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2006 DIGILAW 2015 (PNJ)

Sukhdev Singh v. State Of Haryana

2006-05-10

ADARSH KUMAR GOEL

body2006
Judgment Adarsh Kumar Goel, J. 1. This petition has been filed for quashing of complaint, Annexure P-1; order of summoning, Annexure P-2 and order of commitment, Annexure P-3 on the ground of absence of sanction under Section 197 of the Code of Criminal Procedure. 2. Case of the complainant is that he was President of Kissan Union and he was on a Dharna on 23.8.1995. The accused opened fire on the crowd on account of which five persons died and many were injured. The agitation was on account of absence of adequate electricity supply and issuance of heavy bills. The agitation was called of on certain assurances, but still remedial measures were not taken leading to fresh agitation on the fateful day. Accused Sukhdev Singh exhorted others that the demonstrators be taught a lesson on which accused Inder Singh and others caused fire. After considering the preliminary evidence, the petitioners have been summoned and they stand committed for trial. 3. Case of the petitioners is that they were on official duties to control the demonstration and the crowd became violent. The SDM first directed use of tear gas and thereafter, ordered opening of fire. The petitioners in obedience to the said order opened fire. 4. Learned counsel for the petitioners submitted that on admitted facts, the petitioners acted in discharge of their official duties and cannot, thus, be prosecuted without sanction. He has, inter alia, placed reliance on a judgment of the Honble Supreme Court in Abdul Wahab Ansari v. State of Bihar, 2004(2) RCR(Crl.) 215 : 2000(4) RCR(Criminal) 572 : 2001 SCC (Criminal) 18 wherein it was observed as under :- "7. Previous sanction of the competent authority being a precondition for the Court to taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, 1998(1) RCR(Crl.) 165 : 1998 SCC(Crl.) 1, a similar contention had been advanced by Mr. Sibal, the learned Senior Counsel appearing for the appellants in that case. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, 1998(1) RCR(Crl.) 165 : 1998 SCC(Crl.) 1, a similar contention had been advanced by Mr. Sibal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had held on the application of the accused that the provisions of Section 197 get attracted. Rejecting the contention, this Court had observed : (SCC pp. 217-18, para 23) "The legislative mandate engrafted in sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings." The court had further observed : (SCC pp. 218-19, para 24) "The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the Court to take cognizance without a valid sanction is genetically different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary material which can be legally looked into without any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority." 8. In the case of Ashok Sahu v. Gokul Saikia, 1990 SCC(Cri.) 611, this Court had said that want of sanction under Section 197 of the Code is a prohibition against institution of the proceedings, and the applicability of the section must be judged at the earliest stage of the proceedings and in that case, the Court directed the Magistrate to consider the question of sanction before framing a charge. In yet another case, in the case of B. Saha v. M.S. Kochar, 1979 SCC(Cri.) 939, a three-Judge Bench of this Court had held that the question of sanction under Section 197 Cr.P.C. can be raised and considered at any stage of the proceedings and further in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. This being the position, we are of the considered opinion that the decision of this Court in Birendra K. Singh case does not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time. 9. Coming to the second question, it is now well settled by the Constitution Bench decision of this Court in Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44, that in the matter of grant of sanction under Section 197 of the Code of Criminal Procedure the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. In other words, there must be a reasonable connection 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 the performance of his duty. In the said case it had been further held that where a power is conferred or a duty 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 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 thing to be done, it authorises the performance of whatever may be necessary for executing its command. This decision was followed by this Court in Suresh Kumar Bhikamchand Jain case, 1998 SCC(Cri.) 1 and in recent judgment of this Court in the case of Gauri Shankar Prasad v. State of Bihar, 2000(2) RCR(Crl.) 708 : 2000 SCC(Cri.) 872. The aforesaid case has full force even to the facts of the present case inasmuch as in the said case, the Court had observed : (SCC p. 21, para 14) "It is manifest that the appellant was present at the place of occurrence in his official capacity as Sub-Divisional Magistrate for the purpose of removal of encroachment from government land and in exercise of such duty, he is alleged to have committed the acts which form the gravamen of the allegations contained in the complaint lodged by the respondent. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. In such circumstances, it cannot but be held that the acts complained of by the respondent against the appellant have a reasonable nexus with the official duty of the appellant. It follows, therefore, that the appellant is entitled to the immunity from criminal proceedings without sanction provided under Section 197 Cr.P.C." It is not necessary for us to multiply authorities on this point and bearing in mind the ratio of the aforesaid cases and applying the same to the facts of the present case as indicated in the complaint itself, we have no hesitation to come to the conclusion that the appellant had been directed by the Sub- Divisional Magistrate to be present with police force and remove the encroachment in question and in course of discharge of his duty to control the mob, when he had directed for opening of fire, it must be held that the order of opening of fire was in exercise of the power conferred upon him and the duty imposed upon him under the orders of the Magistrate and in that view of the matter the provisions of Section 197(1) applies to the facts of the present case. Admittedly, there being no sanction, the cognizance taken by the Magistrate is bad in law and unless the same is quashed qua the appellant, it will be an abuse of the process of Court. Accordingly, we allow this appeal and quash the criminal proceeding, so far as the appellant is concerned." Learned counsel for the complainant further submitted that the nexus of the alleged acts constituting the offence with the official duty is a question of fact, which cannot be gone into in quashing petition. Reliance is placed on a judgment of this Court in Dharam Singh v. Kaptan Singh, 2002(1) RCR(Criminal) 357 : 2002(1) Recent Criminal Cases 545. In view of judgment of the Honble Supreme Court in Abdul Wahab Ansari (supra), where on admitted facts nexus with official duty is patent, prosecution cannot proceed without sanction. 5 Accordingly, summoning of the petitioners is quashed without prejudice to any fresh proceedings being taken in accordance with law.