Chanan Singh vs State of Punjab

Ujagar Singh, J.

This petition has been filed for the quashing of the order dated 2nd March, 1985, vide which a prima facie case was held to be made out from the perusal of the documents by the Judicial magistrate Ist Class, and charges were framed against the petitioners the same day as also FIR No. 26 dated 1st February 1978. The only ground on which the quashing of the order and the FIR is claimed is that the investigating agency applied for obtaining sanction in this case and the Under Secretary (Services) on behalf of the Secretary, Punjab State Electricity Board, opined in this behalf as under :

"It was observed that the irregularities brought in the case were of departmental nature and, therefore, departmental action should be taken against the delinquent officers while charge sheeting them with major punishments. There is no need to pursue the case for prosecution and hence sanction for prosecution was refused."

Another incidental ground taken is that all the three petitioners made applications to the trial court that they should be discharged in the absence of necessary sanction and that the applications have not been decided. This objection can be disposed of on the short ground that the said applications, viz., Annexure P1 and P2 were made on 5th May, 1984 and 21st May, 1984 respectively, and the same will deemed to have been rejected vide order dated 2nd March, 1985, whereby the charges were directed to be framed.

No evidence has been led in the case so far. The case was adjourned for evidence to 20th April, 1985, but the petitioners filed this petition and the same cameupfor hearing on April 15, 1985 when notice of motion was issued for 13th May, 1985, and proceedings were stayed ad interim.

Stay of proceedings has continued during all this period. The history of this petition is that the same was adjourned from time to time, i.e., on 13th May, 1985; November 8, 1985; November 20, 1985 and December 4, 1985, when adjournment was sought at the request of Assit. A.G. Punjab or counsel appearing for the A.G. Punjab. It was only on September 23, 1985, that counsel for the petitioners sought adjournment. Ultimately it was admittedly vide orders dated January 9, 1986. Thereafter it came up for regular hearing today after so many adjournments for one reason or the other.

According to the charges framed, the petitioners in connivance with each other dishonestly induced the Punjab State Electricity Board to pay an amount of Rs. 3,20,028.50 which amount would not have been paid if the petitioners had not prepared false record and acted within the limits of their official duties. Some of this amount was paid for the job which was never done.

The petitioners have not given any explanation for this amount and they are observing complete silence over the matter except that they pleaded that on the allegations of the prosecution this was done in the discharge of their official duties. There is no evidence on the file to prove the plea taken by petitioners. There are numerous authoritative pronouncements of various High Courts and of the Supreme Court of India, and it will suffice to refer to the case reported as Bakshish Singh Brar v. Smt. Gurmej Kaur, 1988(1) Recent Criminal Reports 35 : 1987 (iv) SVLR (Crl.) 8 , a case decided by Hon''ble Supreme Court of India on 12th/28th October, 1987, where the question raised by the petitioner was that "while investigating and performing his duties as a police officer, was it necessary for the petitioner to conduct himself in such manner which would result in such consequences."

It was observed :

"It is necessary to protect the public servants in the discharge of their duty. They must be made immune from being harassed in criminal proceedings and prosecution; that is, the rationale behind sections 196 and 197 of the Criminal Procedure Code but it is equally important to emphasize that rights of the citizens should be protected and no excesses should be permitted. "Encounter death" has become too common. In the facts and circumstances of each case public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties and where the public servant has exceeded his limit."

Ultimately a caution was sounded in the following words :

"It is true that section 196 states that no cognizance can be taken and even after cognizance having been taken, if facts come to light that the acts complained of were done in the discharge of official duties then the trial may have to be stayed unless sanction is obtained but at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence."

In the above case, the learned Additional Session Judge after consideration of the facts and circumstances of the case, relying on the case Pukhraj v. The State of Rajasthan, 1974(1) SCR 559, held that unless cognizance is taken and in the facts and circumstances and the nature of allegations involved in this case are gone into, the question whether the raiding party exceeded its limits or powers while acting in performance of its official duties or not cannot be determined.

The facts of Pukhraj''s case (supra) related to a complaint filed by the complainant against his superior officer in the Postal Department under Sections 323 and 502, Indian Penal Code, alleging that when the appellant went with a certain complaint to the second respondent, the latter kicked him in his abdomen and abused him by saving. "Saale, Gunde, Badmaash ......." From the facts and circumstances of the present case also it has to be determined whether the petitioners can be said to have caused the loss while acting in the discharge of their official duty. For bringing their case within the four corners of section 196 whether it is necessary for the petitioners to prove that they could charge the amount for the job not actually done by them and whether they could accept quotation from a particular person for a rate which was much higher than the market rate, and that too, without calling proper quotations.

In my view there is so far no evidence to show that if the petitioners had acted in the discharge or purported discharge of their official duties there would still have been loss of the said amount to the Punjab State Electricity Board. As and when sufficient evidence is brought on record that the acts alleged to have been done by the petitioners were done in the discharge or purported discharge on their official duties, attention of the trial court can be drawn to that evidence and bar of jurisdiction can be pleaded at that stage.

With the above observations I do not find any merit in this petition and the same is hereby dismissed.

The parties, through their counsel, are directed to appear in the trial Court on 11th January, 1988.