C. Manohar and others vs M. Radhakrishnan

Janarthanam, J.—One M. Radhakrishnan had been dealing in goods on commission basis in his mandy situate at No. 35, Timber Depot Lane, Virudhunagar. On the morning of 31.5.1985, the Commercial Tax Department Personnel, namely, one C. Manoharan, Commercial Tax Officer; S. Kalyanasundram, Inspector, G. Paul, Office Assistant and Govindan, Jeep Driver, it is said, went to the Timber Depot Lane, in their office jeep TDR 810 for surprise inspection, obviously with a view to detect evasion, if any of the legitimate tax due to the Government. At that time, they happened to see unloading of goods in the said Commission Mandy. All of them, it is said went to the said Commission Mandy and after divulging their identity, they enquired the said Radhakrishnan as to whether the goods that had been unloaded were covered by invoices and other proper documents. On the emergence of such a question, the said Radhakrishnan got wild and questioned their propriety of demanding documents for the unloading of goods, when especially they had not performed such a feat in respect of other traders. The Office Assistant at that time appeared to have reminded him that it was none or his business to talk on other traders and if at all, he could confine himself as to the trade activity of his. No sooner he said so than Radhakrishnan went into rage, hurled wild abuses and attempted to beat him by catching hold of his shirt. The Commercial Tax Officer, not remaining passive, actually went to the rescue of the Office Assistant and in such process, he caught hold of the hand of the said Radhakrishnan, who, in turn was stated to have bitten his hand causing bleeding injuries to his middle finger. Thereafter, all of them got into the jeep and the Commercial Tax Officer mandated the jeep driver to proceed to the police station for the purpose of lodging a complaint. The said Radhakrishnan caught hold of the steering wheel of the jeep and prevented them from proceeding further. All of them somehow or other got the clutches and the hold of the steering wheel by the said Radhakrishnan released and went to Virudhunagar Police Station and lodged a complaint before the Station House Officer as against the said Radhakrishnan, which was registered as a case in Crime No. 320/85 for alleged offences under Ss. 341, 353 and 332 IPC of the Indian Penal Code (Act No. XLV of 1860- for short ''IPC'')

The said Radhakrishnan also lodged an information before the very same police alleging that while he was in his house on the morning of the day of the occurrence, he was informed that his servant Selvarajan, stated to be looking after the transaction in the Commission Mandy, had actually been threatened by the personnel belonging to the Commercial Tax Department; that he immediately rushed there; that he was prevented from entering into the Mandy, by those personnel; that C. Manoharan, Commercial Tax Officer demanded Rs. 3,000/- by way of mamool or otherwise, his Commission Mandy would be ransacked by raid and search; that he did not budge an inch for such an issuance of a threat; that he told them that if they wanted to do so, it is their privilege; that on hearing the same, C. Manoharan, Commercial Tax Officer, exclaimed, how dare enough he was to speak like that and so saying, he mandated him to get into the jeep; that he refused to do so; that C. Manoharan, Commercial Tax Officer throttled his neck; that with a view to save himself from perilous consequences, he somehow or other wriggled out of such clutches; that at that time, G. Paul, office assistant snatched Rs. 1,000/- by inserting his hand into his shirt pocket with such force that his shirt got torn; that S. Kalyanasundaram; Inspector beat him with his hands as a consequence of which he got bleeding injury on his lower lip; that thereafter, all of them took him into the jeep by force and left him at Sivakasi By-pass Road and went away and this occurrence was known to his servant Selvaraj and one Lakshmana Thevar. The same was registered as a case in Crime No. 321/85. The information so lodged by him was stated to have been referred as ''mistake of fact'' by not conducting impartial investigation and referred notice was stated to have been served on him on 19.6.1985.

Consequently, he lodged a private complaint on the very same allegations before the Judicial First Class Magistrate, Virudhunagar arraying C. Manoharan, Commercial Tax Officer; S. Kalyanasundaram, Inspector; G. Paul, office assistant and K. Govindan, Jeep Driver, as accused 1 to 4, which was taken on file as C.C. No. 459 of 1985 for alleged offences under Ss.161, 341 and 392 read with 34 of the IPC. The case so taken on file had subsequently been transferred to the file of the Sub Divisional Judicial Magistrate, Sattur and renumbered as C.C. No. 154 of 1986.

In the meantime, the case in Crime No. 320/85 culminated in the filing of a final report u/s 173(2) of the Code of Criminal Procedure, 1973 (for short ''the Code''), which was taken on file as C.C. No. 153 of 1986 on the file of the Sub Divisional Judicial Magistrate, Sattur for alleged offences under Ss. 332, 341 and 353, IPC as against Radhakrishnan.

Accused 1 to 4-personnel belonging to the Commercial Taxes Department, - filed Crl.M.P. No. 2808 of 1986 in C.C. No. 154 of 1986 questioning the taking cognizance of the complaint, without obtaining necessary and requisite sanction as contemplated by the salient provisions u/s 197 of the Code; Section 49 of the Tamil Nadu General Sales-tax Act, 1959 (for short ''TNGST Act'') and u/s 6 of the Prevention of Corruption Act, 1947 (Act II of 1947 - for short ''PC Act'').

Learned Sub Divisional Judicial Magistrate however dismissed the said petition by an order dated 17.12.1986.

Aggrieved by the dismissal, accused 1 to 4 filed Crl.R.P. No. 3 of 1987 on the file of the Court of Session, Ramanathapuram at Madurai, which also merited dismissal leading to the present action u/s 482 of the Code.

Learned Counsel appearing for the Petitioners-accused would, with all vehemence, contend that the approach and finding of the Courts below as respects the sanction required under the provisions of various enactments for taking cognizance of the case is nothing but a bad reflection of law, in the light of the facts and circumstances of the case, causing serious prejudice to the cause of justice, warranting interference at the hands of this Court u/s 482 of the Code.

Learned Counsel appearing on the other side would however contend the other way.

Admittedly, the complaint had been taken cognizance of for alleged offences under Ss.161, 341 and 392 read with 34 IPC.

Section 6 of the PC Act deals with previous sanction necessary for prosecution of certain offences under IPC as well as under the provisions thereof. The said section reads as under:

Previous sanction necessary for prosecution.- (1) No Court shall take cognizance of an offence punishable u/s 161 or S. 164 or S. 165 of the Indian Penal Code (45 of 1860), or under Sub-section (2) or Sub-section (3A) of S. 5 of this Act, alleged to have been committed "by a public servant, except with the previous sanction,

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his Office save by or with the sanction of the State Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatever any doubt arises whether the previous sanction as required under Sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

The said section, as extracted above, may now be analysed. Cl.(a) of Sub-section (1) covers ''public servents'' employed in connection with the affairs of the Union. The prescribed authority for giving prior sanction for such persons would be the Central Government. Clause (b) thereof covers ''public servants'' employed in connection with the affairs of the State. The authority competent to give prior sanction for prosecution of such persons would be the State Government. Cls.(a) and (b) of Sub-section (1) would thus cover the cases of public servants who are employed in connection with the affairs of the Union or State and are not removable from the office save by or with the sanction of the Central Government or the State Government. That is not the end.

The said section goes further in clause(c) of Sub-section (1) to cover the remaining categories of public servants. It states that in the case of any other person, the sanction would be obtained from the authority competent to remove him from his office. The section is thus all embracing bringing within its fold all categories of public servants as defined u/s 21 of the IPC.

The signal importance or significance to be attached to the previous sanction for prosecution, of public servants had been eloquently expressed by their Lordships of the Supreme Court in K. Veeraswami Vs. Union of India (UOI) and Others, in paragraph 28 (at page 693), which read as under:

The public servant cannot be prosecuted for offences specified in the section unless there is prior sanction for prosecution "from the competent authority". It may be of importance to remember that the power to take cognizance of an offence is vested in the court of the competent jurisdiction. Section 6 is primarily concerned to see that prosecution for the specified offences shall not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery and corruption by public servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harass the honest officer. But he cannot refuse to grant sanction if the material collected has made out the commission of the offence alleged against the public servant. Indeed he is duty bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant. When a "public servant" is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as it affects the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and invested in the authority which is competent to remove the pubic servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not.

In the case on hand, there can be no disputes whatever as to the Petitioners-accused 1 to 4 being termed as ''public servants'' falling within S. 21 of the IPC. It is also not in dispute that before ever the case had been taken cognizance of as against them, there was no sanction either from the State Government of Tamil Nadu or the competent appointing authority for their prosecution u/s 161 of the IPC. As already stated, the cognizance had not only been taken u/s 161 of the IPC, but also for the other offences such as under Sections 341 and 392 read with 34 of the IPC.

Mention may also be made at this juncture as to certain statutory provisions adumbrated under the Criminal Law (Amendment) Act, 1952 (Act 46 of 1952-) for short ''CL (A) Act'') empowering cases triable by Special Judges. Cls.(a) and (b) of Sub-section (1) of Section 6 of the said Act enumerate categories of offences triable by a Special Judge and they run as follows:

Power to appoint Special Judges.--(1) The State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely.-

(a) an offence punishable u/s 161, Section 162, Section 163, Section 164, Section 165 or Section 165-A of the Indian Penal Code (Act XLV of 1960) or Section 5 of the Prevention of Corruption Act, 1947 (2 of 1947);

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in cl.(a).

Sub-section(1) of Section 7 thereof prescribes,

''notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act v. of 1898) or be any other law the offences specified in Sub-section (1) of Section 6 shall be triable by Special Judges only.''

Sub-section (3) thereof provides,

when trying any case, a Special Judge may also try any offence, other than an offence specified in Section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.

It is not as if the so-called demanding of the mamool falling u/s 161 of the IPC and the other offences, namely, under Sections 341 and 392 read with 34 of the IPC stated to have been committed by the Petitioners-accused 1 to 4 arose out of different and distinct transaction, but only out of the same transaction in such a way that the various acts attributable to various accused-personnel belonging to the Commercial Taxes Departments are intertwined or interlinked with each other; that the delinking of one from the other for separate trial before different forums, if done, is likely to spell serious prejudice to them. The Special Judge, on the face of Sub-section (3) of Section 7 of the CL(A) Act is empowered to try all offences attributed to all accused, as in the instant case. But on the other hand, it is not legally permissible for learned Magistrate to do so. It is thus clear that taking cognizance of the offence u/s 161 of the IPC stated to have been committed by all accused along with the other offence, namely, under Sections 341 and 392 read with 34 IPC in the same transaction without sanction from the competent authority by learned Magistrate is not at all sustainable in law.

The sanction for prosecution contemplated either u/s 197 of the Code or u/s 49 of the TNGST Act materially differs with the sanction for prosecution as contemplated u/s 6 of the PC Act. Sub-section (1) of Section 197 of the Code, as is relevant for the purpose of this case, 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.

It is thus clear from what has been extracted as above that the benevolence of the said Sub-section is not at all available to a public servant falling under the definition of Section 21 of the IPC. only such of those public servants who are not removable from his office save by or the sanction of the Government alone are entitled to claim the right inhered in their favour. The further thing that is necessary is that the act done by such public servants should have been done or committed by him while acting or purporting to act in the discharge of his official duty. If these two things are satisfied, then sanction for prosecution is a must before ever any public servant is prosecuted for any offence whatever.

In the instant case, accused 1-Commercial Tax Officer alone is appointed by the State Government of Tamil Nadu u/s 28 of the TNGST Act and consequently, he is removable from office by the Government alone. Accused 2 to 4-rest of the personnel belonging to the Commercial Taxes Department are admittedly not appointed by the Government and they are removable from office by their Appointing Authority. As such accused 2 to 4 cannot at all claim any protection u/s 197 of the Code, in the sense of absence of sanction for their prosecution from Government being such a vital flaw throwing the prosecution as launched against them lock, stock and barrel.

So far as accused 1-Commercial Tax Officer is concerned, of course, he could seek the benevolence of protection u/s 197 of the Code provided the act alleged against him had been done or committed while he was acting or purporting to act in the discharge of his official duties.

Section 49 of the TNGST Act engrafts requisite provisions as respects bar of certain proceedings and it runs as under:

Bar of certain proceedings-(1) No suit, prosecution or other proceeding shall lie against any officer or servant of the Government for any act done or purporting to be done under this Act, without the previous sanction of the Government.

(2) No officer or servant of the Government shall be liable in respect of any such act in any civil or criminal proceedings if the act was done in good faith in the course of the execution of duties or the discharge of functions imposed by or under this Act.

So much of flood of light is thrown by S. 49, as extracted above, that protection is affordable to all Government Servants, irrespective of the rank or cadre, in the sense of their being immune from criminal prosecution as well as from civil proceedings for any act done or purporting to be done by them in good faith in the course of the execution of duties or the discharge of functions imposed by or under the said Act, and no suit, prosecution or other proceeding shall lie as against them without the previous sanction of the Government.

The question is as to whether the acts of the Petitioners-accused 1 to 4, on the face of the very averments or allegations in the complaint, could be stated to have been done in good faith in the course of the execution of duties or discharge of functions in their official duties. May be they could have gone there for the avowed purpose of detecting evasion of sales-tax by conduct of search of the business premises of the Respondent-complainant and if in the course of such execution of their duties in good faith and discharge is offered, it is legally permissible for them to use minimum force necessary for the occasion, so as to enable them to perform their lawful functions, without any obstruction whatever and such an act of theirs, if any, resulting in any harm being caused to anyone amounting to certain offences under the Indian Penal Code, such acts cannot at all be termed to be ones as not done in lawful discharge of their duties, inasmuch as such acts are to be construed, in such circumstances, to be done in good faith in the discharge of their official functions, intertwined or forming part of an integral act done in good faith in the lawful discharge of their official duties.

Coming to the question, on the face of the allegations in the instant case, whether the various acts of accused 1 to 4 such as catching hold of the shirt of the complainant and attempting to beat him; throttling of his neck and removing cash of Rs. 1,000/- stated to have been kept by him in his shirt pocket by force, causing injuries, besides preventing him from entering into his shop, could be stated to have been done in good faith in the lawful discharge of their duties in effecting search and consequent seizure, if any, the answer cannot be anyone excepting an emphatic ''no''. Obviously such acts are outside the purview of their lawful duties. So obvious the position it is, in such circumstances, that no sanction either u/s 197 of the Code or u/s 49 of the TNGST Act is necessary for the prosecution of offences alleged as against them under Ss.341 and 392 read with 34 of the IPC.

However in the view that I have taken that since series of acts in the same transaction giving rise to the commission of alleged offences under Ss. 161, 341 and 392 read with 34 of the IPC are intertwined or interlinked with each other; that a Special Judge alone is competent to try all such offences without causing any prejudice to all accused, taking cognizance of all those offences by learned Magistrate, who is not competent to take such cognizance of, cannot at all be stated to be sustainable in law and therefore the prosecution as launched against the petitioners-accused 1 to 4 has to be necessarily quashed. However, it is made clear that it is open to the respondent-complainant to launch a fresh prosecution before a Special Judge after obtaining requisite and necessary sanction according to law.

In the result, the petition is allowed and the prosecution launched as against the petitioners-accused 1 to 4 in C.C. No. 154 of 1986 on the file of the Sub Divisional Judicial Magistrate, Sattur shall stand quashed.