Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 277 (CHH)

Rajendra Kumar Shrivastava v. Alloish Kujur

2014-07-22

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Feeling aggrieved and dissatisfied with the impugned order dated 13.2.2006 passed by Second Additional Sessions Judge, Rajnandgaon in Criminal Revision No. 32/2004 dismissing the complaint for offences punishable under Sections 454 & 380 read with Section 34 of the Indian Penal Code, instant revision has been filed by sole applicant-Rajendra Kumar Shrivastava challenging the legality, validity and correctness of the said order. Facts in brief for judging the correctness of the impugned order as under:- 1.1 Applicant/complainant was Lecturer (Mathematics) in the Govt. Girls Education premises, Ambagarh Chowki and in the capacity of Lecturer of the said Institution, he was allotted a residential accommodation No. G-7 at said place. Non-applicant No. 1 was the Principal and non-applicant No. 2 was the Clerk of the said Educational Institution duly appointed by the State Government. 1.2 The case of the present applicant/complainant before the trial Magistrate was that he was on leave from 24.06.2003 to 30.6.2003 on account of illness and gone for treatment and when he joined duty on 01.07.2003, he found his allotted accommodation locked by the School Authorities; and on being enquired, it was informed to him that non-applicant Nos. 1 & 2 have taken out all his belongings kept in the allotted accommodation leading to filing of the police complaint, finding no action on the part of the police, the applicant filed complaint under Section 200 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) before the Judicial Magistrate, First Class, Ambagarh Chowki for punishing the non-applicant Nos. 1 and 2 for the offences under Sections 454 and 380/34 of the Indian Penal Code. 1.3 Learned Magistrate took cognizance of the above-stated offences I.P.C. and issued summons to the present non-applicants. Non-applicants, after appearance; filed an application under Section 197 of the Cr.P.C. stating that they are the public servant and the cognizance of said offences could not have been taken without previous sanction of the State Government, as the Government accommodation allotted to the present applicant, was got vacated in discharge of their official duty. 2. The trial Magistrate, by its order dated 7.4.2004, rejected the application holding that the said application is premature and it will be considered after the evidence is recorded. 3. Questioning the order rejecting the application under Section 197, Cr.P.C., non-applicant Nos. 1 & 2 preferred criminal revision No. 32/2004 before the Court of Session. 2. The trial Magistrate, by its order dated 7.4.2004, rejected the application holding that the said application is premature and it will be considered after the evidence is recorded. 3. Questioning the order rejecting the application under Section 197, Cr.P.C., non-applicant Nos. 1 & 2 preferred criminal revision No. 32/2004 before the Court of Session. 4. The Sessions Judge, by its impugned order dated 13.02.2006, allowed the revision and dismissed the complaint holding that the Government accommodation (G-7) allotted to the present applicant, was got vacated by the non-applicants in discharge of their official duty and in absence of valid sanction by the competent authority, cognizance of the offences could not have been taken by the trial Magistrate. Against this order, the present revision under Section 397/401 of the Code of Criminal Procedure has been filed by the applicant/complainant. 5. Mr. B.D. Guru, learned counsel appearing for the applicant/complainant would submit that the learned Sessions Judge has committed manifest legal error in holding that sanction under Section 197, Cr.P.C. was necessary before taking cognizance for the above stated offence, and as such, the order dismissing the complaint deserves to be set aside. 6. Per contra, Shri Varun Sharma, learned counsel appearing for non-applicant Nos. 1 & 2 would submit that the Government accommodation (G-7) was got vacated by the non-applicant Nos. 1 & 2 in performance of their official duty, and as such, the sanction was pre-requisite for taking cognizance of the offences as alleged by the complainant, as they are public servant, duly appointed by the State Government. 7. I have heard learned counsel appearing for the parties and perused the records of both the courts below including order impugned with utmost circumspection. 8. In the instant case, it is not in dispute that the applicant was allotted Government accommodation (G-7) at Ambagarh Chowki as he was duly appointed Lecturer (Mathematics) in the said Education Institution owned by State Government, it is also not in dispute that non-applicant No. 1 was the Principal of that Educational Institution where present applicant was posted as Lecturer (Mathematics) as on 24.06.2003. 9. Further, that the Assistant Commissioner, Tribal Welfare, Rajnandgaon by order dated 19.4.2001 directed the non-applicant No. 1/Principal to cancel the allotment and allot the said Government quarters to the other eligible Government employees. 9. Further, that the Assistant Commissioner, Tribal Welfare, Rajnandgaon by order dated 19.4.2001 directed the non-applicant No. 1/Principal to cancel the allotment and allot the said Government quarters to the other eligible Government employees. Pursuant to which, non-applicant No. 1/Principal constituted a Committee, which on examination found that applicant/complainant, Arvind Singh and Smt. P. Thakur are the Government employees, who are not entitled to continue for Government accommodation as they are not actually residing therein, and the order was passed directing them to vacate the said premises; pursuant to that order, government accommodation (G-7) occupied by applicant/complainant was got vacated on 24.6.2003 and the House hold articles kept by applicant in the Government accommodation, panchnama was prepared in presence of witnesses and the applicant was served with the notice on 25.6.2013 to collect his belongings and the matter was also reported to the higher officials, thereafter, the applicant did not take his household articles and filed a present complaint for the aforesaid offences, in which cognizance was taken by the trial Magistrate. 10. In order to consider the point raised it would be profitable to notice under Section 197 of the Code of Criminal Procedure, which reads as under:-- "Prosecution of Judges and public servants. 10. In order to consider the point raised it would be profitable to notice under Section 197 of the Code of Criminal Procedure, which reads as under:-- "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; (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." 11. A reading of the provisions of Section 197(1) of the Cr.P.C. reveals that there are three mandatory requirements under Section 197(1) of the Code, namely, (a) that the accused is a public servant. (b) that the public servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be (c) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties. 12. In Mohd. (b) that the public servant can be removed from the post by or with the sanction either of the Central or the State Government, as the case may be (c) the act(s) giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his official duties. 12. In Mohd. Iqbal Ahmed v. State of A.P., (1979) 4 SCC 172 : ( AIR 1979 SC 677 ), their Lordships of Supreme Court has held that it is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out constituting an offence and has held as under:-- "...........It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out constituting an offence and the same should be done in two ways; either (i) by producing the original sanction which itself contains the facts constituting the offence and the, grounds of satisfaction, and (ii) by adducing evidence aliunde to show the facts placed before the sanctioning authority and the satisfaction arrived by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio." 13. In General Officer Commanding v. CBI and Anr., ( AIR 2012 SC 1890 ), their Lordship of the Supreme Court has held as under:-- "82. Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him.... 83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio...." 14. 83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio...." 14. Recently, the Supreme Court in case of State of Maharashtra through Central Bureau of Investigation v. Mahesh G. Jain, (2013) 8 SCC 119 : (AIR 2013 SC (Cri) 1466) has held that the order of sanction is a pre-requisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigant, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be hypertechnical approach to test its validity . 15. Extremely recently in Anil Kumar and others v. M.K. Aiyappa and another, (2013) 10 SCC 705 : (AIR 2013 SC (Cri) 2202), their Lordships of Supreme Court has held that the Special Judge/Magistrate cannot refer the matter under Section 156(3) of the Code of Criminal Procedure for investigation against a public servant without a valid sanction order. Para 11 of the report states as under:-- "11. The scope of Section 156(3) Cr.P.C. came up for consideration before this Court in several cases. This Court in Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 , examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200, Cr.P.C.; the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complaint, what weighed with the Magistrate, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3), Cr.P.C.; should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 16. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 16. Thus, following the ratio of law laid down by the Supreme Court in aforestated decisions, turning back to the facts of the case; the non-applicant Nos. 1 & 2 are the public servant and they are not removable from their posts except with the leave of the State Government and since they have got the accommodation in question of the applicant vacated in discharge of their official duty, therefore, the learned Magistrate could not have taken cognizance for the aforesaid offences without prior sanction as required under Section 197 of the Cr.P.C., I do not find any illegality in the order impugned passed by the Sessions Judge warranting interference by this Court under its revisional jurisdiction. Concludingly, the criminal revision is held to be devoid of merit and is, therefore, dismissed. Appeal dismissed.