Code which reads as under : 197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or a 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 commission of the alleged offence employed, in connection with the affairs of a state, of the State Government: (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. " ( 14 ) A bare reading of Section 197 (1) of the Code shows that when 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, then before taking cognizance of such offence against the public servant, the concerning Court is required to examine, whether the offences have been committed by the public servant while acting or purported to act in discharge of his official duty and, if it was found that the alleged act which constitutes that offences have been committed while acting or purported to act in discharging of his official duty, then, it was to be seen whether any sanction for his prosecution has been accorded by the concerning Government? If there is no sanction, the prosecution cannot continue and if the Court comes to the conclusion that the alleged offences are not connected with the official duties of the public servant, then, also court can draw a conclusion that sanction is not necessary. ( 15 ) THE Apex Court has considered this question in many cases. In the matter of State of Himachal Pradesh v. M. P. Gupta, it has been held that protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the Legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. ( 16 ) IT has also been held that the said protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. ( 17 ) THE aforesaid observations clearly mandates that before starting the prosecution of a public servant or before passing an order of framing charge against the public servant, it is the duty of Trial Court to examine the exact nature of the alleged acts committed by public servant constitutes a punishable offence and then to adjudicate the question as to whether those acts have some reasonable connection with the official duties of the public servant. If the Court feels that the offence committed by public servant are totally disconnected with the official duties of a public servant, then, even without sanction, charge/s can be framed. If the Court feels that the offence committed by public servant are totally disconnected with the official duties of a public servant, then, even without sanction, charge/s can be framed. Otherwise, if such acts have some reasonable connection with the official duties of a public servant, then, question of necessity of sanction is again required to be examined by the Trial Court. ( 18 ) AS the question of obtaining prior sanction for prosecution of a public servant is a mixed question of facts and law, and material collected by the investigating agency during investigation against the present petitioner are yet to be examined by the Trial Court, therefore, this Court refrain from making any observations on the quality of evidence collected by the prosecution regarding alleged offence or its nature, so far as present petitioner is concerned, and leave this aspect of the matter with the Trial Court. ( 19 ) LEARNED Counsel for the petitioner submitted that trial of a criminal case instituted on a police report starts from the date of filing the charge-sheet before the Trial Court and, therefore, it should be presumed that Trial court has already taken the cognizance in the matter. ( 20 ) IN this regard, learned Counsel drawn attention of this Court towards the certain observations made by Apex Court in the matter of V. C. Shukla v. State through CBP. In the cited matter the question under consideration before the Apex Court was totally different. The Apex Court had examined the matter for the purpose of deciding whether an order of framing of charge comes under the purview of the term, "interlocutory order," or it can be treated as, "final order". In that context it was observed that proceedings of the trial began from the date of filing of the charge-sheet. Since the question before the Apex Court was quite different. Therefore observations made in the referred case are not of much help to the present petitioner. ( 21 ) THE said question was also examined by the Apex Court in the matter of State of west Bengal and Anr. v. Md. Khalid and anr. In para 43 and 44 it was observed that expression cognizance has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. ( 21 ) THE said question was also examined by the Apex Court in the matter of State of west Bengal and Anr. v. Md. Khalid and anr. In para 43 and 44 it was observed that expression cognizance has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word, "cognizance" indicates the point when a magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. The definition of word "cognizance" as given in Wharton's Law Lexicon 14th Edn. , at page 209 was also taken into consideration and then it was held that it has, thus, reference to the hearing and determination of the case in connection with the offence. ( 22 ) IT appears that present petitioner has come up before this Court in a hist-haste manner before taking cognizance of the offence by the Trial Court and even prior to raising the question of sanction under Section 197 (1) of the Code before that Court. It would be proper that this Court should not express its opinion on the facts of the case and leave it for its adjudication by the Trial Court. The petitioner may raise all the relevant objections of law and facts before the Trial Court before taking cognizance of the offence, so that Trial court may take notice of all the objections which would be raised by petitioner and, thereafter, it express its opinion on the question of nature of offence and necessity of Obtaining prior sanction in respect of the prosecution of the present petitioner. ( 23 ) FOR the foregoing reasons, the present petition appears to be filed at premature stage. Therefore the same stands dismissed with a direction to the petitioner to raise all these objections and legal grounds before the Trial court which have been projected in this petition. ( 23 ) FOR the foregoing reasons, the present petition appears to be filed at premature stage. Therefore the same stands dismissed with a direction to the petitioner to raise all these objections and legal grounds before the Trial court which have been projected in this petition. It is made clear that observations made in this order would not come in the way of trial Court while adjudication of any question involved in the matter. Petition dismissed as premature. .