Research › Search › Judgment

Gujarat High Court · body

2013 DIGILAW 263 (GUJ)

JAYPRAKASH R PANDYA v. STATE OF GUJARAT

2013-05-06

R.D.KOTHARI

body2013
JUDGMENT R.D. KOTHARI, J. 1. The petitioner herein prays to quash FIR bearing C.R. No. I. 369/91 registered with Anand Rural Police Station, which was culminated in Criminal Case No. 6023/1993, which is pending in the Court of learned J.M.F.C. Anand. 2. The petitioner, at the relevant time, was working as Range Forest Officer at Anand. Assistant Conservator of Forests, Sub-Division, Anand has lodged complaint before Anand Rural Police Station against the present petitioner for the offence punishable under Section 409 of the Indian Penal Code, alleging that the petitioner while working as Range Forest Officer at Anand had abused his position and misappropriated an amount of Rs. 3540/. In a fairly detail complaint, in substance, the allegation leveled is that cowdung (manure) used for three different Nurseries, viz. Boriyavi, Adas and Mogar, was shown excess than actually used. 3. Heard learned advocate Mr. Chetan Pandya for the petitioner and learned A.P.P. Ms. Hansa Punani for the State. 4. Mr. Pandya has made two fold submission. Firstly, he submitted that the complaint of the year 1991, if allowed to be proceeded for trial in the year 2013, then it would violate the accused’s right of fair and speedy trial. In this regard, learned advocate for the petitioner has drawn attention of the Court to the decision of the Supreme Court in the cases of Vakil Prasad Singh v. State of Bihar, (2009)3 SCC 355 , and Mahendra Lal Das vs. State of Bihar and others, (2002)1 SCC 149 . The second submission made by Mr. Pandya is that there is no sanction for prosecution as required under Section 197 5. In Vakil Prasad Singh’s case (supra), the accused was facing charge of corruption. The Supreme Court, while quashing the criminal case filed against the accused, has observed that the currency notes were recovered from the accused in the year 1981, and though the accused was caught red handed, charge sheet was filed in 2007. 5.1 In Mahendra Lal Das’s case (supra) also the accused was facing charge of corruption. The Hon’ble Supreme Court, while quashing the prosecution against the accused, has observed that the sanction for prosecution was not granted by the Government despite expiry of over 12 years after registration of F.I.R. 6. In the present case, facts are not in dispute. 5.1 In Mahendra Lal Das’s case (supra) also the accused was facing charge of corruption. The Hon’ble Supreme Court, while quashing the prosecution against the accused, has observed that the sanction for prosecution was not granted by the Government despite expiry of over 12 years after registration of F.I.R. 6. In the present case, facts are not in dispute. The FIR was lodged on 26.9.1991 in connection with the incident alleged to have taken place in 1988. Thus, the FIR itself is lodged almost after three years of the alleged incident and after lodging of the FIR, more than 22 years have lapsed. The decisions in the above referred cases, i.e. Vakil Prasad Singh (Supra) and Mahendra Lal Das (Supra) do support the case of the petitioner. 7. On the point of sanction as required under Section 197 Cr.P.C., Mr. Pandya has drawn attention of the Court to the case of Cr. P.C, and therefore, in the circumstances of the case trial should not be allowed to be proceeded in absence of sanction. Shreekantiah Ramayya Munipalli v. State of Bombay, (1955)1 SCR 1177 . In that case, there were three accused. All were Government servants working in Military Engineering Store. It was the case of the prosecution that some of the goods belonging to the Government was sold by the accused and an amount of Rs. 4000/yielded therefrom, was pocketed by them instead of depositing the same with the Government. In that case, sanction was granted in respect of accused No.1, however, in respect of other accused sanction was not granted. It was held that the trial is vitiated on account of want of sanction as required under section 197 Cr.P.C. In that case, Bose, J. for the Court has held in paras 18, 19 & 20 thus: “18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official’s duty of to commit an offence and never can be. But it s not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. But it s not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is “when 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.” We have therefore first to concentrate on the word “offence”. 19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first that there was an “entrustment” and/or “dominion”; second, that the entrustment and/or dominion was “in his capacity as a public servant”; third, that there was a “disposal” ; and fourth, that that the disposal was “dishonest”. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it. 20. The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the doing of an official act and thus “wilfully suffer” another person to use them dishonestly: Section 405 of the Indian Penal Code. In both cases, the “offeence” in his case would be incomplete without proving the official act.” 8. Mr. Pandya has also drawn attention of the Court to the decision of the Hon’ble Supreme Court in the case of DIRECTOR OF INSPECTION & ADUIT AND OTHERS VERSUS SUBRAMANIAM, 1994 Supp (3) Supreme Court Cases 615. Therein, explaining the scope of Section 197 Cr.P.C., it was held that two conditions must be fulfilled before section 197 is held to be applicable; one is that the offence alleged must have been committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his offence, except with the sanction of the Central of the State Government, as the case may be. It was held in para6 in the abovereferred judgment thus : “6. If the provisions of Sec. 197, Cr. P.C. are examined, it is manifest that two conditions must be fulfilled before they become applicable; one is that the offence mentioned therein must be committed by a public servant and the other is that the public servant employed in connection with the affairs of the Union or a State is not removable from his office save by or with the sanction of the Central Government or the State Government, as the case may be. The object of the section is to provide guard against vexatious proceedings against Judges, Magistrates and public servants and to secure the opinion of superior authority whether it is desirable that there should be a prosecution. If on the date of the complaint itself it is incumbent upon the Court to take cognizance of such offence only when there is a previous sanction then unless the sanction to prosecute is produce the Court cannot take cognizance of the offence. Naturally at that stage, the Court taking cognizance has to examine the acts complained of and see whether the provisions of Sec. 197, Cr. P.C. are attracted. If the above two conditions are satisfied then the further enquiry would be whether the alleged offences have been committed by the public servant while acting or purporting to act in discharge of his official duties. If this requirement also is satisfied then no Court shall take cognizance of such offences except with the previous sanction. For this purpose the allegations made in the complaint are very much relevant to appreciate whether the acts complained of are directly concerned or reasonably connected with official duties so that if questioned the public servant could claim to have done these acts by virtue of his office, that is to say, there must be a reasonable connection between the act and the discharge of official duties. It is in this context that the words "purporting to act in discharge of official duties" assume importance. The public servant can only be said to act or purporting to act in the discharge of his official duties if his act is such as to lie within the scope of his official duties. It is in this context that the words "purporting to act in discharge of official duties" assume importance. The public servant can only be said to act or purporting to act in the discharge of his official duties if his act is such as to lie within the scope of his official duties. In Hori Ram Singh's case, AIR 1939 FC 43, it was observed that "there must be something in the nature of the act complained of that attaches it to the official character of the person doing it." In Matajog Dobey v. H. C. Bhari, (1955) 2 SCR 925 : ( AIR 1956 SC 44 ) it was observed as under (para 19 of AIR) : "There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." Approving these principles this Court in Pukhraj v. State of Rajasthan, (1973) 2 SCC 701 : ( AIR 1973 SC 2591 at p. 2592) this Court observed as under : "The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed" "cloak of office" and "professed exercise of the office" may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty." In State of Maharashtra v. Dr. Budhikota Subharao, (1993) 3 JT (SC) 379 ( at pp. 383 84) this Court held as under : "So far public servants are concerned the cognizance of any offence, by any Court, is barred by S. 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression 'no Court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete." These principles are laid down in many cases and it may not be necessary to refer to all of them. Applying the abovesaid principles to the facts of this case, we find that the counteraffidavit was filed only as a defence to the allegations made in the writ petition particularly in connection with the transfer of the respondent and on what grounds it was made. Applying the abovesaid principles to the facts of this case, we find that the counteraffidavit was filed only as a defence to the allegations made in the writ petition particularly in connection with the transfer of the respondent and on what grounds it was made. The paragraphs as extracted in the complaint would also show that averments therein were made only in respect of the action taken in transferring the respondent. Therefore the said reference with respect to the character and integrity, which according to the complainant/respondent amounted to defamation, cannot in any manner be said to be unconnected or not reasonably connected with the official duties. These statements in the counter affidavit were made by the appellants definitely while acting or at least purporting to act in discharge of the official duties namely filing the same in their defence to the allegations made in the writ petition which they had to do.” 9. Mr. Pandya has further drawn attention of the Court to the case of State of H.P. v. M.P.Gupta, (2004)2 SCC 349 , where in para8 it is held as under: “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 anything 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. 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 of the protection. 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 of 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 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. There cannot be any universal rule to determine wither 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 ever connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.” 10. Mr. Pandya has also drawn the attention of the Court to Sankaran Moitra vs. Sadhna Das and another, (2006)4 SCC 584 . In that case, Police Inspector was a public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.” 10. Mr. Pandya has also drawn the attention of the Court to Sankaran Moitra vs. Sadhna Das and another, (2006)4 SCC 584 . In that case, Police Inspector was a public servant. A complaint was filed against him for the offence under section 302 etc. of IPC. The accused had filed petition under section 482 Cr. P.C to quash the complaint, which was rejected by the High Court. The Supreme Court was pleased to allow the appeal of the accused. 11. Following the principles laid down by the Hon’ble Supreme Court in the above referred cases, the present petition deserves to be allowed, particularly on the second ground, viz. want of sanction as required under section 197 Cr. P.C. It is not in dispute that the petitioner at the relevant time was a public servant. Prima facie, the act complained of is an act committed by the petitioner in discharge of his duties or in the purported discharge of his duties, as elaborated in Shreekantiah Ramayya Munipalli’s case (supra). It is true that committing breach of trust cannot be considered to be duty or part of his public duty. But, the point is different. It is not in dispute that the act complained off is referable and relates to the duty of the petitioner. Very assertion of the complainant is of such nature. The, complaint runs over in ten pages (pages No.13 to 24). Such elaboration in the complaint was uncalled for. All the same, unduly lengthy complaint lodged after a lapse of almost 3 years clearly makes room for submission that sanction under section 197 Cr. P.C is necessary. 12. Learned advocate Mr. Pandya has also drawn the attention of the Court to S.G.NAIN v. UNION OF INDIA, 1995 Supp (4) SCC 552. In that case, the accused was PSI and he was facing prosecution for 14 years for the offence punishable under section 409 IPC. Therein, section as required under section 197 Cr.P.C was not granted. Hence, the Supreme Court had quashed the proceedings initiated against the PSI. 13. Learned advocate Mr. Pandya has also stressed that otherwise also on merits, the petitioner has good case. Therein, section as required under section 197 Cr.P.C was not granted. Hence, the Supreme Court had quashed the proceedings initiated against the PSI. 13. Learned advocate Mr. Pandya has also stressed that otherwise also on merits, the petitioner has good case. It was submitted that even after this long lapse of years, no departmental inquiry in connection with the alleged act is initiated against the petitioner. Further, drawing attention of the Court to the document produced along with the petition at page 57, it was pointed out that factually incorrect assertion is made in the FIR. It was further submitted that witness Rameshbhai Chandubhai Rathod shown in the charge sheet as a prosecution witness has in his statement recorded during the course of investigation made assertion in support of the petitioner. Since the petitioner otherwise succeeds in this petition, further reference and discussion of the merits and demerits of the case is not undertaken. 14. The petition is, therefore, allowed. The complaint lodged before Anand Rural Police Station bearing CR No. I. 369/91, which has culminated in Criminal Case No. 6023/93 pending in the Court of learned J.M.F.C. Anand is hereby quashed and set aside. Rule is made absolute. D.S. Permitted.