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2008 DIGILAW 584 (GAU)

A. K. Borah v. Raja Ram Mallah

2008-08-08

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 482, Code of Criminal Procedure, the Petitioner, who is accused in C.R. Case No. 27/2008, presently pending in the Court of the Judicial Magistrate, 1st Class, Margherita, has sought for quashing the entire complaint, which has given rise to the case aforementioned. 2. I have heard Mr. B.K. Bhattacharjee, learned Counsel, appearing on behalf of the accused-petitioner, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 3. There are two grounds, on which the complaint, in question, stands challenged in the present application made under Section 482, Code of Criminal Procedure, namely, (i) the complaint, when read as a whole, does not disclose commission of any offence, and (ii) even if the complaint discloses commission of any offence or offences, prosecution of the accused-petitioner for such offence or offences is barred by the provisions of Section 197 of the Code of Criminal Procedure. 4. Before entering into the merit of the Petitioner's case, it is necessary to point out that the law with regard to the quashing of criminal complaint or FIR is no longer res Integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapoor v. State of Punjab AIR 1960 SC 866 wherein the question, which arose for consideration, was whether a first information report can be quashed under Section 561 of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out; Gajendragadkar, J., speaking for the Court, however, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in complaint or the FIR, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the complaint or the FIR in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the Criminal Court to be issued against the accused. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint or FIR shows that the contends thereof, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint or the FIR, as the case may be, shall be quashed. 5. As a corollary to what has been discussed above, it is also clear that if the contents of a complaint or an FIR constitute offence, such a complaint or FIR cannot be quashed except where the complaint or the FIR is, therefore also, not sustainable in law. 6. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. reported in 1992 Supp (1) SCC 335, observed as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised : (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by Police Officer under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal private grudge." (Emphasis is added) 7. In the case of Bhajanlal (supra), the Apex Court gave a note of caution on the powers of quashing of criminal proceeding in the following words: 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. (Emphasis is added). 8. (Emphasis is added). 8. It is clear from a close reading of the principles laid down in the cases of R.P. Kapoor (supra) and Bhajanlal (supra) that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd arid inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 9. It is, thus, apparent that in a quashing proceeding, it is not, within the ambit of the powers of the High Court, under Section 482, Code of Criminal Procedure, to determine the truth, veracity, correctness or otherwise of the accusations made in the FIR or a complaint. In the case at hand too, therefore, this Court has to proceed on the assumption that the allegations, made in the complaint, are true and, then, determine whether the contents of the complaint, if assumed to be true, disclose commission of any offence under the Indian Penal Code. 10. Bearing in mind what is indicated above, let me, now, consider the question as to what the case of the complainant, as reflected from the complaint, is. The complainant's case, briefly stated, is thus: When the complainant was working with one of his associates, as a mason, at the shop premises of one Moni Kakoti, near India Club, Margherita, the accused-petitioner, who is Chief General Manager, Coal India Ltd., came there and asked the complainant to stop the work or else, threatened to break the veranda of the shop forcibly. When the complainant told the accused that he (the complainant) would call his employer, Moni. Kakoti, because he (the complainant) cannot stop the work without the consent of Moni Kakoti, the accused slapped the complainant on his face and pushed him away by his hands and legs. When the complainant told the accused that he (the complainant) would call his employer, Moni. Kakoti, because he (the complainant) cannot stop the work without the consent of Moni Kakoti, the accused slapped the complainant on his face and pushed him away by his hands and legs. The accused also allegedly rebuked the complainant in slang language and left the place of occurrence with the threat that he would be going to Margherita Police Station and shall put the employer of the complainant and also the complainant behind bar. 11. In the backdrop of the accusations made in the complaint, let me now, turn to Section 350, IPC, which defines 'criminal force'. According to this penal provision, whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force, he will cause injury, fear or annoyance to the person to whom the force is used, is said to use 'criminal force' to that other. Thus, from the definition of 'criminal force', as given in Section 350, IPC, it becomes clear that whoever intentionally uses force to any person without that person's consent intending, by the use of such force, to cause or knowing it to be likely that by use of such force, he will cause, injury, fear or annoyance to the person to whom the force is used, would be said to use 'criminal force'. Illustration (d), appended to Section 350, IPC, reads as under: (d) A intentionally pushes against Z in the street. Here A has by his own bodily power moved his own person so as to bring it into contact with Z. He has, therefore, intentionally used force to Z; and if he has done so without Z's consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z. 12. From the illustration given above, it becomes abundantly clear that when A pushes Z, without Z's consent, with intention to cause injury, fear or annoyance to Z, or knowing it to be likely that he (A) may, thereby, injure, frighten or annoy Z, A would be said to have used 'criminal force' to Z. 13. From the illustration given above, it becomes abundantly clear that when A pushes Z, without Z's consent, with intention to cause injury, fear or annoyance to Z, or knowing it to be likely that he (A) may, thereby, injure, frighten or annoy Z, A would be said to have used 'criminal force' to Z. 13. Similarly, assault, according to Section 351, IPC, means whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he, who makes that gesture or preparation, is about to use 'criminal force' to that person, is said to commit an 'assault'. Thus, whoever makes even a gesture intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he, who makes that gesture or preparation, is about to use 'criminal force' to that person, is said to commit an 'assault'. 14. What, now, needs to be pointed out is that Section 352 punishes both 'assault' as well as use of 'criminal force'. 15. In the present case, when the accused-petitioner, in the light of illustration (d) to Section 350, IPC, had allegedly pushed the complainant away by his own bodily power without the consent of the complainant and intending to injure, frighten or annoy the complainant or knowing it to be likely that he may thereby injure, frighten or annoy the complainant, he (accused-petitioner) would be held to have used 'criminal force' to the complainant. Whether the accused-petitioner had, as a matter of fact, done such acts, as have been attributed to him, are questions, which would be determined at the trial and not in this quashing proceeding. 16. In fact, in the case at hand, the accused-petitioner is alleged to have slapped the complainant on his face. Section 319, IPC defines 'hurt' thus, "Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt". Section 323, IPC punishes the person, who, voluntarily causes 'hurt' except when the 'hurt' is caused on grave and sudden provocation. In the present case, the complaint, when read as a whole, does not disclose that the accused-petitioner had suffered from grave and sudden provocation to cause hurt to the complainant. Section 323, IPC punishes the person, who, voluntarily causes 'hurt' except when the 'hurt' is caused on grave and sudden provocation. In the present case, the complaint, when read as a whole, does not disclose that the accused-petitioner had suffered from grave and sudden provocation to cause hurt to the complainant. In the present case, when the accused-petitioner had allegedly slapped the complainant on his face, he (accused-petitioner) would be treated to have caused bodily pain to the complainant and he (accused-petitioner) would, therefore, be regarded, until shown otherwise at the trial, to have voluntarily caused 'hurt' to the complainant. In such circumstances, the accused-petitioner is prima facie shown to have committed an offence under Section 323, IPC too. 17. Coupled with the above, it is also worth pointing out that under Section 294, IPC, whoever, to the annoyance of others, utter any obscene words in or near any public place, would commit offence under this penal provision. A shop is a public place and since the accused-petitioner is alleged to have uttered slang words at a shop, it prima facie constitutes offence under Section 294. 18. Turning to the question, raised by the accused-petitioner, that his prosecution, in the facts and circumstances of the present case, is not permissible on the account of the fact that his acts or omissions are protected by the provisions of Section 197, Code of Criminal Procedure, let me, now, turn to the scope of Section 197, Code of Criminal Procedure. This section reads as follows: 197. Prosecution of Judges and public servants. This section reads as follows: 197. 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 of fence 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 for the 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 Article356 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 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. 19. From a bare reading of Section 197, Code of Criminal Procedure, it is clear that when a person, Who is or was a Judge or Magistrate or a public servant not removable from his of-ice save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him, no court shall take cognizance of such offence except with the previous sanction of the state Government or the Central Government, as the case may be, if the offence is alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty. 20. 20. In short, if an act, which constitutes an offence, is allegedly done by a public servant, who falls within the category of the public servants mentioned in Section 197, Code of Criminal Procedure, such a public servant cannot be proceeded against and no cognizance of such offence can be taken if the offence has been committed by him without sanction as contemplated in Section 197, Code of Criminal Procedure provided that the act, constituting the offence, is done by him, while acting or purporting to act in the discharge of his official duty. 21. Dealing with the above aspect of the matter, the Apex Court, in P. Aruswami v. State of Madras AIR 1967 SC 776 held that in order to seek and receive protection under Section 197, Code of Criminal Procedure, the public servant, if questioned, shall be able to claim that whatever he did was done by him by virtue of his office and in discharge of his official duties. In short, the act, constituting the offence, must directly or reasonably be connected with the official duty and must have been done in the discharge or purported discharge thereof. Section 197, Code of Criminal Procedure does not extend its 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 the discharge or purported discharge of official duty. 22. While considering the scope of Section 197, Code of Criminal Procedure, it is apposite to recall the law laid down in HHB Gill and Anr. v. The King AIR 1948 PC 128, wherein the Privy Council held, "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty." This view has been approved by the Privy Council in Albert West Meads v. The King AIR 1948 PC 156. 23. 23. From what have been observed above, it is clear that the primary test for determining if an act, which constitutes an offence, is an act, which can be claimed to have been done in the discharge or purported discharge of the duty of a public servant, is that when questioned, the officer must be able to say that whatever has been done by him is in the discharge or purported discharge of his duties. There is subtle, but definite distinction between the expression 'during the discharge of official duties' and 'in discharge of official duty'. An officer may be on duty; but what he might have done may be an offence, which will fall outside his duty. For instance, when a Police Officer, on duty, commits offence of rape, he cannot say that since he was on duty, the act done by him is protected by Section 197, Code of Criminal Procedure. The test, therefore, is that the act, which an accused has allegedly done, must be shown to form part of his duty, though he may have exceeded his powers, while discharging his duties. 24. In Amrik Singh v. The State of PEPSU reported in 1955 (1) SCR 1302 , too, the Apex Court summed up the scope of Section 197 in these words, "The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that could really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution. 25. The acts, which Section 197, Code of Criminal Procedure seeks to protect, are those, which fall within the scope and range of the official duties of the public servant concerned. 25. The acts, which Section 197, Code of Criminal Procedure seeks to protect, are those, which fall within the scope and range of the official duties of the public servant concerned. Thus, the protective umbrella of Section 197, Code of Criminal Procedure extends to only such acts, which fall within the scope and range of a public servant's official duty. In other words, for availing protection under Section 197, Code of Criminal Procedure, the act of the public servant concerned must not only fall within the scope and range of his official duty, but that the offence must be connected with the official duty and not unconnected therewith. The necessary corollary flowing from this limitation is that when an act is prohibited to be done by a public servant in the discharge of official duty, such act of a public servant, though committed during the discharge of his official duty, will not be protected under Section 197, Code of Criminal Procedure. 26. In the present case, the accused-petitioner is, according to the complaint, in question, Chief General Manager, Coal India Ltd., Margherita. Without entering into the question as to whether the accused-petitioner falls within the category of a 'public servant' as mentioned in Section 197, Code of Criminal Procedure, what is, now, required to be determined is as to whether the acts, which the accused-petitioner had allegedly done, can be said to have been done by him, while acting or purporting to act in the discharge of his official duty. In other words, if questioned, whether the present Petitioner, standing in the position of an accused, can say that whatever he had done, he had done by virtue of the duty, which he was performing. In this regard, it is of immense importance to note that it could not be, even faintly, indicated, on behalf of the accused-petitioner, that the accused-petitioner is entitled to, within the scope of his duty, utter obscene words in public place or use criminal force. By no means, rebuking a person, in slang language, or slapping a person on his face, can be said to form a part of the accused-petitioner's official duty or pushing the complainant by force can be said to form a part of the official duty of the accused-petitioner. By no means, rebuking a person, in slang language, or slapping a person on his face, can be said to form a part of the accused-petitioner's official duty or pushing the complainant by force can be said to form a part of the official duty of the accused-petitioner. In fact, to a pointed query made by this Court as to how the accused-petitioner's uttering slang language in a public place or his allegedly slapping of the complainant or his act of pushing away the complainant by use of force can be treated to be acts done by him (accused-petitioner) in the discharge of his official duty or in purported discharge of his official duty, Mr. Bhattacharjee could submit nothing. 27. In Bhagwan Prasad Srivastava v. M.P. Mishra AIR 1970 SC 1661 the accused, a civil surgeon, was alleged to have addressed the complainant in insulting tone and in defamatory language and, on being asked by the accused, the complainant was pushed out by the cook of the hospital. In these facts, the Apex Court held that the act, in question, was not an act done or purported to have been done in discharge of official duty of a public servant. 28. In Pukhraj v. State of Rajasthan and Anr. AIR 1973 SC 2591 , the complainant was a clerk of a Head Post Office and his allegation was that when the complainant was submitting his representation to the Post Master General, the Post Master General had kicked him. The Apex Court held that the act, alleged to have been done by the accused, did not fall within the ambit of the duty of the Post Master General and cannot be regarded to be an act done or purported to have been done by the accused in discharge of the accused-petitioner's official duty. 29. In the light of what have been discussed above, there can be no escape from the conclusion that the acts, which the complainant alleges to have been done by the accused-petitioner, are acts, which, by no means, fall within the expression "acting or purporting to act in the discharge of official duty" of the accused-petitioner. 30. Though Mr. Bhattacharjee has placed reliance on State through the CBI v. B.L. Verma and Anr. 30. Though Mr. Bhattacharjee has placed reliance on State through the CBI v. B.L. Verma and Anr. (1997) 10 SCC 772 , it needs to be noted that B.L. Verma (supra) is a case, where it was not even in dispute that the acts, alleged to have been done by the accused, fell within the scope of his official duties or, at any event, committed in the purported discharge of his official duty as Director of Enforcement. It was in such circumstances that in B.L. Verma (supra), the prosecution for the acts done, as Director of Enforcement, was interfered with on the ground of absence of sanction as required under Section 197, Code of Criminal Procedure. 31. What crystallizes from the above discussion is that the complaint, in question, is not one, which can be said to have disclosed no commission of any offence. This apart, the acts, which are alleged to have been done by the accused-petitioner, do not fall within the ambit of acts done in the discharge of official duty or in the purported discharge of official duty of the accused-petitioner. In no way, therefore, the complaint, in question, can be quashed. 32. Because of what have been discussed and pointed out above, this revision fails and the same shall accordingly stand dismissed. Appeal dismissed.