Anil Kumar Jharkhadiya vs R.K. Khare @ Pappi Khare

The inherent powers of this court u/s 482 Cr.P.C. are invoked by the accused for quashment of complaint case No. 540/2014 alleging offence

punishable u/s 500 IPC against the petitioner, who at the relevant point of time was Dy. S.P. on the ground that cognizance is taken without first

obtaining sanction to prosecute the petitioner, who was a public servant at the time when offence was alleged to be committed.

1.1. Challenge is further made to the order passed by the revisional court vide Annexure P-1 dated 20.09.2017 in Criminal Revision No. 99/2016

passed by Additional Session Judge, Bijarwar, Distt. Chhatarpur whereby the order of the trial court taking cognizance has been upheld.

Learned counsel for the petitioner / accused by relying upon the decision of the Apex Court in the case of D.T. Virupakshappa Vs. C. Subhash

reported in (2015) 12 SCC 231 and Manorama Tiwari and Ors. Vs. Surendra Nath Rai repoted in (2016) 1 SCC 594 submits that the complaint

alleged that the petitioner â€" Dy.S.P. gave information of the act of respondent being involved in the business of illegal trade of kerosene, in the local

newspaper which published this item as headline thereby causing defamation of the respondent / victim.

2.1 It is submitted by the petitioner / accused that since the act giving rise to the offence was committed during discharge of official duties, the

cognizance of such an offence could not have been taken by the trial court in the absence of sanction for prosecution by the competent authority. It is

submitted that in the present case no sanction was insisted upon by the learned trial judge before taking cognizance and therefore, the entire

prosecution arising out of the complaint was hit by Section 197 Cr.P.C.

Per Contra, learned counsel for the respondent submits that act of disclosing the information about alleged illegal trade of kerosene done by the

complainant was unrelated to discharge of official duties of the petitioner / accused and therefore, the trapping of Sec. 197 Cr.P.C. are not attracted

and thus the complaint and the consequential proceedings are sustainable even without the order of sanction for prosecution.

After hearing learned counsel for the parties, this Court is of the considered view that the present case is worthy of dismissal for the reasons infra :-

(i) Section 197 of the Cr.P.C prescribes statutory bar for the court taking cognizance of offence committed by a person, who is a public servant while

acting or purporting to act in discharge of his official duties . For convenience and ready reference Section 197 Cr.P.C. is reproduced below :-

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.

Explanation â€" For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence

alleged to have been committed under Section 166 A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section

370, Section 375, Section 376, Section 376A, Section 376C, Section 376D or Section 509 of the Indian Penal Code.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or

purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of

the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of

that sub- section will apply as if for the expression"" Central Government"" occurring therein, the expression"" State Government"" were substituted.

(3A) 1 Notwithstanding anything contained in subsection (3), no court shall take cognizance of any offence, alleged to have been committed by any

member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty

during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction

of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State

Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with

the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with

respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution

was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to

take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence

or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the

trial is to be held.

The Apex Court in the case D.T. Virupakshappa and Manorama Tiwari (supra) has held that in cases of police excess alleged during investigation

and death caused due to negligence of Govt. Doctor in Govt. Hospital are acts which are purported to be done by a public servant in discharge of his

official duties. The Apex court has clearly defined the contours of the expression “while acting†or “purporting to act†in discharge of his

official duties to include acts which are apparently part and parcel of the discharge of official duties and also those acts which may ostensibly appear

to be disconnected with the due discharge of his official duties but are related to or arising out of discharge of official duties.

The cases of D.T. Virupakshappa and Manorama Tiwari (supra) relied upon by the petitioner, relate to the cases of negligence by a Govt. Doctor

while treating the patient which resulted into death and police excess during investigation. The case at hand, which is reflected from the complaint vide

Annexure A-4 filed by the respondent is that the complainant claiming himself to be the Manager of District Central Cooperative Agricultural and

Rural Development Bank Ltd. Teh. Ghuwara, Distt. Chhatarpur alleged that his complaint of misdemeanor and misappropriation of funds against

officials in the bank fell on deaf ears. The police too did not take any cognizance of the complaint made by complainant which compelled him to

approach the High Court where SDOP Badamalahra and S.P. Chhatarpur were impleaded as party. The petition was registered as WP No.

1580/2013 and it is alleged that it was only after direction of the High Court in the said petition, the FIR was lodged against one Raghunath Lodhi.

6.1 It is further alleged in the complaint that petitioner who was SDOP at the relevant point of time got enraged by the act of the complainant of filing

petition. It is thereafter alleged in the complaint that on 24.03.2016 when the complainant was going to work at 10:00 am and reached the Ghuwara

bus-stand some persons called him and showed him the news item published in the newspaper regarding illegal trade done by the complainant. Several

persons were reading the news item which was read by the petitioner too. The news item further disclosed that accused / petitioner was the source of

information.

6.2 By this false news item published in the newspaper, it isalleged that the complainant suffered great damage to his reputation. The complainant thus

filed the complaint against the petitioner, Editor and Publisher of the news paper alleging offence punishable u/s 500 IPC. The complainant /

respondent herein was examined along with Sartaj Ali, Ashok Raikwar, Sanjay Kumar Saxena, Kailash Panya and Dilip Agrawal in support of the

complainant. The statement of witnesses recorded in support of the complainant further disclosed that the news paper item revealed that it was the

petitioner who had informed the Editor and Publisher of the newspaper that the tanker seized was unlawfully carrying kerosene belonging to the

complainant who is indulging in illegal trade of kerosene.

From the above, it is evident that the offence of defemation punishable u/s 500 IPC was alleged by the complainant / respondent herein based on

the act of petitioner informing the Editor and publisher of the news paper about the complainant being involved in illegal trade of kerosene.

7.1 The act of informing the newspaper is not in any manner relatable to discharge of official duties. In the considered opinion of this Court, a Dy.

S.P. in discharge of his duties as a police officer is neither required nor expected to inform any newspaper or media personnel about commission of

certain alleged crime which comes to his knowledge. This kind of act of informing the newspaper about any crime can neither be treated to be directly

related to the act of discharge of official duties or to act in purported discharge of official duties.

7.2 No provision has been brought to the notice of this Court which obliges the police personnel to intimate the media persons of any crime committed,

investigated or tried. Thus, there is no manner of doubt that the act of the petitioner alleged in the complaint of intimating the factum of offence of

illegal trade of kerosene whether genuine or false, is not in any manner relatable to the discharge of official duties.

Accordingly, this Court finds no reason to interfere with the impugned order as in the given facts and circumstances, the petitioner does not deserve

any protection u/s 197 Cr.P.C.Consequently, petition stands dismissed.