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Jharkhand High Court · body

2006 DIGILAW 694 (JHR)

Sarvajeet Narayan Jha v. State of Jharkhand

2006-06-13

D.K.SINHA

body2006
Order Heard. 2. The petitioner, Sarvajeet Narayan Jha, herein has preferred this petition under section 482 of the Code of Criminal Procedure for quashing the Complaint petition in C.P Case No. 1186 of 2001 pending in the court of Shri KK Shukla, Sub-Divisional Judicial Magistrate, Dhanbad as well as the order impugned dated 11.10.2001 whereby and whereunder the Chief Judicial Magistrate, Dhanbad has taken cognizance of the offence against the petitioner under Section 323 of the Indian Penal Code. 3. The prosecution is in a narrow compass. The complainant/opposite party no. 2, Lachi Devi, filed a complaint case no. 1186 of 2001 in the Court of the Chief Judicial Magistrate, Dhanbad alleging, inter alia, that in the wee hours of 9.10.2001 at about 4 a.m. while she was sleeping in her house with the members of her family and her son, they woke up on the sound of heavy knock at her doors. On hearing the knock when her son namely Sanjay Sao opened the door of the house, it is alleged that the petitioner and other two accused caught Sanjay Sao branding him that he was involved in dealing with illicit liquor. Sanjay Sao was beaten when he tried to explain to the petitioner and other accused persons that he used to earn his livelihood by shop keeping and was having a valid license in that regard. The petitioner and others also assaulted Complainant/opposite party no. 2 when she tried to rescue her son and as a result of which her lip was cut and bled. The petitioner and other accused persons abused her in filthy language and apprehended her son, San jay Sao, on the pretext that though he had managed to conceal the illicit liquor somewhere, nevertheless he would be sent to prison. Disclosing the genesis the complainant/opposite party no. 2 alleged that her husband had made an application to the Deputy Commissioner, Dhanbad, earlier on 6.6.2001 with regard to atrocities which were earlier committed by the petitioner and co-accused. After enquiry under section 202 of the Code of Criminal Procedure, the cognizance of the offence was taken under section 323 of the Indian Penal Code and summons were directed to be issued against the petitioner and co-accused. After enquiry under section 202 of the Code of Criminal Procedure, the cognizance of the offence was taken under section 323 of the Indian Penal Code and summons were directed to be issued against the petitioner and co-accused. The impugned order dated 28.3.2003 records that facts with regard to recovery of 45 litres of country liquor from the complainant's house on the alleged date of the occurrence on 9.10.2001 was suppressed in the complaint petition. 4. Learned counsel appearing for the petitioner Mr. Rajan Raj submitt J that C.E. Case No. 266 of 2001 was lodged in the Court of the Chief Judicial Magistrate, Dhanbad against the complainant's son Sanjay Sao, in respect of raid conducted by the petitioner on 9.10.2001 and recovery of 45 litres of country liquor thereto and, only with a view to harass the petitioner and to defend himself, in C.E. Case No. 266 of 2001 the complainant/opposite party no. 2 being the mother of Sanjay Sao brought about the present complaint after delay of two days i.e. on 11.10.2001. Injury report (Annexure-4) clearly shows that she sustained minor bruise, may be due to fall on her own fault or in course of illegally resisting the search conducted by the petitioner and others on the date of occurrence. 5. Advancing his argument Mr. Rajan Raj submitted that the criminal prosecution of the petitioner, under the facts and circumstances of the case, comes within the ambit of Section 197 of the Code of Criminal Procedure i.e. the acts done by the petitioner and others in discharge of their official duties and that the petitioner cannot be prosecuted until a superior authority after due consideration is of the opinion' that his acts may constitute an offence and therefore, the sanction under section 197 of the Code of Criminal Procedure is not Sine Qua Non before the criminal prosecution of the petitioner. The protection, therefore, given to a public servant is limited by making the sanction of the Government a condition precedent to the launching of a prosecution on the background that the petitioner, Sarvajeet Narayan Jha, is an Inspector of the State Excise Department. 6. Relying upon a decision reported in Sankarakutty Menon vs. Dy. Superintendent of Police, AIR 1961 Ker. The protection, therefore, given to a public servant is limited by making the sanction of the Government a condition precedent to the launching of a prosecution on the background that the petitioner, Sarvajeet Narayan Jha, is an Inspector of the State Excise Department. 6. Relying upon a decision reported in Sankarakutty Menon vs. Dy. Superintendent of Police, AIR 1961 Ker. 260 learned counsel submitted that the principle underlying Section 197 of the Code of Criminal Procedure is that the act complained of against the public servant must be an offence; reasonable connection between the act complained of and the duty of the officer as a public servant, so that if questioned, the officer may reasonably profess to done that act in exercise or purported exercise of his official duty and the connection between the act and the official duty should be reasonable one and not merely a fanciful one, but the official position should not have been used as a mere cloak to defend the act complained of. 7. Learned counsel pointed out that normally what is done in good faith in execution of official duties is never an offence (Section 79 of IPC). However, in practical life, even honest officers may commit mistakes while diligently discharging their official duties. Learned counsel emphasized that even while acting honestly the public servant might err and expose themselves to prosecution and that Section 197 of the Code of Criminal Procedure has been enacted primarily and essentially to protect such civil servants/ public servant when they purport to act in discharging of their duties to meet the administrative exigencies of the situation and may require such protection, even though a departure from normal course of duties was deliberate. Reliance has also been placed on the decision reported in HG Vartak vs. State 1969 Bom. LR 758. 8. He admitted that an offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. There is no protection in the former case. It is only when it is either within the scope of the official duty, the protection is available. 9. Learned counsel referring the case of Abdulla Mohammed vs. N. Paramasivan Nair (1963) Ker. L.T. 942. There is no protection in the former case. It is only when it is either within the scope of the official duty, the protection is available. 9. Learned counsel referring the case of Abdulla Mohammed vs. N. Paramasivan Nair (1963) Ker. L.T. 942. The Hon'ble Court observed that if the public servant oversteps the bounds of propriety in using abusive language or in employing force to the extent of causing some injury, his action would be reprehensible, but it would still be in the course of discharge of his duties and he cannot be denied the protection of the section. 10. He again referred the case of the State of Bihar vs. Kamala Prasad Singh reported in AIR 1998 SC 2379 in which it was held that sanction for the prosecution was required when search was conducted after obtaining a warrant of arrest under the supervision of an Executive Magistrate and when a complaint was filed subsequently by the owner of the premises that his wife was assaulted during the search and that she was abused by the police and that no such complaint was made at the time of search. 11. Now point for determination in the present case, in the facts and circumstances, is as to whether the petitioner, Sarvajeet Narayan Jha being an Excise Officer at the rank of the Inspector of Excise of the State Excise Department is protected under Section 197 of the Code of Criminal Procedure for sanction before his Criminal prosecution. 12. Section 197 of the Code of Criminal Procedure speaks: 197. Prosecution of Judges and Public Servants.-(1)(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 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. 13. (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. 13. The Hon'ble Apex Court in Director of Inspection and Audit vs. C.L. Subramanian reported in 1995 SCC (Cri.) 121 observed:- "In order to apply the provisions of Section 197, Cr. RC., it is necessary to fulfil two essential conditions, namely; (1) that the offence must be committed by public servant; and (2) that the public servant employed in connection with the affairs of the Union or a State is not removable from the office save by or with the sanction of the Central Government or the State Government, as the case may be. If the above conditions are fulfilled then further enquiry would be whether the alleged act has been committed by the public servant while acting or purporting to act in discharge of his official duties.” 14. Similarly in Government of India vs. Sukhlal Singareni Collieries Co. Ltd. reported in 1994 Cr.L.J 418(AP), the Hon'ble Apex Court held that when the public servant is not one who is not removable from office save by or with the sanction of either Central Government or State Government, no sanction under section 197 of the Code of Criminal Procedure is required to prosecute him. Now in the present scenario, it is not material to examine as to whether the petitioner alleged to have exceeded or stepped over his limit in course of search and seizure of country liquor from the house of the complainant/opposite party no. 2 rather it is material to examine as to whether the petitioner is a public servant within the definition of Section 21 of the Indian Penal Code. Section 21 of the Indian Penal Code defines, lithe words Public Servant" denote a person falling under any of the descriptions hereinafter following; namely:- . Eighth:-"Every officer of (the Government) whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience." 15. Section 21 of the Indian Penal Code defines, lithe words Public Servant" denote a person falling under any of the descriptions hereinafter following; namely:- . Eighth:-"Every officer of (the Government) whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience." 15. From the cause title of the present petition the designation of the petitioner has been mentioned as Excise Officer, Dhanbad without specifying such designation whereas copy of the complaint petition no. 1186 of 2001 annexed win, the petition discloses that the petitioner is Sub-Inspector of Excise Department, presumed to be working in a department under the Jharkhand State Government. For claiming protection of prior sanction against the criminal prosecution under section 197 of the Code of Criminal Procedure the burden lies upon the petitioner to prove that he is public servant within the meaning of Section 21 of the Indian Penal Code and that he is not to be removed from his office save by or with the sanction of the Government (Govt. of Jharkhand) for want of which the petitioner is not entitled to have protection of sanction against his criminal prosecution. To my knowledge the post of the Sub-Inspector of Excise, even if it is presumed on the basis of the complaint petition since being neither specified in the cause title of the petition nor disclosed at the time of argument, he is non-gazetted officer neither appointed by the cabinet of the State Government nor subject to removed by the said authority of the Government and hence he does not come within the scope of Section 197 of the Code of Criminal Procedure for obtaining sanction for his criminal prosecution. Similarly no relevant document has been produced on behalf of the petitioner in support of his contention otherwise that he is a public servant within the meaning of Section 21 of the Indian Penal Code and is not removable from his office save by or with sanction of the State Government. 16. Now the fact as to whether the act of the petitioner was in excess of his official duty is to be determined by the trial court and it would not be proper at this stage to enter into the domain of the trial court. 16. Now the fact as to whether the act of the petitioner was in excess of his official duty is to be determined by the trial court and it would not be proper at this stage to enter into the domain of the trial court. Hence no order is required to be passed on such fact at this stage which is based upon the evidence adduced and the trial court is at liberty to determine the application of Section 79 of the Indian Penal Code. 17. There being no merit in this petition under section 482 of the Code of Criminal Procedure, it is dismissed. The order passed by the Sub-Divisional Judicial Officer, Dhanbad in C.P. Case No. 1186 of 2001 on 28.3.2003 does not require interference. This petition is dismissed.