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Madhya Pradesh High Court · body

2016 DIGILAW 887 (MP)

Swami Sharan Singh v. Rakesh Tripathi

2016-10-03

J.P.GUPTA

body2016
ORDER : The applicants-accused have filed this application under section 482 of Criminal Procedure Code seeking quashment of criminal proceedings of Sessions Trial No. 12/14 pending before the First Additional Sessions Judge, Amarpatan District Satna. 2. The fact relevant to dispose of this petition are that against the applicants-accused on the basis of the complaint filed by the respondent No. 2, a criminal case under sections 467, 468 and 471 of Indian Penal Code have been registered and after necessary formalities, it was committed to the court of Sessions arid at present it is pending as Sessions Trial No. 12/2014 before the First Additional Sessions Judge, Satna. 3. The allegations against the applicants are that the applicant No. 1 is the Sarpanch of Gram Panchayat, Joba Police Station Ramnagar and applicant No. 2, is the Secretary of the Gram Panchayat and they have prepared forged job cards in the fake names and received money under the Scheme of National Rural Employment Guarantee and dishonestly misappropriated the money hence, committed the offence of cheating, forgery and breach of trust as public servant and committed offence punishable under the aforesaid sections. 4. On behalf of the applicants before the learned trial Court an application under section 197(1) of Criminal Procedure Code was filed with the objection that the complainant-respondent No.2 has not got the sanction under section 197(1) of Criminal Procedure Code to prosecute the applicants, which is must. In the absence of sanction, the applicants cannot be prosecuted hence, the proceedings be quashed but, the said application has been dismissed by the learned lower Court vide order dated 29-7-2015. The aforesaid order is contrary to law hence, learned lower Court’s order be set aside and the application of the applicants be allowed and proceedings be quashed. 5. On behalf of the respondent No.2, it is contended that in this case provision under section 197(1), Criminal Procedure Code is not attracted as the applicants are not public servant of the category, who are entitled protection under section 197(1), Criminal Procedure Code. Only Judges, Magistrates and other public servant whose services are removed by the State or with the sanction of the State come within the purview of the provisions of section 197(1) of the Criminal Procedure Code. Only Judges, Magistrates and other public servant whose services are removed by the State or with the sanction of the State come within the purview of the provisions of section 197(1) of the Criminal Procedure Code. Apart from it, the nature of offence is not such that can be deemed to be done in discharge of official duty therefore, the petition is liable to the dismissed. 6. Having heard the contentions of the learned counsel for the parties and on perusal of the record, in view of this court the application of the applicants deserves to be dismissed as the protection of provision under section 197(1) of Criminal Procedure Code is not available to the applicants and the offence cannot be said to be done in discharge of official duty by the public servant. 7. The provision of section 197(1) of Criminal Procedure Code reads as under :— “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, or me 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. 8. 8. This Court in the case of Ashok Kumar vs. Balmukund, 2003(5) M.P.L.J. 545 and J. B.Sharma vs. State of M.P., 2007(4) M.P.L.J. 331 have laid down that to attract the provision in Sub-section (1) of section 197 of Criminal Procedure Code, three conditions are pre-supposed. 1] Firstly, the person should be a Public Servant; 2] Secondly, he should not be removable from his office save by or with the sanction of the Government and; 3] The offence should have been committed by him while acting or purporting to act in the discharge of his official duty. All these three conditions should co-exist. In the present case, the applicants are not the public servants appointed by the State Government and to remove them from the post hold by them, the State is not competent nor its sanction is required, therefore, in absence of second condition as mentioned above, the applicants are not entitled to get the benefit of the aforesaid provision. 9. In addition, the Hon’ble Apex Court in the case of Inspector of Police and another vs. Battenapatla Venkata Ratnam and another, (2015) 13 SCC 87 has laid down that the question is whether the alleged offence has been committed by them while acting or purporting to act in discharge of their official duty. The alleged indulgence of the offence in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. Their official duty is not to fabricate records or permit evasion of payment of duty and cause loss of Revenue. 10. In the aforesaid pronouncements of the Hon’ble Apex Court, the alleged offence against the applicants cannot be said to be done in discharge of their official duty therefore, on account of it, in this case, provision of section 197(1) of Criminal Procedure Code is not attracted. 11. Learned counsel for the applicants have placed reliance in the case of State of Haryana and others vs. Ch. 11. Learned counsel for the applicants have placed reliance in the case of State of Haryana and others vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 , wherein it has been held that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party, the High Court may exercise the powers under section 482 of Criminal Procedure Code and may interfere in the proceedings relating to cognizable offence to prevent abuse of process of any Court however, power should be exercised sparingly and that too in the rarest of rare cases. So far as power of this court is concerned, quashing the proceedings of the learned lower Court is not disputed here. The moot question is whether without sanction under section 197(1) of Criminal Procedure Code, applicants can be prosecuted for the offence? 12 Learned counsel for the applicants have placed reliance in the case of Goondla Venkateswarlu vs. State of Andhra Pradesh and another, (2008) 9 SCC 613 , in which in the absence of sanction under section 197(1), prosecution of Sales Tax Official relating to offence under sections 448, 380, 384 and 506 of Indian Penal Code have been quashed. The applicants have also placed reliance on the Hon’ble Apex Court in the case of Anil Kumar and others vs. M. K. Aiyappa and another, 2013 (10) SCC 705 , in which it has been held that the Magistrate has no power under section 156(3) of Criminal Procedure Code to direct the police for investigation relating to the crime in which provision of section 19 of Prevention of Corruption Act is attracted. Learned counsel for the applicants have also placed reliance on the judgment of the Hon’ble Apex Court in the case of N. K. Ganguly vs. Central Bureau of Investigation, New Delhi, (2016) 2 SCC 143 , in which it has been held that in case it is alleged against the accused persons that they have been abusing the official position as a public servant and are unauthorisedly and illegally transferring the property with a view to get or to give undue pecuniary advantage to others, sanction under section 197 of Criminal Procedure Code and under section 19 of Prevention of Corruption Act for prosecution under sections 13(1)(d) and (2) read with section 120-B of Indian Penal Code is must and in absence of such sanction, proceedings relating to taking cognizance is quashed. 13. The facts and circumstances of the aforesaid cases cited by the learned counsel for the applicants are totally different from the facts of the case at hand therefore, on the basis of the aforesaid case laws, it cannot be held that in the present case sanction under section 197(1) of Criminal Procedure Code is must or in absence of it, the order taking cognizance of offence is illegal and the applicants cannot be prosecuted. 14. As discussed earlier, in this case, there is no requirement under section 197(1) of Criminal Procedure Code, looking to the nature of offence, the facts and circumstances of the case and in view of the fact that the applicants are not public servants, who are not removable from their office save by or with the sanction of the Government. 15. In view of the aforesaid discussion, this petition is dismissed accordingly.