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2006 DIGILAW 368 (AP)

T. K. Ramamani v. Akkala Rama Saibaba

2006-03-16

P.S.NARAYANA

body2006
( 1 ) THE petitioners/accused in Cr No 15/2005 on the file of Judicial First Class Magistrate, gadwal, Mahabubnagar District, had filed the present Criminal Petition under section 482 of the Code of Criminal procedure, 1973 (hereinafter in short referred to as "code") praying for quashing of the proceedings in the aforesaid complaint The 1st respondent/complainant in C C No 15/ 2005 is the Chairperson of the Gadwal municipality The petitioners/accused at the relevant point of time were the Revenue divisional Officer, Gadwal, Mandal Revenue officer, Gadwal, Manager, Gadwal municipality, Town Planning Superintendent, gadwal Municipality and Sub-Inspector of police, Gadwal Town Police Station The petitioners/accused are shown specifically by their names and further describing their offices too The learned Judicial First class Magistrate, Gadwal had taken the case on file for offences punishable under section 323, 324, 504 and 509 r/w section 149 of the Indian Penal Code (hereinafter in short referred to as "ipc") as against the petitioners/accused 1 to 5 ( 2 ) CONTENTIONS of Sri Bali Reddy - sri Bali Reddy, the learned Senior Counsel representing the petitioners had taken this court through the allegations made in the complaint and would maintain that in the light of the facts and circumstances, the acts complained of should be taken as having happened during the course of discharge of their duties in their respective official capacities and hence without obtaining prior sanction under Section 197 of the Code, the very taking of cognizance of these offences as against the petitioners/accused by the learned Magistrate cannot be sustained. The learned Counsel also would maintain that on a careful reading of the contents of the complaint and the averments made in the aforesaid complaint, it is clear that the same had been thought of more as a political game and no doubt several serious allegations were made. The learned Counsel would maintain that these allegations made in the complaint prima facie are to be taken as false or absurd especially in the light of the stand taken by the 1st respondent/complainant in the report given to the S. I. of Police, Gadwal dated 20-1-2005 whereunder it was specified that she wanted to proceed with the hunger strike till the statute which was removed is again erected at the self-same place and till the concerned Officers are suspended. The learned Counsel also pointed out that it was specified that without any reason she was beaten and the statue was removed. On the strength of the false report given by the manager, Biyabani certain hired goondas without any reasons had removed the statue and beat her and for that reason she had decided to proceed with the hunger strike unto death till her demands are satisfied. The learned Senior Counsel would maintain that in the light of this report it can be taken that all the allegations made in the complaint are afterthought only with a view to implicate the petitioners/accused. The learned Counsel also further explained the scope and ambit of the orders made by this Court in Writ Petition no. 6764/2003 and also in Review w. P. M. P. No. 27846/2004in the afore said Writ petition. The learned Counsel also had drawn the attention of this Court to the correspondence in relation to this episode and had pointed out to the guidelines prescribed by the Government and g. O. Ms. No. 55,transport, Roadsand Buildings (R-1) Department dated 8-4-2003. The learned Senior Counsel ultimately would conclude that even if on a reading of the allegations it is to be taken that the petitioners/ accused/officials exceeded and had been a bit over zealous in discharging their duties, this would not alterthe situation in any way as far as the ground of want of sanction under section 197 of the Code is concerned. The learned Senior Counsel thoroughly had pointed out to several of the proceedings and the internal correspondence in this regard. ( 3 ) CONTENTIONS of Sri Srinivas Reddy: sri Srinivas Reddy, the learned Counsel representing the 1st respondent/complainant had taken this Court through the orders made in W. P. No. 6764/2003 and also in w. P. M. P. No. 27846/2004 and would maintain that by virtue of the modified order, the 1st respondent is at liberty to install the statute at any place other than the Rajiv Chowk of main road, Gadwal. The learned Counsel also had drawn the attention of this Court to the municipal Council s resolution and had further pointed out to the sworn statements which had been recorded wherere specific allegations had been made as against the petitioners/accused. The learned Counsel also had drawn the attention of this Court to the municipal Council s resolution and had further pointed out to the sworn statements which had been recorded wherere specific allegations had been made as against the petitioners/accused. The learned Counsel would maintain that the acts complained of are such atrocious acts which cannot be said to have any nexus at all to their so-called official duties and hence under the guise of alleged discharging of official duties the petitioners/accused cannot escape from the criminal liability in the light of the specific allegations made which may have to be gone into at the appropriate stage. The learned counsel also would maintain that the 1st respondent had not violated any of the guidelines specified in G. O. Ms. No. 55 aforesaid and in fact as a Chairperson heading a Local Body she had proceeded with erection or installation of the statue in accordance with the procedure only, but for the reasons best known, may be due to political pressure, the petitioners forgetting their official capacities had resorted to such illegal acts which would constitute specific offences and hence the proceedings cannot be quashed atthis stage. The learned Counsel also placed strong reliance on a decision of the three judge Bench of the Apex Court in Centre for public Interest Litigation v. Union of India. ( 4 ) CONTENTIONS of Public Prosecutor: the learned Public Prosecutorhoweverwould maintain that certain guidelines were prescribed by the Government in g. O. Ms. No. 55 aforesaid. The learned counsel also would maintain that no doubt there are certain judicial orders made in w. P. No. 6764/2003 and in Review w. P. MP. No. 27846/2004, but in the light of the correspondence between the officials it is clearthat the petitioners/accused in discharge of their official duties had taken steps to see that the statue installed contrary to the procedure had been duly removed. However, the learned Public Prosecutor would maintain that all the acts which had been complained of - the removal of saree, the series of assaults made etc. , cannot be said to be part and parcel of the official duties of the petitioners/accused. ( 5 ) HEARD the Counsel on record and perused the material available on record. However, the learned Public Prosecutor would maintain that all the acts which had been complained of - the removal of saree, the series of assaults made etc. , cannot be said to be part and parcel of the official duties of the petitioners/accused. ( 5 ) HEARD the Counsel on record and perused the material available on record. ( 6 ) AT the outset it may be stated that though it appears that at the earliest point of time when the 1st respondent had put the S. I. of Police on notice that she was aggrieved of the act of removal of the statue of her husband and as a protest thereof she intends to proceed with hunger strike unto death, several of the allegations no doubt were not specified. But however, this is a question which may have to be gone into at the appropriate stage. It is needless to say that while deciding a criminal Petition of this nature under section 482 of the Code praying for quashing of the proceedings, the allegations made in the complaint alone may have to be looked into and not all the probable defences which may be available to the petitioners/accused. It may be that G. O. Ms. No. 55 aforesaid and several other proceedings inclusive of the internal correspondence are being relied upon only to show the bona fides of these Officers that they have been simply discharging their duties and nothing beyond thereto. Except for the said limited purpose, the said material placed before this Court needs no serious consideration at this stage at the hands of this Court. ( 7 ) THE petitioners are public servants and they were charged with offences already aforesaid in C. C. No. 15/2005. The 1st respondent/complainant is the wife of late akkala Saibaba who died in an accident on 16-4-2000 and his death appears to be immediately after he being elected as the chairman of the Gadwal Municipality. His wife, the 1st respondent, succeeded to the said post and the Municipal Council passed a resolution on 31-1-2002 for installation of the statue of the said Akkala Saibaba in the premises of the Municipal office. His wife, the 1st respondent, succeeded to the said post and the Municipal Council passed a resolution on 31-1-2002 for installation of the statue of the said Akkala Saibaba in the premises of the Municipal office. It is stated that certain Municipal Councillors filed w. P. No. 6764/2003 questioning the intended action of the 1st respondent to erect the statue of her husband on the Rejiv Marg near municipal Office and this Court made an order on 12-8-2003 directing the respondents not to install the proposed statue at any place within the limits of Gadwal Municipality. While so, Review W. P. MP. No. 27846/2004 was filed in the said Writ Petition and by order dated "18-11-2004 the earlier order was modified to the effect that the statue can be installed at any place other than the Rajiv chowk of main road, Gadwal. The real episode commences thereafter. It appears in pursuance of the said order, the 1st respondent got installed the statue of her husband in the premises of the Municipal Counsel on 16-1-2005 and it is stated that the same is without the permission of the competent authority The correspondence between the officials to see that the statue is removed had been narrated in detail. G. O. Ms. No. 55, transport, Roads and Buildings (R-1) department dated 8-4-2003 and the contents thereof also had been pointed out at length by the Counsel on record. It is also not in serious controvery that the 1st respondent/ complainant had undertaken hunger strike on 20-1-2005 and a specific ground was raised that when the Medical Superintendent, area Hospital examined her on 2-11-2005 there were no scratches on her body. It is needless to say that this may be a probable defence which may have to be raised at the appropriate stage. Hence the only question which may have to be decided is whether the cognizance taken by the learned Magistrate as against the petitioners/accused/officials without sanction under Section 197 of the code can be sustained or the same is liable to be quashed in the facts and circumstances of the case. In the considered opinion of this court at this stage, this is the only question which may have to be dealt with in elaboration, just keeping in view the averments made in the complaint and not beyond thereto. In the considered opinion of this court at this stage, this is the only question which may have to be dealt with in elaboration, just keeping in view the averments made in the complaint and not beyond thereto. ( 8 ) SPECIFIC allegations were made against the petitioners/accused attributing specific overtacts relating to the assaults, removing saree and the like acts. There cannot be any doubt whatsoever that in the light of the specific allegations made in the complaint and the sworn statements which had been recorded by the learned Magistrate, the acts alleged to have been committed by the petitioners/accused as such may not form part and parcel of their official duties. Section 197 of the Code corresponds to section 197 of the 1898 Code. In Baijnath gupta v. State of Madhya Pradesff it was held that sanction has to be taken before cognizance being taken. It may be appropriate to have a look at the provision as such and section 197 of the Code reads as hereunder: prosecution of Judges and public servants: (1) When 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- (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. Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if forthe expression "state Government" occurring therein, the expression central Government were substituted. Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if forthe expression "state Government" occurring therein, the expression central Government were substituted. (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "central government" occurring therein, the expression "state Government" were substituted. (3-A) Notwithstanding anything contained in sub-section (3), no Court shall take cognizance of any offence, alleged to have been committed by any member of the forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of Article 356 of the constitution was in force therein, except with the previous sanction of the Central Government. (3-B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the state Government or any cognizance taken by a Court upon such sanction, during the period commencing on the 20th day of august, 1991 and ending with the date immediately preceding the date on which the Code of Criminal procedure (Amendment) Act, 1991 receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under Clause (1) of Article 356 of the constitution was in force in the State, shall be invalid and it shall be competent for the Central government in such matter to accord sanction and for the Court to take cognizance thereon. " (4) The Central Government orthe 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. " ( 9 ) THERE cannot be any serious controversy that there must be a reasonable nexus between the act and the discharge of official duty and the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty. The undernoted decisions may be referred to in this context: s. S. Sambhu v. V. S. Krishnaswamy, manohar Nath v. State of J and K, Matajog dubey v. H. C. Bharp, K. Satwant Singh v. State of Punjab, Pukhraj v. State of rajastharf, Srivastava v. Misra, Bakshish singh Dhaliwal v. State of Punjab, Balbir singh v. D. N. Kadian, Dhannjay Ram sharma v. M. S. Uppadaya, R. R. Chari v. State of a P. The decision of the Privy Council in Gill v. The King also may be referred to in this context. ( 10 ) THE object of protection is to secure public servants against vexatious proceedings and to see that no proceeding is started against them unless there are good reasons to suppose that there is some foundation to the charges. Strong reliance was placed on a decision of the Apex Court referred (1) supra wherein the Apex Court while dealing with the object of Section 197 of the Code held at paras 9 to 12 as hereunder:"the protection given under Sec. 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 it sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. 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 it sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This 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 from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to law 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 made him answerable for a charge of dereliction of his official duty. 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 made 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 such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of an the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend is protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. "if on facts, therefore, it is prima facie found that the act of omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. Above position was highlighted in p. Balakrishna Piliai v. State of Kerala ( 1996 (1) SCC 478 , State of H. P. v. M. P. Gupta ( 2004 (2) SCC 349 , State of orissa v. Ganesh Chandra Jew ( 2004 (8) SCC 40 and S. K. Zutshi v. Bimal Debnath (2004) 8 SCC 31 ). ( 11 ) THUS, the test to decide whether a particular act falls within the official duty or not, would be, to see whether the omission or neglect to do that act, would have brought in the charge of dereliction of the official duty. It is true that if the allegations made in the complaint in the present case at a glance are taken into consideration, on their face, it may appear that these acts of removing saree or assaulting and the other like acts, may not form part and parcel of discharge of the official duties. It is true that if the allegations made in the complaint in the present case at a glance are taken into consideration, on their face, it may appear that these acts of removing saree or assaulting and the other like acts, may not form part and parcel of discharge of the official duties. It is also pertinent to note that in several of the cases, to escape the rigor of want of sanction the averments or the complaint would be couched in a particular fashion, but however the Courts are expected to make a close scrutiny of the allegations and all the circumstances in relation thereto. The words ". . . while acting or purporting to act in discharge of his official duty. . . " in sub-section (1) of Section 197 of the Code would assume some importance. The expression "purporting to act in the discharge of his official duty" had been introduced in section 197 of the Code with a specific purpose. This Court need not seriously dwell upon the other contentions which had been argued in elaboration by the Counsel on record in this regard. In this context, it may be useful to reiterate the observations of the three Judge Bench of the Apex Court at para 9 in the decision referred (1) supra, which are as hereunder:"if in doing his official duty he acted in excess of his duty but there is a reasonable connection between the act and the purpose of the official duty, the excess will not be a sufficient ground to deprive a public servant from the protection. "on a careful reading of the averments made in the complaint, it appears that the 1st respondent/complainant is more aggrieved of the removal of the statue and evidently the same was done because of the decision taken by the official to the effect that the procedure required to be followed had not been followed. While discharging such duties, may be that it can be said that the officials had exceeded or whiledischargingtheirduties the petitioners/accused/officials had been over zealous, but in the considered opinion of this Court this by itself may not take these officials out of the protected umbrella of section 197 of the Code. If such interpretation is to be given, then the object of Section 197 of the Code would be frustrated. If such interpretation is to be given, then the object of Section 197 of the Code would be frustrated. It is also made clear that this protective umbrella cannot be stretched too far when the Court is thoroughly satisfied that the offences with which such accused are charged absolutely have no nexus to their official duties at all. This Court need not express any further opinion nor lay down the guidelines in this regard. Suffice to state that in the peculiar facts and circumstances of this case, this court is satisfied that for having redressal of extraneous grievances this private complaint had been though of and hence it would not be just and proper to further permit the proceedings to be proceeded with especially in the light of the clear bar imposed by section 197 of the Code. ( 12 ) ACCORDINGLY, the proceedings in c. C. No. 15/2005 on the file of Judicial First class Magistrate, Gadwal are hereby quashed and the Criminal Petition is allowed.