Amar Nath vs The State of Bihar and Indra Shekhar Jha @ Chandrashekhar Jha

I.P. Singh, J.—This is an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short ''the Code''). It is directed against the order dated 18.8.1998 passed by the learned Sessions Judge, Madhubani in Cr. Revision No. 1061 of 1998 filed on behalf of the opposite party No. 2 by which he was pleased to set aside the order dated 25.7.1998 passed Shri V.K. Mishra, Judicial Magistrate, IInd Class, Madhubani in Complaint Case No. 408/97/Tr. No. 669/98.

It appears that the opposite party No. 2 had filed a complaint in the court of Chief Judicial Magistrate, Madhubani, being C.R. Case No. 408/97 against the present Petitioner and two others, namely, Gauri Shankar Singh, District Supply Officer and Shri Ram Kripal Yadav, Marketing Officer. At the relevant time the complainant-opposite party No. 2 was dealing in the sale of gas cylinders and was also running a photostat business. The present Petitioner was the Supply Inspector posted at Madhubani (Town), P.S. Madhubani. On 20.8.1997 the peon of Gauri Shanker Singh, District Supply Officer came with 4 kg. gas cylinder (light) and asked opposite party No. 2 to fill the same to which he refused since he told him that he does not deal with the business of gas filling. After some time the accused persons including the Petitioner came there and as pointed out by the peon of the District Supply Officer they entered into the shop premises of opposite party No. 2. They assaulted him with fists and slaps as also with a hunter. They seized 5 empty gas cylinders and one full gas cylinder and obtained the signature of opposite party No. 2 on the seizure list. The photostat machine of opposite party No. 2 was also damaged as a result of which he sustained a loss of Rs. 2,000/-. Accordingly, he filed a complaint petition against the Supply Officer, Shri Gauri Shanker Singh and Shri Amar Nath (present Petitioner) and one Ram Kripal Yadav. The cognizance of the offence against them was taken by the Judicial Magistrate by his order dated 7.3.1998 under Sections 323, 504, 452, 379 of the Indian Penal Code. The learned Judicial Magistrate also ordered for issuance of summons against them.

All the three accused persons appeared in the court and filed petitions dated 2.6.1998. 26.6.1998 and 10.7.1998 to drop the proceeding against them as the act alleged in the complaint petition was strictly in discharge of their official duty and, therefore, in absence of the sanction order no cognizance against them could be taken. They, accordingly, prayed for their discharge. The learned Judicial Magistrate by his order dated 25.7.1998 held that co-accused Gauri Shanker Singh, the District Supply Officer only was entitled to the protection u/s 197 of the Code as he was a public servant removable from office with the sanction of the Government. So far as the present Petitioner and the third accused were concerned the learned Judicial Magistrate held that though they were not public servants to whom the protection u/s 197 of the Code could be extended, however, since they were acting at the behest of the District Supply Officer and had jointly inspected and raised the shop premises of opposite party No. 2 on 1.8.1997, they were protected at their action had come under the provisions of general exceptions as contained in Section 76 of the Indian Penal Code. The learned Judicial Magistrate, however, refused to drop the criminal proceeding against them but held that the trial could not proceed unless sanction order is received for the prosecution of the Petitioner and others. Accordingly, he adjourned the case to 26.8.1998 by which date opposite party No. 2 was asked to bring sanction order for the prosecution of the Petitioner and two other accused.

Opposite party No. 2 filed a criminal revision against this order being Cr. Revision No. 1061/98 which was heard and disposed of by the learned Sessions Judge, Madhubani by his order dated 18.6.1998. By this order the learned Sessions Judge held that there was no necessity for obtaining any sanction order to prosecute the accused persons since in this case both the parties were alleging certain illegal acts on the part of the other and also since the learned Judicial Magistrate himself admitted and stated in his order that the accused persons (including the present Petitioner) had exceeded their limit of official duty. The learned Sessions Judge, accordingly, set aside the order of the learned Judicial Magistrate by which he had directed the opposite party No. 2 to obtain the sanction order by 26.8.1998.

From this application it further appears that the co-accused Gauri Shanker Singh, the District Supply Officer, Madhubani lodged F.I.R. against opposite party No. 2 alleging therein that he received a credible information on 21.8.1997 that opposite party No. 2 was indulging in black market and was selling and refilling gas (light) cylinder at higher charges. A raiding party was arranged and the District Supply Officer alongwith the present Petitioner and Ram Kripal Yadav, Marketing Officer raided the shop premises of opposite party No. 2. Seeing the raiding party opposite party No. 2 escaped. On enquiry the servant of opposite party No. 2 admitted selling and filling gas cylinders. On search 3 empty gas cylinder and one filled gas cylinder besides five 4 kg. capacity gas cylinder etc. were recovered from the shop premises of opposite party No. 2. Accordingly, the seizure list was prepared and a case u/s 7 of the Essential Commodities Act (in short the Act) was lodged against opposite party No. 2. Also a proceeding for confiscation u/s 6(a) of the E.C. Act was initiated by the District Magistrate, Madhubani with respect to the articles seized from the shop premises of opposite party No. 2.

The learned trial court in his order dated 25.7.98 has taken note of the fact that accused No. 1 named in the complaint petition of opposite party No. 2 hap-pended to the District Supply Officer, Madhubani while accused No. 2 was the Supply Inspector and accused No. 3 was the Marketing Officer. He also took notice of the fact that the District Supply Officer could not be removed from service without the order and sanction of the State Govt, and was as such duly protected u/s 197 of the Code and no cognizance against him could be taken without obtaining the prior sanction for his prosecution from the State Government. He also took notice of the fact about the recovery and illegal sale in back market of the gas cylinders on the basis of which Madhubani (Town) P.S. Case No. 240/97 was started on the information lodged by the District Supply Officer.

It has been further contended that the impugned order passed by the learned Sessions Judge is illegal, unwarranted and not supported by the materials on record. The learned Sessions Judge failed to appreciate that the order dated 25.7.1998 passed by the Magistrate was not a final order and he had only adjourned the case to 26.8.1998 for bringing the sanction order for the prosecution of the accused persons including the Petitioner. This order being not a final order no revision petition against the same was maintainable before the learned Sessions Judge since the same was hit by Section 397 (2) of the Code. In this connection a reference has also been made to the case of Madhu Limaye Vs. The State of Maharashtra, . In this view of the matter it was contended that the learned Sessions Judge had no jurisdiction to entertain the revision petition against the order dated 25.7.1998 passed by the learned Judicial Magistrate since the same was interlocutory and not subject to the revisional jurisdiction of that court. The learned court below bailed to appreciate that prior sanction was necessary before taking cognizance of the offence. The acts alleged against the Petitioner were reasonable and in-separably connected with his official duty and as such he was entitled to the protection of Section 197 of the Code. On these grounds amongst others, it has been contended that the impugned order set aside.

At the time of hearing, the learned Counsel for the Petitioner has seriously contended that since the order dated 25.7.1998 passed by the learned Judicial Magistrate had only directed the complainant opposite party No. 2 to bring the sanction order against the accused within a month of this order, no revision petition against it would lie since the same is only an inter-locutory order and any revision petition against it would be hit by Section 397(2) of the Code. In this connection the learned Counsel has also relied on the case of Madhu Limaye (supra). Since this question has been raised and argued at length on behalf of the learned Counsel for the Petitioner I think it necessary to closely examine this submission.

Section 397 of the Code deals with the revisional powers of the High Court and the Court of session. Its Sub-section (2) runs as follows:

(2) The powers of revision conferred by Sub-section (1) shall not be exercised relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

From this it would appear that there was a total ban on the exercise of the revisional power conferred on the High Court and the court of session by Section 397(1) of the Code with respect to any interlocutory order passed in any appeal, enquiry, trial or other proceedings. This takes us to the consideration of the question as to what is an "interlocutory order". In this connection I will firstly like to refer to the case of Amar Nath and Others Vs. State of Haryana and Another, . In this decision it was held as follows:

The term "interlocutory order" in Section 397(2) has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important right or the liabilities of the parties.

Any order which substantially affects the right of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order because that would be against the very object which formed the basis for insertion of this particular provision in Section 397. (emphasis supplied)

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But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. (Emphasis supplied)

In the above mentioned case the facts were as follows. The F.I.R. was lodged against a number of accused including Appellants before the Hon''ble Supreme Court. The police submitted the charge sheet against the accused excluding the Appellants. The Judicial Magistrate accepted the charge sheet and set the Appellants at liberty. Against this order a revision petition as filed before the Sessions Judge which was dismissed. There after a regular complaint petition was filed also against the Appellants. This complaint Petitioner was dismissed. On revision the learned Sessions Judge ordered for further enquiry. On the strength of this order the learned Magistrate summoned the Appellants. A petition under Sections 482 and 397 of the Code was filed before the High Court against the order summoning the Appellants. This petition was dismissed on the ground that this order was interlocutory against which no revision would lie. The Hon''ble Supreme Court held that the order summoning the accused Appellants was one which was the matter of moment. It further held that compelling the Appellants to face the trial without proper application of mind would not be held to an interlocutory matter, but one which decided a serious question as to the rights of the Appellants to be put on trial. That being the position, a revision against the order was fully competent u/s 397(1) or u/s 482, because the scope of both these sections in a matter of this kind is more or less the same.

10 The decision in the case of Amar Nath (supra) was again examined by a larger Bench of three Hon''ble Judges in the case of Madhu Limaye (supra). In both these cases the leading judgment was N.L Untwalia, J. In the case of Madhu Limaye it was held that ordinarily and generally the expression "interlocutory order" has been understood and taken to mean as a converse of the term ''final order''. But an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. An order rejecting the plea of the accused on a point which when accepted will conclude the particular proceeding will surely not be an interlocutory order within the meaning of Section 397(2) of the Code. On this point this Bench approved the decision of the case of Amar Nath (supra) though on a different point it differed with it but in this case we are not concerned with the question of the scope of Section 482 of the Code. It was further held in this case that there may be an order passed during the course of a proceeding which may not be final in the sense noticed in AIR 1949 1 (Privy Council) , but yet it may not be an interlocutory order pure and simple. Some kinds of order may fall in between the two. By a rule of harmonicas construction, we think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. In this case a revision was filed before the High Court against the order of the Sessions Judge framing the charge. The High Court rejected the same on the ground that the order framing the charge was interlocutory in nature and, therefore, barred u/s 397(2) of the Code. A SLP was filed before the Hon''ble Supreme Court which held as follows. We may, however, indicate that the type of the order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of Section 397(2) of the Code. In our opinion it must be taken to be an order of the type falling in the middle course".

In a recent decision in the case of Rajendra Kumar Sitaram Pande and Etc. Vs. Uttam and Another, it was held that the order of the Magistrate directing issuance of" process to the caused is not an interlocutory order and, therefore, the revisional jurisdiction u/s 397 could be exercised against the same. In this case the Magistrate ordered for the issuance of process to the accused. On revision the learned Session Judge set aside this order of issuing summons. Against this order a petition u/s 482 of the Code was filed before the High Court. The High Court held that since the order of the Magistrate issuing process to the accused was interlocutory order, against it no revision application was maintainable before the Sessions Judge. The Hon''ble Supreme Court set aside order of the Hon''ble High Court and held that the order of the Magistrate directing the issuing of the process to the accused is not an interlocutory order as mentioned above. From the aforesaid three decisions it appears that the law on the subject has clearly been spelt : out and the true and correct meaning of the expression "interlocutory order" has been given.

I will next proceed to discuss the facts of the case and will apply the law as mentioned above to the same. The learned Judicial Magistrate has passed a very lengthy order on 25.7.1998. on the petition filed by the accused persons praying to drop the proceedings against them. From the concluding portion of this order it appears that the learned Magistrate granted one month''s time to the complainant--opposite party No. 2 to obtain and produce the sanction order for the prosecution of the accused persons including present Petitioner. In this order the learned Magistrate went to the extent of cancelling the bail bond executed by accused. From this order it appears that so far as the accused D.S.O. was concerned the leaned Magistrate held that he was entitled to the protection of Section 197 of the Code. So far as the other accused were concerned the learned Magistrate held that though they cannot get the protection of 197(1) of the Code since they were removable from service by the authorities subordinate to the State Government and not by the and with the sanction of the State Government itself.

However, the learned Magistrate relying on the provisions of Section 76 of the Indian Penal Code held that since these accused were acting under the orders of the accused District Supply Officer they were also entitled to the protection of Section 76 of the Indian Penal Code.

In the impugned order the learned Sessions Judge has concluded that there was no necessity for opposite party No. 2 to obtain prior sanction of the State Government to prosecute the accused persons. He accordingly set aside the order dated 25.7.1998 passed by the learned Magistrate. He further held that if during the course of the trial it would appear to the learned Magistrate that prior sanction was necessary for taking cognizance of the case inevitable legal consequences may follow. It is against this order that the present revision application has been filed.

This takes us to the consideration of the protection as provided by Section 197 of the Code. Its Sub-section (1) says that when a 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 discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction of the Central Government or the State Government under whom that person was working. The crucial words in this sub-section are "while acting or purporting to act in discharge of his official duty". This expression has come up for interpretation before the Hon''ble Supreme Court from time to time. In the case of Amrik Singh Vs. The State of Pepsu, it was held that if the acts complained of are so integrally connected with the duties attaching to the office as to be in-separable from them, then sanction u/s 197(1) would be necessary, but if there was no necessary connection between them and for the performance of those duties the official status furnished only the occasion of opportunity for the acts, then no sanction would be required. In the case of K. Satwant Singh Vs. The State of Punjab, it was held that the act complained must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duties. It was further held that the offences alleged cannot be said to be one for which one could claim that he did the act complained of while acting or purporting to act in discharge of his official duty. In the case of P. Arulswami Vs. The State of Madras, . It was held that if the act complained of is entirely un-connected with the official duty no sanction would be needed. It is only when the act complained of is within the scope of the official duty that the protection u/s 197(1) of the Code would be available. In the case of Prabhakar V. Sinari Vs. Shanker Anant Verlekar, it was held that where the act complained of and the official duty were so interrelated that one could postulate reasonably that it was done by the accused in the performance of the official duty though possibly in excess of the needs and requirements of the situation then only the protection of Section 197(1) would be available. It was further held that if the act complained of was directly concerned with his official duty, it could be claimed to have been done by virtue of his office, then the sanction would be necessary and that would be so irrespective of whether it was in fact a proper discharge of his duties or not. In a recent decision in the case of Shambhoo Nath Misra Vs. State of U.P. and others, it was held that if the act alleged is integral to the performance of the public duty the public servant is entitled to the protection of Section 197(1) of the Code. It was further held that if the performance of the public duty was only under colour of public duty, it cannot be camouflaged by the public servant to commit the crime. It was also held in this case that it was not the official duty of the public servant to fabricate the false record and to misappropriate the public funds in furtherance of or in the discharge of his official duties. No such act could be said to be integrally connected with or inseparably inter-linked with the crime committed in course of the same transaction. Under such a situation it was held that it was not necessary in such a case to obtain sanction.

Coming to the facts of the present case it would appear from the complaint petition that all the accused persons came to the shop of opposite party No. 2 and started abusing him. They effected their forceful entry into the shop and assaulted opposite party No. 2 with fists, slaps and hunter. It is further alleged that they also removed 9 empty gas cylinders. They further removed some empty and one filled up gas cylinder from the shop of opposite party No. 2. They also broke open the glass of the photostat machine putting opposite party No. 2 to a loss of Rs. 2,000. These are the allegations made against the present Petitioner and others in the complaint petition. Now from the nature of the allegations made it becomes clear that the acts alleged to have been committed by the accused persons cannot in any way be described as interlinked with the discharge of the official duty of the accused persons. On the other hand, the acts complained of were entirely un-connected with their official duty. It cannot be said under the facts of this case that the acts alleged against the accused persons in-eluding the present Petitioner were integral to the performance of the public duty of the public servant so as to make them entitled to the protection u/s 197(1) of the Code. In view of above even the accused-District Supply Officer was not entitled to the protection of Section 197(1) of the Code since the acts complained of against him could in no way be (sic) or described as integral to the discharge of his official duty. So far as other two accused including the present Petitioner is concerned it is obvious that Section 197 of the Code will not apply inasmuch as they were removable from the service by the Subordinate authorities of the State Government though such authorities may be acting under the State Government. Hence the present Petitioner cannot claim the protection of Section 197(1) of the Code. It has lastly been argued before me that in any view of the matter since two Petitioners were acting in obedience of the order passed by the accused District Supply Officer they were entitled to the protection of Section 76 of the Indian Penal Code. I would like to point out here that any such defence taken by the accused will have to be examined by the trial court and as such I would not like, to express my opinion with respect-to this plea at this stage. However, it is obvious that the protection of Section 76 of the Indian Penal Code is available in course of the trial and it does not bar taking of the cognizance by the Magistrate at the initial stage. Moreover, this protection is available to a person who committing the illegal acts by reason of a mistake of fact and not by reason of mistake of law in good faith, believing himself to be bound by a law. The question whether breaking of the photostat machine or illegal removable of the gas cylinders from the shop of opposite party No. 2 is or is not lawful act, done n good faith, has to be determined by the trial court. At this stage I would simply mention that Section 76 of the Indian Penal Code is no bar to taking of cognizance of the offence against the present Petitioner though during the trial stage any such defence can be taken before the trial court.

From the detailed discussions made above it becomes clear that there is no merit in this application. It is accordingly, dismissed and the impugned order dated 18.8.1998 passed by the learned Sessions Judge, Madhubani, in Criminal Revision No. 1061 of 1998 is hereby confirmed. The learned Judicial Magistrate is directed to proceed with the trial of the case in the light of the observations made above.