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Judgment
S.S. Grewal, J. (Oral)
This petition i.e. Crl. Misc. 4254M of 1989 re : D.S. Jaspal v. R.N. Goyal, at well as Crl. Misc. No. 4256 of 1989 re : D.S. Jaspal v. R.K. Sharma. Crl. Misc. No. 4421M of 1989 re : S.S. Choudhary v. R.K. Sharma, and Cri. Misc. No. 4423M or 1989 re : S.S. Chaudhary v. R.N. Goyal, arise out of almost two similar complaints dated 15.8.1988, one filed by Shri R.N. Goyal. complainant and the second filed by Shri R.K. Sharma complainant, relate to quashment of complaints as well as consequent proceedings taken thereunder, including the summoning order dated 2941989. Since almost similar questions of law and fact are involved, all these petitions shall be disposed of by this judgment.
in brief, facts relevant for the disposal of this petition are that the complainant, in each case moved complaint under Sections 211, 500, 465 read with Section 120B and 34 of the Indian Penal Code against the accused petitioners. According to the allegations made in the complaint, Shri D.S. Jaspal is a direct recruit to the Indian Administrative Service and was working as Managing Director of the Punjab Tourism Development Corporation Ltd. Chandigarh (hereinafter referred to as the Corporation). Both the complainant respondents who are employees of the Corporation were transferred with mala fide intention to take vengeance against them by the said Managing Director, in order to pressurise the complainants to do wrong things in officials matters but they refused to oblige the Managing Director. It was mentioned in the transfer order that the complainant (in each case) shall stand relieved on 5th February, 1988. On that day at about 9 A.M. when the complainant attended the office, he was slapped by Shri S.S. Chaudhari accused (petitioner) who was given charge of the post held by Shri R.N. Goyal complainant. The latter reported the matter to the Governor of Punjab as well as to Station House officer, Police Station, Sector 17, Chandigarh. It was further alleged that in order to cover up the excesses committed by the accused petitioners, in connivance with their other coaccused a false and fabricated First Information Report No. 38 of 1988 under Section 448, 353. 380, 506 read with Section 34 of the Indian Penal Code was registered against the complainant in each case. The Managing Director is also alleged to have made an order dated 5th February, 1988 in the back date i.e. 4th February, 1988 regarding allocation of office cabin to S.S. Chaudhari accusedpetitioner in order to be successful in the evil design of implicating the Complainant in the false case aforesaid First Information Report was subsequently cancelled. As a consequence of proceedings concerning investigation in the aforesaid First Information Report, the reputation of the complainant in each care was lowered in the estimation of their friends/relatives.
The learned counsel for the parties were heard.
On behalf of the Managing Director (petitioner) it was submitted that he being a public servant as envisaged underSection 21 of the Indian Penal Code and in view of the mandatory, provisions of Section 197 read with Section 190 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), no cognizance could be taken by the learned trial Magistrate before deciding the question as to whether sanction of the Government was necessary. before taking such cognizance against the said petitioner on the basis of the said complaints. On behalf of the complainant side, it was mainly submitted that the learned trial Magistrate considered, this aspect of the case in his summoning order which was passed after recording preliminary evidence.
The summoning order dated 29th April, 1989 passed by the learned trial Magistrate was perused. It is quite apparent that even though the contention on behalf of the complainant was noticed by the learned trial court, as to whether it was necessary to get any sanction as provided under Section 197 of the Code, before taking cognizance against the accused i. e. Managing Director, no specific finding was given by the trial Court in this regard. The learned trial Magistrate could take cognizance against the said accusedpetitioner only after deciding the question whether grant of sanction was necessary or not. This aspect of the case goes to the root of the case, and as such, decision by the trial Court was essential for proper exercise of the jurisdiction by the learned trial Magistrate before proceeding in this case, as far as the petitioner is concerned.
The impugned summoning order passed by the learned trial Magistrate without deciding the question of sanction referred to above cannot be legally sustained as far as the accusedpetitioner (Managing Director) is concerned and the same is hereby set aside. The case is sent back to the trail Magistrate for deciding the question of sanction before taking further proceedings in accordance with law and procedure applicable in this case after deciding the question of sanction, or, its implications in case it is held that such sanction was necessary. I am supported in my view by the decision of the apex Court in Thiru V, Thanigachalam v. State of Tamil Nadu, AIR 1976 SC 2300 wherein somewhat similar circumstances after setting aside the impugned trader, !he case was sent back to the trial Court for further proceedings in accordance with law. It is further clarified that nothing herein observed for the disposal of these petitions shall in any manner be construed to affect the rights of the parties on merits. It would also be open to the parties to raise all the relevant pleas available to them including those raised in the present petitions before the trial Court at appropriate stage. All these petitions are accordingly disposed of Copy of this order be sent to the trial Magistrate for strict compliance. Record of the trial Court be sent back forthwith and the complainant party is directed to appear before the trial Court on 1841991