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2011 DIGILAW 1516 (CAL)

R. K. Majhi v. Akshay Pant

2011-12-14

PRASENJIT MANDAL

body2011
JUDGMENT: 1. HEARD learned Advocates of both the sides. 2. THIS application is at the instance of the accused and is directed against the order dated October 17, 2011 passed by the learned Judicial Magistrate, First Class-ll, Port Blair in CR. No. 39/487/2011 thereby rejecting the application of the accused dated 15.9.2011. 3. THE complainant/opposite party No.1 herein instituted a complaint case under Sections 499/500/501 of 1PC against the petitioner contending that the letter dated September 24, 2010 written by the petitioner contained defamatory words which lowered down the prestige and status of the complainant. THE learned trial Judge recorded statement of the complainant and the witnesses on solemn affirmation and on the basis of such statements on solemn affirmation, the learned trial Judge took cognizance of the offence and issued summon upon the accused petitioner herein. THEreafter, the accused petitioner herein filed an application dated September 15, 2011 contending inter-alia that the allegation against him was not true and no sanction under Section 197 of the Code of Criminal Procedure was obtained from the competent authority in order to lodge a complaint against him. So the accused person should be discharged from the case. 4. UPON hearing both the sides, the learned trial Judge rejected the said application by the impugned order. 5. BEING aggrieved, this application has been preferred. 6. IN order to appreciate the situation, it will be convenient to record the entire letter dated September 24, 2010 written by the petitioner to the complainant. Accordingly, the said letter is reproduced below:- "F.No./12-164/DSW/VOD/AP/2010/2017 ANDAMAN AND NICOBAR ADMINISTRATION DIRECTORATE OF SOCIAL WELFARE ** Port Blair dated the 24th September, 2010 To Shri. Akshay Pant, R/o South Point, Port Blair. Sub: Violation of Govt. of INdia's decision No. 13 by Director(SW)- reg. Sir, The undersigned is directed to inform that your representation dated 07/06/ 2010 on the subject cited above has carefully been examined and it has been found by the Competent Authority that there is no merit in the complaint filed by you as all the allegations leveled are found to be motivated and baseless. Yours faithfully Sd/- (R.K.Majhi) Superintendent(JH) Copy to:- 1 .The Section Officer, Central Vigilance Commission, New Delhi, Satarkata Bhawan GPO Complex, Block-A INA, New Delhi- 110023 2. The Superintendent of Police, Anti-Corruption Unit, Port Blair 3. Yours faithfully Sd/- (R.K.Majhi) Superintendent(JH) Copy to:- 1 .The Section Officer, Central Vigilance Commission, New Delhi, Satarkata Bhawan GPO Complex, Block-A INA, New Delhi- 110023 2. The Superintendent of Police, Anti-Corruption Unit, Port Blair 3. The Assistant Secretary (Vig), A and N Administration, Port Blair For kind information along with the complaint dated 07/06/2010 received Shri Akshay Pant, which is self explicit. The reply is being sent in anticipation of the complaint likely to be addressed to you on the matter by Shri Akshay Pant who is black mailing, defaming and harassing the deptt / Administration under the shade of RTI Act; which ultimately hinders the functioning of the department by wasting valuable time, energy and manpower meant for public work going into unproductive work, which amounts to anti- government activities. Sd/- Superintendent (JH)." 7. THUS, from the contents of the letter, it reveals that the petitioner had written the letter to the complainant/opposite party No. 1 herein on being directed to inform him on the basis of his representation dated June 07, 2010 on the subject mentioned therein and the fate of the application of the complainant. By the said letter, the petitioner had described his resignation as Superintendent (JH) in his official capacity pursuant to the direction of the competent authority before whom the opposite party No. 1 had sent his representation dated June 07, 2010. 8. THUS, the letter of the petitioner itself clearly indicates that it had been issued by the petitioner in his official capacity, when he had been directed to do so by the competent authority. Under the circumstances, the case clearly comes within the four corners of Section 197 of the Code of Criminal Procedure. In such a situation, the previous sanction is required from the competent authority prior to taking cognizance of the offence against the petitioner herein. In the instance case, there is no indication that before taking cognizance of the offence by the learned trial Judge on June 06, 2011, the complainant had obtained any sanction for prosecution against the petitioner herein for lodging appropriate proceedings against him: The object of obtaining sanction before taking cognizance is to guard against vexations proceedings against any public servant and other persons mentioned in the said section, and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. 9. 9. TO appreciate this situation, the provisions of Section 197(1) is quoted below:- '197.(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 offence 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, or the State Government: [Provided that where the alleged offence was committed by a person referred Jo in clause (b) during he period while proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as it for the expression "State Government" occurring therein, the expression "Central Government" were substituted.]" 10. FROM the above facts and circumstances, it appears that the learned trial Judge did not consider, at all, whether the previous sanction from the appropriate authority was obtained by the complainant at the time of taking cognizance of the offence in respect of the matter of official functions by the accused person. The unnecessary litigation must be avoided and the public servant should be allowed to function diligently and honestly without fear or favour for the interest of public. 11. THEREFORE, the criminal case lodged by the complainant comes within the mischief of Section 197(1) of the Code of Criminal Procedure, 73. The learned trial Judge has failed to notice such fact even though his attention was drawn by the accused person to that effect by his application dated September 15,2011. 12. MR. Rakesh Pal Gobind, learned Counsel for the opposite party has submitted before me that as per materials-on-record, the complainant wrote a confidential letter to the Chief Secretary, AandN Administration, Port Blair. 12. MR. Rakesh Pal Gobind, learned Counsel for the opposite party has submitted before me that as per materials-on-record, the complainant wrote a confidential letter to the Chief Secretary, AandN Administration, Port Blair. The Chief Secretary did not give any reply, but the accused person who had no concern with the said letter gave the reply and as such the matter comes under the defamatory chapter, and so, the accused person herein will be presecuted without complying with the provisions of Section 197 of the Code of Criminal Procedure. This is, I hold, a totally non-acceptable submission and it is not in conformity with the provisions of the Section 197(1) of the Code of Criminal Procedure. The accused person had written the letter on being directed by the competent authority as recorded earlier. So the submission of MR. Gobind in respect of confidential letter is beyond the scope of the consideration. For the purpose of disposal of the matter in dispute, I am concerned whether the case falls within the mischief of Section 197(1) of the Code of Criminal Procedure, 73. 13. DURING argument, Mr. Rakesh Pal Gobind, learned Counsel has submitted that in exercising the jurisdiction under Section 482 of the Code of Criminal Procedure, 73, the power should be exercised sparingly with circumspection and in rare cases to accord patent illegalities and thus, he has relied upon the decisions of Hamid v. Rashid @ Rasheed and Others, reported in 2007 Cr.LR(SC) 617, M.C. Verghese v. T.J. Ponnan and Another, reported in AIR 1970 SC 1876 and Maharashtra State Electricity Distribution Company Ltd. and Another v. Datar Switchgear and Others, reported in 2011 CRI. L.J. 8. With due respect to Mr. Govind, I am of the opinion that none of these decisions will be helpful to his client because the present criminal case comes within four corners of the mischief of the Section 197(1) of the Code of Criminal Procedure, 73. 14. IF the proceeding is allowed to continue, it will be nothing but an abuse of the process of the Court, harassment to public servant so that he may not discharge his duties without fear and favour. Lastly, it will also cause miscarriage of justice if the criminal case proceeds. The learned trial Judge failed to appreciate the implication of Section 197 of the Code of Criminal Procedure, 73 and as such the impugned order cannot be supported. Lastly, it will also cause miscarriage of justice if the criminal case proceeds. The learned trial Judge failed to appreciate the implication of Section 197 of the Code of Criminal Procedure, 73 and as such the impugned order cannot be supported. He has committed gross illegality in passing the impugned order. 15. THE application is, therefore, allowed. THE impugned order is hereby set aside. THE application dated September 15, 2011 filed by the accused petitioner herein stands allowed. 16. THE said criminal case stands dropped on the lack of sanction as required under Section 197(1) of the Code of Criminal Procedure, 73. THE petitioner stands discharged from the case for want of previous sanction under Section 197(1) of the Code of Criminal Procedure, 73. 17. THE accused person/petitioner herein stands released from bail bond at once.