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2011 DIGILAW 896 (GAU)

Swarup Kanti Dey v. P. K. Mishra

2011-11-16

SWAPAN CHANDRA DAS

body2011
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This revisional application under Section 397 read with Section 401 of Code of Criminal Procedure is directed against the order dated 16.04.2004 passed by learned Judicial Magistrate, 1st Class, CRL.REV. PET. No. 39 2004 Page 2 of 9 West Tripura, Agartala(Court No. 2), in Case No. C.R.1280 OF 2003. 2. Heard learned Counsel, Mr. P. Roy Barman appearing for the Petitioner. None appeared for the Respondent. 3. The Petitioner filed a criminal complaint before the learned Chief Judicial Magistrate, Agartala, which was registered as C.R. case No. 1280 of 2003, alleging that on 21.03.2003 at about 3.30 PM the accused-Respondent, P.K. Mishra along with 5/6 others went to the shop of the Petitioner and the accused disclosed his identity as Regional Provident Fund Commissioner and wanted to see the registers, balance sheets, etc., maintained in the shop and also to disclose the number of employees and to give in writing their names and addresses. Complainant produced the registers and balance sheets, etc., and also gave the names and addresses of his employees. The accused threatened him that he could send the complainant to the jail for six months and that unless the complainant gives him Rs. 20,000/-(rupees twenty thousand) he will make an inquiry about the dealings of the complainant and the complainant will be in troubles. The companions of the accused-Respondent also threatened the complainant. The complainant reported the matter to the West Agartala P.S. but no action was taken. Thereafter the complainant submitted the written complaint before the court of learned Chief Judicial Magistrate alleging CRL.REV. PET. No. 39 2004 Page 3 of 9 commission of offence punishable under Sections 143/149/447/506 of IPC read with Section 7 of the Prevention of Corruption Act, 1988. 4. It appears, the accused-Respondent, on his appearance before the court of learned Judicial Magistrate, submitted a petition on 15.07.2003 challenging the maintainability of the complaint on the ground that the accused Petitioner was entitled to the protection prescribed under Section 197of Code of Criminal Procedure and that court cannot take cognizance of the offence without previous sanction of the Central Government as the accused-Respondent was in discharge of official duty as a public servant appointed by the Central Government. Learned Magistrate by order dated 16.04.2004 accepted the contention of the accused-Respondent and held that since sanction was not obtained from the appropriate authority the case was not maintainable and accordingly discharged the accused Respondent. 5. Learned Counsel, Mr. P. Roy Barman has submitted that discharge of official duty and demand of bribe are completely distinct act committed by the accused and demand of bribe can in no way be said to be a part of the discharge of the official duty and therefore no sanction was necessary for taking cognizance against the accused Respondent. It is also submitted that law has been settled by Hon'ble Apex Court in catena of CRL.REV. PET. No. 39 2004 Page 4 of 9 decisions and under the facts and circumstances of the case the order passed by learned Magistrate was wrong and liable to be interfered. For ready reference let us reproduce here the relevant part of Section 197 of Code of Criminal Procedure which runs 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 offence employed, in connection with the affairs of the Union, of the Central Government;... 6. Admittedly the accused-Respondent was employed by the Central Government and he was in the discharge of his official duty on the date and time of occurrence while visiting the shop of the complainant-Petitioner. The Hon'ble Apex Court in the case of Manohar Nath Kaul v. State of Jammu & Kashmir reported in AIR 1983 SC 610 has held that Section197 is designed to facilitate an effective and unhampered performance of official duty by public servants by making provision for scrutiny into allegations against them by superior CRL.REV. PET. The Hon'ble Apex Court in the case of Manohar Nath Kaul v. State of Jammu & Kashmir reported in AIR 1983 SC 610 has held that Section197 is designed to facilitate an effective and unhampered performance of official duty by public servants by making provision for scrutiny into allegations against them by superior CRL.REV. PET. No. 39 2004 Page 5 of 9 authorities and prior sanction for prosecution as a condition precedent to the cognizance of cases against them by courts so that protection may be available from frivolous, vexatious or false prosecutions for offences alleged to have been committed by them while acting or purporting to act in the discharge of their official duty. 7. Learned Counsel, Mr. Roy Barman has submitted that the official act of the accused-Respondent was to inspect the records of the complainant-Petitioner and to take appropriate steps according to law regarding such maintenance of records, etc. and about other steps to be taken by the complainant. While inspecting such business establishment of the complainant, the accused-Respondent had no official duty to demand bribe and such demand of bribe was a distinct offence committed by him unconnected with the discharge of his duties. Learned Counsel, referring to the principles laid down by the Hon'ble Apex Court in the case of S.B. Saha and Ors. v. M.S. Kochar, reported in AIR 1979 SC 184, prayed for setting aside the order passed by the learned Magistrate and also prayed for directing the learned Magistrate to proceed with the case and to take evidence before charge and consider the issue thereafter. In paragraphs 18, 19 and 20 of the reported judgment, the Hon'ble Apex Court has held thus: 18. The words "any offence alleged to have been committed by him while acting or CRL.REV. PET. No. 39 2004 Page 6 of 9 purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami J. in Baijnath v. State of Madhya Pradesh AIR 1966 SC 220 at p 222 "it is the quality of the act that is important and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. 19. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. 20. While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically and depends on the facts of each case, one broad test for this purpose first deduced by Varadachariar J. of the Federal Court in Hori Ram v. Emperor, 1939 FCR 159 is generally applied with advantage. After referring with approval to those observations of Varadachariar J., Lord Simonds in H.B. Gill v. The Kind AIR 1948 PC 128 tersely reiterated that the "test may well be whether the public servant, if challenged, can reasonably claim, CRL.REV. PET. No. 39 2004 Page 7 of 9 that what he does, he does in virtue of his office. 8. After referring with approval to those observations of Varadachariar J., Lord Simonds in H.B. Gill v. The Kind AIR 1948 PC 128 tersely reiterated that the "test may well be whether the public servant, if challenged, can reasonably claim, CRL.REV. PET. No. 39 2004 Page 7 of 9 that what he does, he does in virtue of his office. 8. In the case of Manohar Nath Kaul v. State of Jammu & Kashmir, reported in: AIR 1983 SC 610 , the Hon'ble Apex Court has held that where a public servant commits the offence of cheating or abets another so to cheat, the offence committed by him is not one while he is acting or purporting to act in the discharge of his official duty, as such offence has no necessary connection between it and the performance of the duties of a public servant, the official status furnishing only the occasion or opportunity for the commission of the offences. 9. In the case of Shambhoo Nath Misra v. State of U.P. and Ors. reported in : AIR 1997 SC 2102 , the Hon'ble Apex Court in paragraph 4 of the judgment held thus- 4. Section 197(1) postulates that "when any person who is 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 of the appropriate Government/authority". The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of his performance or his official CRL.REV. PET. No. 39 2004 Page 8 of 9 duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of Code of Criminal Procedure Without previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The treat of prosecution demoralizes the honest officer. The requirement of sanction by competent authority of appropriate Government is an assurance and protection to the honest officer who does official duty to further public interest. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The Court to proceed further in the trial or the enquiry, as the case may be, applied its mind and records a finding that the crime and the official duty are not integrally connected. 10. In view of the law settled by the Hon'ble Apex Court and in view of the facts and circumstances alleged in the complaint, in the case in hand, I have no hesitation to arrive at a conclusion that the order passed by the learned Magistrate was mechanical and it was not appropriate for him to discharge the accused-Respondent holding that sanction was necessary for taking cognizance of the offence against the accused Respondent. The allegation made against the accused can in no way be said to be a part of discharge of official duty and, hence, he is not entitled to get protection under Section 197 of Code of Criminal Procedure. However, it is observed that the issue of sanction may remain CRL.REV. PET. No. 39 2004 Page 9 of 9 open to be considered by the Magistrate at any stage of the proceedings. 11. In view of the discussions made above, the impugned order dated 16.04.2004 passed by learned Judicial Magistrate, 1st Class, West Tripura, Agartala (Court No. 2), in Case No. C.R.1280 OF 2003, is set aside. Learned Magistrate is directed to proceed with the case according to law. The issue of sanction shall remain open for consideration by the trial court during inquiry and trial. Send back the Lower Court's Records along with a copy of this order.