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2008 DIGILAW 330 (JK)

Muzaffar Ahmad Khan v. Ab. Gani Bhat

2008-09-03

MANSOOR AHMAD MIR

body2008
1. Petitioner has questioned order dated 12-3-2004 passed by Judicial Magistrate (2nd Additional Munsiff), Srinagar in the complaint titled Abdul Gani Bhat Vs. Muzaffar Ahmad Khan. 2. It appears that a complaint came to be filed by the respondent against the petitioner on the ground that he had made some remarks/allegations in a letter which came to be addressed by petitioner-accused in his capacity as Director Colleges, Higher Education Department, and the respondent came to know about the said letter, when challan was presented before the Court of Special Judge, Anti-corruption, Srinagar, as alleged. It is further alleged that the accused-petitioner has used such words/sentences which are defamatory. Complainant has also reproduce the relevant portion of that letter in the complaint at page 4. Cognizance came to be drawn and process issued by the City Magistrate vide order dated 1-10-2001. 3. Petitioner accused appeared and filed petition under section 561-A Cr.P.C. in this Court which came to be dismissed vide order dated 22-7-2002. There-after petitioner filed an application for dismissing the complaint on the ground that sanction was required in terms of section 197 Cr.P.C. or in the alternative, petitioner was entitled to protection under section 198-B Cr.P.C. came to be dismissed vide order dated 12-3-2004, by 1st Class Judicial Magistrate (2nd Additional Munsiff), Srinagar, feeling aggrieved, the petitioner has filed the present petition for quashment of the said order and for dismissing of the complaint. 4. The sole question involved in this petition is whether petition in hand is maintainable? 5. The scope of 561-A Cr. P.C. is very limited and discretion is to be exercised very cautiously, sparingly and in the rarest of rare cases, as held by the apex court in case reported as Reshma Bano Vs. State of UP & ors., 2008 AIR SCW 1998. On this count alone, this petition merits to be dismissed. 6. The second question whether sanction in the given circumstances of the case was required, the answer is in negative. Admittedly the petitioner had made the communication when he was holding the post of Director Colleges, but whether remarks were made by him in the letter against the complainant Abdul Gani Bhat, can be said to have been done while discharging public functions/public duties. Admittedly the petitioner had made the communication when he was holding the post of Director Colleges, but whether remarks were made by him in the letter against the complainant Abdul Gani Bhat, can be said to have been done while discharging public functions/public duties. I am of the view that making defamatory remarks in any communication by any public servant, cannot be said to be falling within the ambit and scope of discharging public duties. 7. Section 197 Cr. P.C. provides that sanction is required when any public servant commits any offence while performing his official duties and the Act is directly or indirectly connected with official duty. There was no need to use the words--- reproduced in the complaint while making communication. It is no where connected with his official position. The matter is clearly covered by a judgment of the apex court titled B.S. Shambhu Vs. T.S. Krishnaswamy, reported in AIR 1983 SC 64. In the said case Munsiff had written a letter to the District Judge and had made certain remarks against an Advocate which were, according to the Advocate, defamatory. A complaint came to be filed against that Magistrate/Munsiff. The question came up for consideration before the trial court, revisional court. High Court and lastly the apex court held that making of adverse / defamatory remarks while making official communication / correspondence cannot be said to be in any way connected with the official duty. It is apt to reproduce relevant portion of the judgment hereunder. "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, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." 8. The apex court has also laid down the tests in star case tilled Matajog Dobey Vs. H.C. Bhari, reported in AIR 1956 SC 44. It is apt to reproduce relevant portion out of para 17 of the judgment here under: ".......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. Nor question of sanction can arise under S. 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. Nor question of sanction can arise under S. 197, unless the act complained of is an offence; the only point to determine 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 we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation." 9. This point of law also came up for consideration in so many cases and the apex court has laid down how and when protection under section 197 Cr. P.C. is to be attracted. 10. The argument of learned counsel for the petitioners that provisions of section 198 Cr. P.C. are attracted is devoid of any force. The mandate of section 198-A Cr. P.C. is not applicable to the instant case, while keeping in view the allegations contained in the complaint. 11. Keeping the facts of the case in view and the law laid down by the apex court, I am of considered view that impugned order is well reasoned and is not in any way abuse of process of law and cannot be made subject matter of petition under section 561-A Cr. P.C. 12. For the foregoing reasons, there is no merit in the petition which merits dismissal. Order accordingly.