Abdul Hafiz vs Ghulam Mohi-ud-din

G.D. Sharma, J.—Through the medium of this petition made under the provisions of Section 561-A Criminal Procedure Code, quashing of

proceedings initiated by the learned Sub Judge, Judicial Magistrate First Class, Bhaderwah, in Complaint No. 10/ 1989 titled, Ghulam Mohiuddin

v. Abdul Hafiz, for commission of the offences falling under Sections 186/447/504 Ranbir Penal Code, is sought.

The petitioner-accused is a public servant and during the year 1989 was posted as Tehsildar Executive Magistrate First Class, Bhaderwah.

Respondent-complainant at that time was posted as Junior Assistant in the office of Divisional Forest Office, Bhaderwah. This was the period

when the Militancy was raising its head and the District Magistrate vide his wireless message No. NR-795 CR 40, R-226 Dated 12-4-1989

(Annexure-3) had directed all the S.D.M's and Tehsildars including Additional Deputy Commissioner Ramban, within his jurisdiction, to send hi m

the details about the presence or absence of the public servants from their offices during office hours. The petitioner-accused on. 15-4-1989

visited the office of the Divisional Forest Officer Bhaderwah and found respondent-complainant not present in his office. On the same day, he

apprised his superior (Deputy Commissioner, Doda) about the absence of respondent-complainant, who vide his wireless message addressed to

the Divisional Forest Officer Bhaderwah, copy whereof to the complainant-respondent, attached the respondent-complainant in his own office on

the same day.

It appears from letter no. 15-18/Misc dated 18-4-89 (Annexure-5) that the President, Low Paid Employees Federation, Bhaderwah, (Shri

Khairat Hussain), met the petitioner-accused on behalf of respondent-complainant and sought an apology for the unpleasant attitude shown by the

respondent-complainant and had assured that such an incident would not occur in future. On this undertaking the petitioner-accused had requested

the Deputy Commissioner Doda to withdraw the attachment order of the respondent-complainant. On 20-4-1989, the respondent-complainant

filed complaint in the Court of learned Sub Judge, Judicial Magistrate First Class, Bhaderwah, wherein it was alleged that on 15-4-1989, the

petitioner-accused all of a sudden entered his office and came to his room in an enraged condition and after seeing him told the respondent-

complainant that he had gone astray in his mental behaviour and he will set him right and also used abusive language. On these allegations the

learned Magistrate vide his order dated 13-5-1989 issued the process for summoning the petitioner-accused for the commission of offences stated

above.

The proceedings and the abovestated order of the trial Magistrate has been challenged on the grounds that neither the allegations made in the

complaint nor the evidence given by the complainant-respondent and his witness Inayat Ullah, disclose the ingredients of the offences for the

commission of which the process was issued. The learned trial Magistrate should not have taken the cognizance without the sanction for

prosecution against the petitioner-accused, which is required under the provisions of Section 197 of the Code of Criminal Procedure. It is also

pleaded that the petitioner-accused belongs to Ahmadiya Sect of Muslims and local majority population of Bhaderwah on the basis of religious

fundamentalism, were hostile towards him and they had passed resolutions through Anjuman Islamia Bhaderwah. A copy of this resolution dated

9-4-1989 has been placed on the record which shows that the copy thereof was sent even to the Governor of the State and the Chief Minister.

There is also a cutting of the newspaper 'Insaf (Annexure-2) on the file, which shows that these very elements had not liked the posting of

petitioner-accused as Tehsildar, as well as S.H.O. and the Additional S.H.O.

Nemo has appeared for the respondent-complainant despite repeated calls.

Heard learned counsel for the petitioner and perused the record.

The inherent jurisdiction of this Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any

Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings initiated against an accused person must be tried under the

provisions of the Code and this Court is reluctant to interfere with the said proceedings at an interlocutory stage. There are number of cases where

the inherent jurisdiction to quash proceedings can and should be exercised and they are that where it manifestly Appears that there is a legal Bar

against the institution or continuation of the criminal proceedings in respect of the offence alleged and also where the allegations in the F.I.R. or in

the complaint, even if are taken at their face value and accepted in their entirety, do not constitute the offence alleged. In such cases, no question of

appreciating evidence arise and it is a matter merely of looking at the complaint or the F.I.R. to decide whether the offence alleged is disclosed or

not.

Adverting to the facts of the present case, it is found that the petitioner-accused has, prima facie, been found to have committed an offence

falling u/s 186 R.P.C. To constitute an offence falling u/s 186 R.P.C., the following ingredients must be present :-

(i) There must be an obstruction;

(ii) the obstruction must be by the accused;

(iii) the obstruction must be voluntary;

(iv) the obstruction must be of a public servant ;! and

(v) the obstruction must be in discharge of his, i.e., the public servant's public functions.

In the instant case, neither the contents of the complaint nor the accusations made in the statements of the complainant and his witness namely

Inayat Ullah, disclose as to what was the obstruction caused to the complainant, when he was discharging his public functions and what were those

functions.

The petitioner-accused has also been prima facie found to have committed an offence falling u/s 447 R.P.C. and to constitute an offence under

the said Section, it should be shown that the complainant was in exclusive possession of the property which should be his own property and the

trespass should be with intent to commit an offence.

The facts of the case do not disclose what was the intention of the petitioner-accused to commit an offence qua the respondent-complainant. It

is also an admitted fact that the office of the Divisional Forest Officer Bhaderwah was not the private property of the respondent-complainant.

The third offence, which is stated to have been, prima facie, committed by the petitioner-accused is that he had caused intentional insult to the

respondent-complainant with intent to provoke breach of peace.

The facts of the case do not disclose how the respondent-complainant was provoked to cause breach of peace and how he prevented himself

from such provocation. Mere utterance of abusive words by itself do not constitute an offence falling u/s 504 R.P.C. This view was taken by the

Apex Court in the case of B.R. Meena v. Mangal Das Chaman Lal Barot .

I have considered the submission made by Mr. Kotwal and find that they have substance in them, because the allegations made in the

complaint, on their face value, do not constitute any of the offences for which cognizance has been taken and consequently process issued by the

trial Magistrate.

It has also been urged by Mr. Kotwal that the petitioner accused had gone to the office of Divisional Forest Officer Bhaderwah in his official

capacity and while discharging his public functions if any offence was committed by him the sanction for prosecution as envisaged u/s 197 of the

Code of Criminal Procedure, was required.

The facts of the present case disclose that petitioner-accused had not visited the office of The Divisional Forest Officer Bhaderwah in his

private capacity, hut the public documents placed on the record (i.e. Anncxurcs 3,4 & 5) establish that he had gone there in the exercise of his

official functions, the attachment of the respondent-complainant on the same by the Deputy Commissioner, Doda, to his own office, also shows

that respondent-complainant was mis-conducting himself in the discharge of his official duties and the argument of Mr. Kotwal cannot be brushed

aside that either the respondent-complainant was a sympathizer of militancy or an activist.

A hard fact cannot be lost sight of that during 1989,the Militancy was raising its ugly head and many public servants were giving active support

to it. The resolution of the Anjuman Islamia Bhaderwah dt. 9-4-1989 and the newspaper item in the local paper (Annexure 2) show that many

anti-national elements were averse to the posting of the petitioner-accused, who in good faith was discharging his public functions in the National

interest.

The object of Section 197 Cr.P.C. is primarily to guard against vexatious proceedings against public servants. Before such criminal

proceedings arc launched against public servant, it has been considered proper that the well considered opinion of a superior authority is obtained.

The Bur imposed by Section is absolute.

Undoubtedly, the petitioner-accused is a public servant removeable from the office only with the sanction of the State Government and he is

alleged to have committed offences not in his private capacity, but while discharging the public functions. The expression 'acting' or 'purporting to

act in the discharge of his official duly' as is contained in this Section, must be interpreted liberally, otherwise strictly speaking there can be no ease

which can come within the scope of Section 197 of the Criminal Procedure Code.

On the facts and in the circumstances of the case, the present case fell within the purview of Section 197 Cr.P.C., where the sanction for the

prosecution of the petitioner-accused from his superiors was a sine qua non and without this legal formality, the cognizance taken of the complaint

by the trial Magistrate and issuance of the process against the petitioner-accused for the commission of alleged offences, was an illegal exercise.

In this view of the matter, it has been found that it is a fit and proper case, where the prevention' of abuse of the process of the Court is

required to secure the ends of justice.

Accordingly, the petition is accepted and the proceedings initialed in complaint no. 10 of 1989 titled : Ghulam Mohiuddin v. Abdul Hafiz, in

terms of order dated 13-5-1989 by the learned Sub Judge. Judicial Magistrate First Class, Bhaderwah. are quashed.

Office is directed to send back the record immediately to the trial Court.