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2008 DIGILAW 763 (JHR)

Indramani Roy v. State of Jharkhand

2008-07-18

D.G.R.PATNAIK

body2008
ORDER :- The petitioner in this application has prayed for setting aside the order dated 25-10-2005 passed by the learned Judicial Magistrate, Dhanbad, in the complaint case (CP No. 1341 of 2002), whereby the complaint filed by the petitioner was dismissed on the ground of want of sanction under Section 197, Cr.P.C as well as on the ground that there was no prima facie case made out for any of the offences. 2. The petitioner herein is an employee of the Bharat Coking Coal Limited while opposite parties Nos. 2, 3 and 4 are Inspectors of Police, CBI, Dhanbad. 3. Facts of the case, in brief, is that a case vide CBI, Dhanbad, RC case No. 3 (A) of 2002D was registered for offence under Section 7 of the Prevention of Corruption Act, 1988 on the basis of the complaint made by one Bajrangi Bhuiyan, an employee of the Bharat Coking Coal Limited. The petitioner was cited as an accused in this case. The complainant had alleged that certain allegations were made in the complaint by Bajrangi Bhuiyan accusing the present petitioner who being a Clerk in the colliery under the Bharat Coking Coal Limited, had demanded a bribe of rupees one thousand to extend an extra official work to him for processing his papers to enable him to get his leave regularized to join his duties. The opposite parties 2, 3 and 4 are Inspectors of Police, CBI, Dhanbad. 4. The petitioner filed a complaint petition vide CP No. 1341 of 2002 before the CJM alleging therein that by notice under Section 160, Cr.P.C. the accused opposite party No. 1 served a notice to the petitioner calling him to the office of the Superintendent of Police, CBI, Dhanbad for recording his statement under Section 161, Cr.P.C in the aforesaid RC case No. 3A/of 2002 D. In response to the notice, the petitioner appeared before the officials of the CBI on 8-10-2002 in the morning at 10.00 a.m. He was detained at the office till 6.00 p.m. and throughout the day he answered several questions put to him by the opposite parties. The petitioner has alleged that opposite parties 2 to 4 had tried to compel him to admit his guilt in the aforesaid case, but on his refusal to yield, the opposite parties Nos. The petitioner has alleged that opposite parties 2 to 4 had tried to compel him to admit his guilt in the aforesaid case, but on his refusal to yield, the opposite parties Nos. 2 to 4 started harassing him not only by detaining him at their office without offering him a cup of tea or even a glass of water and by issuing threats that they would implicate him in false cases. On the next day, he filed an information before the CJM Dhanbad under Section 39 of the Code of Criminal procedure, followed by another informatory petition on 10-10-2002, and in both the petitions, he narrated the purported ordeal he had faced at the hands of the accused persons in course of his detention at the police station from 10 a.m. to 6 p.m. The complainant further alleged that in his absence from his house in the afternoon of 16-10-2002, the opposite parties 2 to 4 along with some unknown persons came to his house and despite protest of the petitioner's son and uncle, the opposite parties Nos. 2 to 4 entered into his House and served a notice under Section 160, Cr.P.C. upon members of the house With direction that they should ask the petitioner to report at the office of the CBI on 21-10-2002. However, before leaving, they snatched the copy of the notice from the hands of the petitioner's son and while leaving, they issued threats of dire consequences if the complainant failed to turn up at the office on the date as directed. The complainant has alleged that on account of the conduct of the opposite parties Nos. 2 to 4, he has suffered mental agony and hurt. Claiming that the act and the conduct of opposite parties Nos. 2 to 4 constituted offences punishable under Sections 330, 448, 506, 331/511 and Section 34 of the Indian Penal Code, the petitioner in his complaint prayed to the Court for taking cognizance of the offences and for issuance of summons to the opposite parties Nos. 2 to 4 directing them to face trial. 5. The complaint was transferred to the Court of the Judicial Magistrate, Dhanbad for enquiry and disposal. Enquiry under Section 202, Cr.P.C. was conducted by the Magistrate in course of which statements of the complainant/petitioner as well as three of his witnesses were recorded on solemn affirmation. 2 to 4 directing them to face trial. 5. The complaint was transferred to the Court of the Judicial Magistrate, Dhanbad for enquiry and disposal. Enquiry under Section 202, Cr.P.C. was conducted by the Magistrate in course of which statements of the complainant/petitioner as well as three of his witnesses were recorded on solemn affirmation. On going through the evidence of the complainant and his witnesses, the trial Court held that the allegations and the evidence adduced indicate that the complainant was an accused in the aforesaid RC case and the opposite parties Nos. 2 to 4 being Inspectors of Police, CBI were entrusted with the enquiry and investigation of the case in discharge of their official duties and as such, they could not be prosecuted without prior sanction for prosecution under the provisions of Section 197 of the Code of Criminal Procedure. On the aforesaid finding the learned Court below by the impugned order dismissed the complaint of the petitioner. 6. Assailing the impugned order, learned counsel for the petitioner, Mr. Ranjan Raj, submits that the impugned order is bad on account of the fact that it was passed without application of judicial mind and without considering the fact that the averments made in the complaint petition of the petitioner constitute such offences which could not be considered to be in part of the official duty of opposite parties Nos. 2 to 4. Learned counsel argues that in a case under Section 202, Cr.P.C the duty of the Magistrate is to see only whether the statement of the complainant and witnesses on oath, make out a prima facie case for proceeding against the accused and not necessarily for conviction of the accused and if prima facie case is made out, process has to be issued. In support of his contention, learned counsel relies on the judgment of the Supreme Court in the case of Balraj Khanna v. Motiram, (1971 SCC (Cr) 647) : ( AIR 1971 SC 1389 ). Learned counsel submits that from the charge sheet submitted by the CBI in the aforesaid RC case No. 3A of 2002D, it would transpire that though on the basis of some information given by the complainant of that case, arrangement was made to trap the petitioner, but it was one P.K. Mishra who was allegedly caught for demanding and accepting bribe and not the petitioner. It was in order to extort a confessional statement from the petitioner that the opposite parties Nos. 2 to 4 called the petitioner to their office and after detaining him from morning to evening, they subjected him to mental and physical harassment. Learned counsel adds that subjecting any person to torture for extorting confession from him, cannot be a part of the official duties of the opposite parties Nos. 2 to 4. Referring to the judgment in the case of Budhi Parkash v. K.C. Sharma, (1981 Cr LJ 993), learned counsel argues that though the question of sanction to prosecute under Section 197, Cr.P.C. can be raised at any stage, it cannot be done before issuance of process as because an accused may not participate in the enquiry under Section 202, Cr.P.C. before issuance of process to him. Learned counsel adds further that the question whether sanction is necessary or not may have to be determined from stage to stage. Learned counsel adds that even otherwise, the connection between the act and official duty should be reasonable one and not merely a fanciful one and the official position should not have been used as a mere cloak to defend the act complained of. In this context, the learned counsel takes support from the case of Sankarankutty Menon v. Deputy Superintendent of Police, (AIR 1961 Ker 260). 7. A counter-affidavit has been filed on behalf of opposite parties Nos. 2 to 4. Sri PPN Roy, Senior Advocate arguing on their behalf submits that the present application filed by the petitioner is totally misconceived and there is no illegality, infirmity or impropriety in the impugned order of the Court below. Learned counsel explains that as admitted by the petitioner, the complaint was filed by one Bajrangi Bhuiyan who had alleged that the petitioner had demanded an illegal gratification from him for extending some extra official work. On receipt of complaint, opposite party No. 4, a Sub-Inspector of Police, CBI was directed by the Superintendent of Police, CBI to verify the complaint. On verification, it was found that the complaint of Bajrangi Bhuiyan was prima facie true. Accordingly, the opposite party No. 4 submitted his verification report to his superior officer in office and thereafter the case was registered by the CBI as RC No. 3A of 2002D against the petitioner. On verification, it was found that the complaint of Bajrangi Bhuiyan was prima facie true. Accordingly, the opposite party No. 4 submitted his verification report to his superior officer in office and thereafter the case was registered by the CBI as RC No. 3A of 2002D against the petitioner. After registration of the case, investigation was entrusted to opposite party No. 2 and a trap was arranged. However, it was found that the petitioner's superior officer namely P.K. Mishra, Personnel Manager, Bastakola Colliery was the person who had called the complainant Bajrangi Bhuiyan to his office though the petitioner Indramani Roy had demanded and accepted illegal gratification from Bajrangi Bhuiyan. The said P.K. Mishra was promptly arrested for demanding and accepting illegal gratification. In course of investigation, the house of the petitioner herein was also searched by the investigating officer under Section 165, Cr.P.C. and on the basis of the evidence collected, charge-sheet for offences under the provisions of the Prevention of Corruption Act was submitted against P.K. Mishra accused and the petitioner Indramani Roy after obtaining sanction from competent authority. Learned counsel explains that the acts alleged by the petitioner in his complaint petition against opposite parties Nos. 2 to 4 are acts essentially in discharge of their official duties and therefore they cannot be prosecuted for any offence without prior sanction under Section 197, Cr.P.C. Learned counsel argues that even if the acts alleged are in excess of their official duty, though in discharge of their functions, the necessity of obtaining prior sanction for prosecution is mandatory. In support of his contention, learned counsel relies on the judgment of the Supreme Court in the case of State of Orissa v. Ganesh Chandra Jew, ( AIR 2004 SC 2179 ) and also the judgment in the case of Rakesh Kumar Mishra v. State of Bihar, (2006 (1) Eastern Cr Cases 216 : (2006 (1) AIR Jhar R 670) (SC)). Reliance has also been placed in the case of Sankaran Moitra v. Sadhna Das, ( AIR 2006 SC 1599 ). 8. It is an admitted case of the petitioner that a case under the provisions of the Prevention of Corruption Act was registered with the CBI on the basis of the complaint filed by one Bajrangi Bhuiyan in which allegation of demand of bribe was made against the petitioner. 8. It is an admitted case of the petitioner that a case under the provisions of the Prevention of Corruption Act was registered with the CBI on the basis of the complaint filed by one Bajrangi Bhuiyan in which allegation of demand of bribe was made against the petitioner. It is also admitted that opposite party No. 2 was entrusted with the investigation of the case and earlier, opposite party No. 4 had been entrusted with the task of verification of the complaint filed by Bajrangi Bhuiyani It is also admitted that a notice under Section 160, Cr.P.C. was issued to the petitioner by the opposite parties requiring his attendance before the opposite parties at the office of the Superintendent of Police, CBI for the purpose of interrogation and that on the specified dates, the petitioner had visited the office of the CBI in response to the notice and he was interrogated on several issues by the opposite parties. It is not the case of the petitioner that he was arrested and his liberty was restrained by the opposite parties Nos. 2 to 4 in connection with the aforesaid case. The allegation that the opposite parties Nos. 2 to 4 had visited the petitioner's house in his absence and had delivered another notice directing his attendance in the office of the CBI are admittedly in connection with the aforesaid case in which he was cited as an accused by the informant. It is manifest from the above facts that the case alleged against opposite parties Nos. 2 to 4 are acts committed by them in discharge of their official duty and they cannot be prevented from discharging their official duties and performing their functions merely because their acts are likely to cause mental hurt and harassment to a person who has been called upon for interrogation in connection with any case. 9. On the aforesaid facts of the case, the learned Court below has considered that for prosecuting opposite parties Nos. 2 to 4 in respect of the offence alleged, prior sanction under the provisions of Section 197, Cr.P.C. for prosecution has to be taken since the acts and conduct alleged against them are acts which have been committed in discharge of their official duties. 10. The main issue therefore is whether the provision of Section 197, Cr.P.C. is applicable to the facts and circumstances of the present case. 10. The main issue therefore is whether the provision of Section 197, Cr.P.C. is applicable to the facts and circumstances of the present case. While dealing with the scope and applicability of the provision of Section 197, Cr.P.C., the Supreme Court in the case of State of Orissa v. Ganesh Chandra Jew, ( AIR 2004 SC 2179 ) (supra) has held as follows : "8. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for any thing done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution." The Apex Court has further observed as follows : "This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. 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 the dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. 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 the dereliction of it. The act must fall within the scope and range of the official duties of the public 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........". 11. It is true that the concept of Section 197, Cr.P.C. does not get immediately attracted on the institution of the complaint case and the question may arise may be answered at any stage of the proceeding. The provision of Section 197, Cr.P.C. prohibits taking of cognizance of offences against public servants unless prior sanction from the competent authority is obtained for their prosecution in respect of the offence allegedly committed by them in discharge of their official duties or in case where the allegations suggest that they had exceeded their authority in discharge of their official duty. Even after cognizance has been taken, if the acts complained of were done in discharge of official duty, then trial may have to be stayed unless sanction is obtained. 12. In the instant case, the acts alleged against the opposite parties Nos. 2 to 4 clearly indicate that they have a reasonable connection with the discharge of their official duties and as rightly observed by the learned Court below, the provision of Section 197, Cr.P.C. at once apply. There is no strict bar under the provision of Section 197, Cr.P.C. that it cannot apply under any circumstance for staying of the criminal proceeding at the preliminary stage. It is in cases where the question as to the applicability of the provision of Section 197, Cr.P.C. involves mixed questions of facts and law, the Court would have to first obtain evidence in order to decide the issue before staying the proceedings. 13. In the present case, evidence of the complainant and his witnesses recorded on solemn affirmation in course of enquiry had raised the question as to whether the provision of Section 197, Cr.P.C. would apply and if so, whether the continuation of the proceedings without sanction would be proper. 13. In the present case, evidence of the complainant and his witnesses recorded on solemn affirmation in course of enquiry had raised the question as to whether the provision of Section 197, Cr.P.C. would apply and if so, whether the continuation of the proceedings without sanction would be proper. The facts stated in the complaint and the evidence of the complainant and witnesses are clear and unambiguous and they do not involve any mixed questions of facts and law. 14. The judgments cited by the learned counsel for the petitioner have been considered by the Supreme Court in the State of Orissa v. Ganesh Chandra Jew, ( AIR 2004 SC 2179 ) (supra) and the principles of law have been adequately laid down by the Supreme Court in the case of Ganesh Chandra Jew (supra). In view of the above discussions, I do not find any merit in this revision application. Accordingly, this application is dismissed. Application dismissed.