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2007 DIGILAW 265 (PAT)

Mohammad Yunus v. State Of Bihar

2007-02-06

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner of this case is a Government official and is holding the post of Enforcement Sub Inspector in the Transport Department, Government of Bihar. On the date in question he was deputed for special vehicle checking drive at Piprakothi in the district of East Champaran, which was being carried out by the Transport Department. His posting is by an official notification in this regard, which has been brought by the petitioner on record as Annexure-2. This is dated 19.6.2003. The petitioner has moved this Court under Sec. 482 of the Code of Criminal Procedure for quashing the entire proceedings in (Piprakothi P.S. Case No. 63/03/G.R. No. 1451/03/T.R. No: 827/06 pending in the Court of Chief Judicial Magistrate, East Champaran at Motihari. He has been charge sheeted under Sec.384 of the Indian Penal Code and cognizance taken against him. Since his application filed under Sec.239 of the Code of Criminal Procedure for discharge was rejected by the learned Chief Judicial Magistrate he had to file the present application challenging the entire criminal proceeding initiated against him. 3. The genesis to the present case is made out in the first information report, which was lodged by one Daya Kant Mishra, an official posted under the Collectorate of East Champaran. He states that the District Magistrate directed him to verify facts after a spot inspection in the background that the petitioner in the garb of exercising his powers for vehicle checking as Mobile Enforcement Sub Inspector was extorting money illegally from various transporters/truck drivers. They resorted to a blockade which in turn created a law and order situation on the main National Highway. The informant visited the place of occurrence where he found large number of trucks parked from various parts of the country leading to a complete jamming of the road against the so called extortion being committed by the petitioner in the garb of checking their papers. Large scale money was being demanded under threat of arrest, seizure and other modes of harassment. The informant was given written complaints by various truck drivers and in the complaints they stated the specific amounts of money which was collected by the petitioner illegally. On prima facie evidence having emerged the informant was directed to lodge a first information report with the Police Station. The informant was given written complaints by various truck drivers and in the complaints they stated the specific amounts of money which was collected by the petitioner illegally. On prima facie evidence having emerged the informant was directed to lodge a first information report with the Police Station. After lodging of case investigations were taken up by Piprakothi Police Station Since there was enough evidence against the petitioner after investigation it was decided that chargesheet ought to be filed. 4. On filing of chargesheet against the petitioner, cognizance was taken against him under Sec.384 of the Indian Penal Code vide order dated 8.5.2006 passed by the Chief Judicial Magistrate, Motihari. On the above development the petitioner filed a discharge petition under Sec.239 of the Code of Criminal Procedure on various grounds. The basic defence being that he was carrying out his job in official capacity and was duly deputed at the place for vehicle checking. The allegations against him are motivated and that next day he had deposited the money which he had collected as fines in the Government Treasury. He also tried to pick holes in the investigation in terms of the evidence which emerged in the case-diary. However, vide order dated 3.11.2006, the learned Chief Judicial Magistrate rejected the petition of the petitioner for discharge as in his opinion there was sufficient material on record to proceed in the matter. The petitioner thereafter invoked the extra ordinary jurisdiction of the High Court under Sec. 482 of the Code of Criminal Procedure. 5. The main thrust of the argument which was made at the Bar by the counsel for the petitioner was that no offence at all was made out against the petitioner and, in that view of the matter, there was no occasion to take cognizance of the offences against him. The second limb of his argument was that since no sanction has been obtained from the competent authority under Sec.197 of the Code of Criminal Procedure, the question of taking cognizance by the Chief Judicial agistrate committed an illegality by taking cognizance against him. 6. The second limb of his argument was that since no sanction has been obtained from the competent authority under Sec.197 of the Code of Criminal Procedure, the question of taking cognizance by the Chief Judicial agistrate committed an illegality by taking cognizance against him. 6. With regard to the first submission this Court observes that a bare perusal of the first information report, which was lodged by a Government official prima facie makes out a case of extoration because it was under threat and coercion that the various truck drivers were made to part with large amount of money illegally. The petitioner was exercising undue authority by virtue of being a Mobile Enforcement Sub Inspector at the relevant place. What emerges from the first information report is not a case where the petitioner could be said to be carrying out his official duty of checking the vehicles and enforcing the law but the allegation is of misuse of powers which was conferred on him. Names of several persons have emerged in the first information report itself, who have stated that they were forced to part with large amount of money illegally by the petitioner acting and purportedly exercising powers as a Mobile Enforcement Sub Inspector. The first information report also states that this collections of money was not in terms of fine of the so called breaches the transporters may have committed but was illegal demand made upon them by the petitioner. In that view of the matter, it cannot be said that no case is made out against the petitioner or that no offence was committed by him. 7. The petitioner tried to take help of the famous judgment of the Supreme Court in the case of State of Haryana vs. Bhajan Lal AIR 1992 SC 604 , but this Court is of the opinion that the case of the petitioner does not fall within any of the exceptions which was laid down by the Supreme Court in that case and the same cannot come to his rescue. Same is the position with regard to the judgment reported in AIR 1988 SC 709 in the case of Madhavrao vs. Sambhajirao. 8. Same is the position with regard to the judgment reported in AIR 1988 SC 709 in the case of Madhavrao vs. Sambhajirao. 8. Coming to the second limb of the argument with regard to non-availability of sanction against the petitioner under Sec.197 of the Code of Criminal Procedure, the petitioner relied on judgments reported in (2004)2 SCC 349 in the case cf State of H.P. vs. M.P. Gupta and (2004)8 SCC 40 in the case of State of Orissa vs. Ganesh Chandra Jew. 9. The question of obtaining sanction under Sec.197 of the Code of Criminal Procedure before taking cognizance of an offence against public servants has been an issue of debate over a long period of time. The object with which Sec.197 of the Code of Criminal Procedure was enacted was to protest an honest civil servant from harassment by vested interest so that they could perform their obligation as a civil servant fearlessly and without any threat, coercion or harassment. The Courts, therefore, in some of its earlier decisions took a strict view of interpretation and held that availability of sanction against the Government servant from the competent authority was a must before a Court could take cognizance of such offence. But over a period of time it was observed that official position was being misused if not abused to commit acts or omissions which necessarily did not fall within the ambit of what is called official duty. In fact large scale cases have come to the notice of the Courts that the protective cover of Sec.197 of the Code of Criminal Procedure had emboldened Government servants to misuse their position and power and indulge in actions or activities which by no stretch of imagination could be called performance of official duty. In a lot of cases clear case of misuse of public office by Government servants have emerged. It was in this background the view of the Courts underwent change. In one of its judgments reported in (2001)6 SCC 704 in the case of P.K. Pradhan vs. State of Sikkim, the Supreme Court went into details of the ambit of Sec.197(1) of the Code of Criminal Procedure, 1973. Speaking for the Bench Hon ble Mr. Justice B.N. Agrawal states in paragraph 5, which is quoted hereinbelow:- "5. In one of its judgments reported in (2001)6 SCC 704 in the case of P.K. Pradhan vs. State of Sikkim, the Supreme Court went into details of the ambit of Sec.197(1) of the Code of Criminal Procedure, 1973. Speaking for the Bench Hon ble Mr. Justice B.N. Agrawal states in paragraph 5, which is quoted hereinbelow:- "5. The legislative mandate engrafted in sub-section (1) of Sec.197 debarring a Court from taking cognizance of an offence except with the 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 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. Different tests have been laid down in decided cases to ascertain the scope and meaning of the relevant words occurring in Sec.197 of the Code: "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under Sec.197, unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a Court has to find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of official duty, though, possibly in excess of the needs and requirements of the situation." 10. The Court further went into the historical background of various decisions right from the time of Privy Council as well as various other judgments rendered by the Supreme Court over a period of time. The Court further went into the historical background of various decisions right from the time of Privy Council as well as various other judgments rendered by the Supreme Court over a period of time. After discussing the entire gamut of law the Court concludes in paragraph 15, as under:- "15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Sec.197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Sec.197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Sec.197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." 11. Thereafter not that the issue came to rest. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial." 11. Thereafter not that the issue came to rest. The issue of sanction again came to be raised before theSupreme Court in the case of Prakash Singh Badal vs. State of Punjab, (2007)1 SCC 1 [: 2007(1) PLJR (SC)291] and in the case of Lalu Prasad vs. State of Bihar, (2007)1 SCC 49 [: 2007(1) PLJR (SC)240]. A Division Bench of the Hon ble Supreme Court had to again go into the question of sanction which was one of the issues raised by the petitioners of these two cases. In the case of Lalu Prasad vs. State of Bihar (supra), the Supreme Court while relying on the case of Shivendra Kumar vs. State of Maharashtra, (2000)9 SCC 303, emphasizes as under:- "The object of Sec. 6 or for that matter Section 97 of the Criminal Procedure Code, which is a pari materia provision, is that there should be no unnecessary harassment of a public servant: the idea is to save the public servant from the harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a criminal complaint against him. The protection is not intended to be an absolute and unqualified immunity against criminal prosecution. In a case where it is seen that a sanction order has been passed by an authority who is competent under the law to represent the State Government, the burden is heavy on the party who challenges the authority of such order to show that the authority competent to pass the order of sanction is somebody else and not the officer who has passed the sanction order in question. (underlined for emphasis) 12. Further in its judgment in the case of Prakash Singh Badal vs. State of Punjab (supra), the Supreme Court in paragraph 20 of the said judgment has observed as under:- "20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servants own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity." 13. After going through the above evolution of law as well as the latest pronouncements on the issue by the Supreme Court, this Court comes to hold that the second contention of the petitioner that the Chief Judicial Magistrate committed error of law by taking cognizance against him without the necessary sanction being available before him from the competent authority is misplaced and also fails. The Supreme Court has held that sanction can be made available at any time after cognizance of the offence is taken, may be even at the time of conclusion of the trial of after conviction but the same cannot come in the way of a Court of competent jurisdiction at the very threshold. 14. In view of the factual and legal position is indicated above, this Court is reluctant to interfere in the matter while exercising its extra-ordinary powers under Sec. 482 of the Code of Criminal Procedure and accordingly the prayer of the petitioner made in the present application cannot be acceded to. 15. This application is accordingly dismissed being devoid of merit.