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2006 DIGILAW 1220 (BOM)

SUNIL s/o RAMRAO PARASKAR v. STATE OF MAHARASHTRA

2006-08-09

K.J.ROHEE

body2006
ORAL JUDGMENT :- Rule made returnable forthwith. Heard finally nsent of parties. 2. By this application under section 482, Criminal Procedure Code read Articles 226 and 227 of the Constitution of India, the applicant seeks to quash the order of the judicial Magistrate, First Class, 10th Court , Nagpur in under section 258 , criminal Procedure Code for stopping in prosecution and the order of the 2nd ad hoc Additional sessions judge , Ngpur conforming the said order in Criminal revision Application No. 276/2006 on 5-6-2006. 3. In order of the Judicial Magistrate, First Class, 10th Court, Nagpur in No. 681/2004 dated 5-12-2005 rejecting the application of the applicant section 258, Criminal Procedure Code for stopping the prosecution and the of the 2nd Ad hoc Additional Sessions Judge, Nagpur confirming the said in Criminal Revision Application No. 276/2006 on 5-6-2006. 3. In order to appreciate the grievance of the applicant it is necessary to see background of the case in brief: A party was hosted by Police Head Constable to celebrate his promotion. A Khansama was called for cooking food. The said Khansama was subsequently beaten by the policemen who participated in the said party. As a result of the beating the Khansama died. His dead body was brought to the National Highway left there in order to make a show of accidental death. Initially accidental under section 174, Criminal Procedure Code was registered at Police , Buttibori (Nagpur). Subsequently offence under sections 302, 201, Indian Penal Code was registered by Nagpur Rural Police. On the request of Nagpur Rural Police, investigation was transferred to State CID. The State CID crime), Nagpur investigated into the matter and closed the prosecution in 1995 praying for A Summary. A Summary was granted by the concerned Magistrate. Feeling aggrieved by the closer of the case the widow of the said khansama filed Writ Petition No. 294/1996 before this Court. By order dated 147 this Court directed that an offence should be registered against the respondents therein and any other persons. This Court also directed CID (Crime) Nagpur to file charge-sheet after completion of investigation within two months. Accordingly charge-sheet came to be filed against those persons for the offence punishable under section 302 of Indian Penal Code. The Additional Sessions judge, Nagpur acquitted the accused therein by judgment dated 31-7-1998. 4. This Court also directed CID (Crime) Nagpur to file charge-sheet after completion of investigation within two months. Accordingly charge-sheet came to be filed against those persons for the offence punishable under section 302 of Indian Penal Code. The Additional Sessions judge, Nagpur acquitted the accused therein by judgment dated 31-7-1998. 4. In the same writ petition this Court issued notice to the present applicant other police officers concerned with the investigation to show cause as to appropriate action, in accordance with law, should not be taken against them for dereliction of official duty. This court further directed the State to launch cution against the applicant and others under section 217 of Indian Penal and under any other relevant provisions of law. The investigating authority however came to the conclusion that no offence was committed by the application others under section 217 read with section 34 of Indian Penal Code. Hen Summary was filed before the concerned Magistrate. The concerned Magistrate was rejected C Summary on 4-4-2002. Thereafter, reinvestigation was carried out State. A proposal for grant of sanction to prosecute the applicant and other moved on 20-3-2003. The State, however, refused to grant sanction communicated its decision by letter dated 24-8-2004. Despite refusal to sanction to prosecute, charge-sheet came to be filed against the applicant and others. 5. The applicant moved an application before the learned Magistrate stopping the proceedings under section 258 of Criminal Procedure Code. said application was rejected by the learned Magistrate. The said order confirmed by the revisional Court and hence the present application. 6. According to the applicant cognizance of the offence under section of Indian Penal Code cannot be taken by the Court in the absence of sanction under section 197 of Criminal Procedure Code. Both the Courts below commited serious illegality in allowing the proceedings to continue which were untenable right at the very inception. Hence the impugned orders are sought to be quarter and set aside. 7. I have heard Mr. Avinash Gupta, Advocate for the applicant an K. S. Dhote, APP for the respondents/State through crn (Crime), Nagpur. 8. Mr. Gupta, the learned counsel for the applicant, vehemently sub that the offence under section 217 of Indian Penal Code namely public such disobeying direction of law with intent to save person from punishment property from forfeiture, can be committed only by a public servant. 8. Mr. Gupta, the learned counsel for the applicant, vehemently sub that the offence under section 217 of Indian Penal Code namely public such disobeying direction of law with intent to save person from punishment property from forfeiture, can be committed only by a public servant. The nature of the offence under section 217 of Indian Penal Code shows that it committed only by a public servant and none else. Mr. Gupta submitted that offence can be committed only during the course of performance of his duty public servant. Hence previous sanction under section 197 of Criminal Proc Code for prosecution of such public servant is necessary. In the absence of such sanction the Court cannot take cognizance of the offence. 9. In this respect Mr. Gupta relied on S. B. Hussain vs. Emperor, AI 1947 Calcutta 29( a) wherein it is held as under: "Section 217, Penal Code makes punishable a certain dereliction 0 quite apart from the question as to whether any bribe is paid to i such dereliction. The dereliction must, clearly from the nature definition of the offence, be committed in the discharge of the fun of the person charged. Thus, the very nature of the offence und section makes it clear that sanction for prosecution for this office clearly required. Proceedings commenced in respect of the offence under section without first obtaining such sanction are null and void." 10. Mr. Gupta further relied on Sankaran Moitra vs. Sadhna Da and another, .2006(]) MhLJ. (Cri) 903 = (2006)4 SCC 584 , in which the Apex took review of several reported cases under section 197 of Criminal Procedure Code. In the said case the observations in Shreekantiah Ramayya Munipal State of Bombay, AIR 1955 SC 287 about the scope of section 197 and the of It have been referred to. The relevant portion is to the effect that: "if it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official. The relevant portion is to the effect that: "if it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official. Whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it." 11. Pukhraj vs. State of Rajasthan, (1973)2 SCC 701 has been referred to which it was observed that: "while the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty . 12. Rakesh Kumar Mishra vs. State of Bihar, (2006)1 SCC 557 has been reffered to in which it was held that: "The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the Course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. " 13. Its operation has to be limited to those duties which are discharged in the Course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. " 13. Rizwan Ahmed Javed Shaikh vs. Jammal Patel, (2001)5 SCC 7 has referred to in which it was held that: "The real test to be applied to attract the applicability of section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected." 14. In order to stress his contention Mr. Gupta further relied on K. K. Patel another vs. State of Gujarat and another, 2000 All MR Cri) 1232 (SC) in it is held that: "the indispensable ingredient of the said offence is that the offender should have done the act "being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should conducted as such public servant. For the offences under section and 219 of Indian Penal Code the pivotal ingredient is the same as offence under section 166 of Indian Penal Code. In my humble opinion the same analogy would apply to the offence section 217 of Indian Penal Code. 15. In this connection reference can be made to S. K. Zutshi and a vs. Bimal Debnath and another, (2004)8 see 31 in which it is held: "Before section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been commit him while acting or purporting to act in the discharge of his o. duties. It is not the duty which requires examination so much as the because the official act can be performed both in the discharge official duty as well as in dereliction of it. The act must fall with scope and range of the official duties of the public servant concerned is the quality of the act which is important and the protection 0 section is available if the act falls within the scope and range official duty. There cannot be any universal rule to determine whether is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that sure was committed by the public servant while acting in the discharge official duty and there was every connection with the act complain and the official duty of the public servant". 16. In the present case it has been alleged that the investigation in No. 188/1993 was conducted under the supervision of the applicant and Police Officers. It is alleged that they conducted the investigation dishonestly order to screen the policemen responsible for causing the death of Khansa other words, it means that the applicant was responsible for dereliction of not conducting the investigation honestly. It may be seen that description proceedings could have been initiated against the applicant for dereliction duty. Thus the alleged inaction on the part of the applicant relates to an integral part of the official duty of the applicant. 17. Charge-sheet has been filed against the applicant for the offence sections 217 read with 34 of Indian Penal Code. From the case law cited a is apparent that such an offence can be committed only by public servant the discharge of his official duty. Hence previous sanction under section Criminal Procedure Code is absolutely necessary. In the absence of PI sanction the Court is not empowered to take cognizance of such offence the applicant. Thus the Court acted without jurisdiction in taking recognized the offence against the applicant. 18. It was urged by Mr. Hence previous sanction under section Criminal Procedure Code is absolutely necessary. In the absence of PI sanction the Court is not empowered to take cognizance of such offence the applicant. Thus the Court acted without jurisdiction in taking recognized the offence against the applicant. 18. It was urged by Mr. Dhote, the learned APP that the applicant w discharging his duty honestly and acted dishonestly in screening the offenders and hence sanction is not necessary. In view of the case law referred to above, submission finds no support and is without any merit. 19. It was further contended by Mr. Dhote, the learned APP that since in an r writ petition this Court had issued direction to launch prosecution against applicant and others, it is not necessary to seek sanction under section 197, Criminal Procedure Code to prosecute the applicant. 20. The fallacy of this submission can be seen from the fact that after direction by this Court to prosecute the offenders, the prosecution moved the tent authority for grant of sanction under section 197, Criminal Procedure. Had it not been necessary to seek sanction, the prosecution would not have moved the competent authority for grant of sanction. Once the prosecution has moved for obtaining sanction and no sanction was granted, a novel plea is set up no sanction is required as this Court directed to prosecute the offender. It may seen that the direction of this Court to prosecute the offenders cannot be resorted go-bye to the statutory provisions of section 197, Criminal Procedure Code. Courts direction to prosecute the offenders means that they should be proseccuted "in accordance with law" and not by surpassing the provisions of law. the prosecution sought sanction to prosecute the applicant and sanction was refused by the competent authority, the prosecution could not have filed charget against the applicant by saying that no sanction was necessary. It does not fit e mouth of the prosecution to change its plea to suit its convenience. 21. In this connection it may be seen that mandamus cannot be issued to an authority to exercise its discretion in a particular manner. The authority in whom discretion is vested under the Statute has to act independently and not under instructions and orders of another authority. 21. In this connection it may be seen that mandamus cannot be issued to an authority to exercise its discretion in a particular manner. The authority in whom discretion is vested under the Statute has to act independently and not under instructions and orders of another authority. It may be noted that mandamus which is a discretionary remedy under Article 226 of the Constitution is required be issued to compel performance of public duties which may be administrative, ministerial or statutory in nature. In the performance of this duty authority has to exercise its own discretion which is vested in it under the statute. This is what has been done in the present case by the competent authority while refusing sanction to prosecute the applicant. A reference can be made to observations in Mansukhlal Vithaldas Chauhan vs. State of Gujarat, AIR 7 SC 3400 (B). 22. In the present case it seems that both the Courts below were under an session that this Court had directed the State to prosecute the applicant and others and that is why no sanction under section 197, Criminal Procedure Code necessary, As stated earlier this approach is quite incorrect and cannot be id. 23. In the result I find that the prosecution filed against the applicant at proceed and it has to be quashed and set aside for want of sanction under on 197, Criminal Procedure Code. Hence the order; 24. The application is allowed. The proceedings in SCC No. 681/2004 pending before Judicial Magistrate, First Class, Court No. 10, Nagpur against the applicant are quashed and set aside. 25. Rule is made absolute in the above terms. Application allowed.