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2008 DIGILAW 54 (AP)

Buddha Prakash M. Jyothi IAS v. State of A. P.

2008-01-29

G.V.SEETHAPATHY

body2008
ORDER This petition is filed under Section 482 Cr.P .C. seeking to quash further Proceedings against the petitioner-accused in C.C.No. 322 of 2007 on the file of III Additional Chief Metropolitan Magistrate, Vijayawada. 2. Heard the learned Counsel for the Petitioner and 2nd respondent. Perused the records. 3. The 2nd respondent herein filed a complaint against the petitioner before the III Additional Chief Metropolitan Magistrate, Vijayawada alleging offences under Sections 166, 167and5061PC. The averments of the complaint in brief are as follows: The accused is a civil servant, working as SubCollector cum Sub-Divisional Magistrate, Vijayawada. On an application made by the complaint for allotment of proposed titles for running Telugu Weekly, the Registrar of Newspapers for India allotted the title namely 'Samagra Vaartha Vaara Patrika' on 30-12-2003. Pursuant thereto, the complainant filed declaration before the Sub-Divisional Magistrate, Vijayawada on 12-1-2004. 'The accused issued a notice on 22-11-2004 directing the complainant to appear on 27 -11-2004 and without giving an opportunity, the accused cancelled the declaration filed on 12-1-2004 on the ground that the complainant has changed the address of place of printing press. As against the said proceedings, the complainant filed an appeal before the Press and Registration (sic Board) of Books Act 1867. When the appeal was pending, the accused issued a notice on 12-1-2005 directing the complainant to appear on 17-1-2005 and render accounts of all advertisement charges that he has been receiving through various agencies. The complainant filed a writ petition questioning the said notice and the High Cou rt while disposing of the writ petition, suspended the operation of the impugned notice dated 12-1-2005 pending disposal of the appeal before the Press and Registration Appellate Board. The Board directed the appellant to file a fresh declaration and the Sub-Divisional Magistrate to pass appropriate orders for authentication of the declaration and accordingly, complainant filed fresh declaration on 21-2-2005. The accused did not pass appropriate orders. The complainant filed writ petition in W.P.No. 4241 of 2005 seeking a direction to the accused to pass appropriate orders. The failure of the accused to pass appropriate orders for fresh declaration as directed by the Press and Registration Board with a mala fide intention to cause harm to the reputation of the complainant and amounts to disobedience to the directions of law. The accused has therefore committed offences punishable under Sections 166, 167 and 506 IPC. 4. The failure of the accused to pass appropriate orders for fresh declaration as directed by the Press and Registration Board with a mala fide intention to cause harm to the reputation of the complainant and amounts to disobedience to the directions of law. The accused has therefore committed offences punishable under Sections 166, 167 and 506 IPC. 4. Learned Magistrate has taken cognizance of the complaint in C.C.No. 322 of 2007 and issued process against the accused. Questioning the same, present petition is filed by the accused under Section 482 Cr.P.C. 5. The main contention of the learned counsel for the petitioner is that the accused being a public servant is legally obligated to take action against any violation of the Press and Registration of Books Act (for short 'the Act') and the 2nd respondent has admittedly violated the rules of the Act by printing a news paper from a place not declared by him under the Act. He would further contend that the complainant has not obtained sanction under Section 197 Cr.P.C. and hence, the prosecution against the accused a public servant, is not sustainable. 6. Admittedly, the petitioner-accused is a public servant, discharging public functions and duties as Sub-Collector and Sub-Divisional Magistrate at the relevant time. Even as per the averments in the complaint, the accusation against the petitioner-accused is that, he failed to discharge his public duty by not implementing the orders passed by the Board in issuing an order of authentication of fresh declaration filed by the complainant regarding the change of address. The alleged omission on the part of the accused resulting in failure of performance of public duty has therefore direct nexus to the public duties required to be performed by the accused as a public servant. The issuance of order of authentication or failure to issue the said order has a direct bearing over the discharge of official duty by the petitioner as a public servant. Section 197 Cr.P.C. mandates that where any public servant 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 previous sanction of the State Government, when the person at the time of commission of the alleged offence is employed in connection with the affairs of the State. Admittedly the complainant has not sought or obtained sanction form the State Government to prosecute the petitioneraccused forthe alleged offences. 7. In Tokala Sambasiva Rao v. Karla David Raju and another',' this Court held that 'private complaint filed against the public servant in respect of acts having nexus with discharge oftheirofficial duties, without obtaining sanction for prosecution, not maintainable' and the same was reiterated in another decision in 'Po Yagnanarayana V. State of A.P., 8. In 'Rakeshkumar Mishra v. State of Bihar and others'3 the apex Court held as follows: "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 pubic 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 lay 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; 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 and the official duty of the public servant'. 9. 9. The meaning and scope of the expression 'official act or official duty' the Apex Court following the decision in 'B. Saha v. M.S. Kochat' held as follows: "Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. Forinstance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated." It was therefore held in the above decision that if on facts, it is prima facie found that the act or 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 Cr.P.C. cannot be disputed. 10. Theabove principle of law was reiterated by the Supreme Court in 'Sankaran Moitra v. Sadhna Das and another"'. 11. In the present case also the alleged omission on the part of the petitioner-accused to pass an order of authentication in pursuance of the order of the Board certainly has a nexus to the discharge of the official duty and the failure to issue said orders amounts to dereliction of duty. 11. In the present case also the alleged omission on the part of the petitioner-accused to pass an order of authentication in pursuance of the order of the Board certainly has a nexus to the discharge of the official duty and the failure to issue said orders amounts to dereliction of duty. In the light of the principles laid down by the Apex Court in the above decisions sanction for prosecution as required under Section 197 Cr.P.C. is certainly a prerequisite for taking cognizance of the offence. 12. Learned counsel for the 2nd respondent complainant submits that the question of sanction can be relegated for consideration to a later stage at the time of trial. In that connection, he relied on a decision in 'P.K. Pradhan v. State of Sikkim' wherein it was held that 'in orderto 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 reasonable one and neither intended nor pretended nor fanciful, can be examined by the courts during the 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'. In the above case, the accused was claiming that in awarding contract in his capacity as Secretary, Government of Sikkim, he did not abuse his position as a public servant and works were awarded in favour of the contractor at a rate permissible under law and not low rates. These facts are required to be established which can be done at the trial. In the said circumstances, it was held that 'the question of sanction should be left open to decide in the main judgment'. The decision cited by the learned counsel for the 2nd respondent is not applicable to the facts of the present case, where the complaint of the 2nd respondent is that the failure on the part of the petitioner to issue an order of authentication has a direct nexus to the official duty of the petitioner as a public servant. The decision cited by the learned counsel for the 2nd respondent is not applicable to the facts of the present case, where the complaint of the 2nd respondent is that the failure on the part of the petitioner to issue an order of authentication has a direct nexus to the official duty of the petitioner as a public servant. When the complainant seeks prosecution of the accused for his alleged failure to perform the said official duty, sanction for such prosecution is certainly required and in the absence of such sanction, taking cognizance of the complaint is bad in law in view of the mandate of Section 197 Cr.P.C. The petitioner-accused is entitled to succeed in this petition on this ground alone and therefore, it is not required to consider the other question whether or not the petitioneraccused was justified in not issuing the order of authentication for fresh declaration made by the respondent-complainant and whether the same attracts the ingredients of the alleged offences. 13. In the circumstances, it is held that further proceedings against the petitioner accused in C.C.No. 322 of 2007 on the file of III Additional Chief Metropolitan Magistrate, Vijayawada are not sustainable for want of sanction under Section 197 Cr.P.C. and hence, they are liable to be quashed and accordingly, they are quashed. 14. In the result, the criminal petition is allowed. 1. 2006 (2) ALT (Crl.) 383 (A.P.) = 2006 (1) ALD (Crl.) 852. 2. 2007 (2) ALT (Crl.) 474 (A.P.). 3. 2006 (2) AL T (Crl.) 48 (SC).