Kamal Saini vs Chandan Kumar

G.D. Sharma, J.—Through the medium of this petition inherent jurisdiction of this Court has been invoked for quashing complaint (No. 53-

A/ 90 Cog. titled Chandan Kumar v. Kamal Saini) the cognizance whereof was taken by the learned Judicial Magistrate 1st Class (Sub Judge)

Samba and process was issued against the petitioner herein to withstand the trial for the commission of offences under Sections 341 and 323 RPC.

In the complaint the respondent had alleged that on 24-4-1990 at about 11 AM, he visited the Police Station, Semba in order to get a

compromise effected between Baldev Raj and others. At that time, the petitioner herein called him inside his room and asked as to why he had

been writing defamatory articles against him in his newspaper. Thereafter, the petitioner used abusive language and dragged him to another room

and gave good thrashing. He also threatened that respondent would be killed. After this incident, the petitioner wrongfully confined the respondent

for about two hours. The respondent lodged report of this incident in the Police Station, upon which he was got medically examined. The complaint

was accompanied by a copy of this report (Report No. 10 entered in the Daily-diary Register on 24-6-1990). The copy of the medical certificate

was also placed on the record. Before taking cognizance of the case the learned Magistrate had called the report of the concerned, SHO who had

reported that respondent herein had entered the police station and after seating himself in a chair started discussion with the petitioner. The

petitioner had inquired from him as to why he was concocting false stories against him and then publishing them in his newspaper. Upon this inquiry

respondent got enraged and made an attempt to attack the petitioner but fell down on the ground and received superficial injuries. The learned

Magistrate examined the respondent and his two witnesses, namely, Mohinder Singh and Narain Singh under the provisions of Section 200 Cr.

P.C. He also considered the accompanying documents viz. (Police report No. 10 of June 24, 1990, copy of the medical certificate as well as the

report of the SHO dated 1-9-1990 and thereafter, issued the process against the petitioner to face the trial for the commission of the offences

stated above.

In this petition, it is alleged that the petitioner came to know about the lodging of the complaint and initiation of the proceedings in the Court of

Sub Judge, Samba after he received a defamatory letter addressed to him by the respondent at his Bhaderwah address. This letter was sent

through registered post and after its receipt complaint in question for the commission of offence of defamation was filed in the Court of Sub Judge,

Judicial Magistrate, Bhaderwah. The respondent approached the High Court and got the proceedings stayed. Respondent has filed the complaint

with the sole purpose of blackmailing the petitioner as well as to humiliate him at the instigation of those elements against whom the petitioner, while

being posted as S.D.P.O. Samba had taken the legal action. Lastly, it is averred that cognizance of such a complaint could be taken by the

Magistrate unless necessary sanction for the prosecution of the petitioner was obtained by the respondent from the competent authority.

Heard the arguments.

It has been contended by the learned counsel for the petitioner that the alleged illegal act can be said to have been done in the discharge of

official duty and as such, the petitioner herein had the protection of Section 197 Cr. P.C. and no action could be taken without obtaining the prior

sanction from the competent authority. In support of his contention the counsel has cited the cases of Jagjivan Lal v. Krishan Chand Sharma 1986

KLJ 347 ; Sk. Siraj Vs. State of Orissa and Others, and R. Balakrishna Pillai Vs. State of Kerala, .

The learned counsel appearing for the respondent was argued in rebuttal that causing of injuries and wrongful confinement are illegal acts and in

no manner it can be said that they were done in the discharge of official duties. The petitioner herein has committed the offences and he has to be

tried under law in the same manner as an ordinary offender is tried.

After considering the respective contentions of the learned counsel for the parties, the law cited at the bar has to be considered. This court in

Jagjivan Lal's case 1986 CriLJ 347 (supra) has held that a Cabinet Minister had actually engaged himself in the performance of his duties as a

Minister as well as legislature of the constituency when he had publically criticised the functioning of In charge Headmaster of Govt. Medical

School against whom there were protests and 'Dharnas' that he had been trying to plunder the modesty of a female teacher of the school,

In Sk. Siraj Vs. State of Orissa and Others, Orissa High Court held like this (at page 2418; of Cri LJ) :-

x x x x x x x

It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official

duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor it

impossible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public

servant to. commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to this

question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and

there was every connection with the act complained of and the official duty of the public servant.

The Apex Court in Vinod Krishna Kaul, Indian Police Service (Retired) Vs. Union of India and others, : R. Balakrishna Pillai Vs. State of

Kerala, has held that! sanction for prosecution against Kerala State Minister for Electricity was required when the allegations were that he had

supplied certain units of Electricity to a private industry in an illegal manner. The Apex Court had held the proposition of law as under (at

page.903; of AIR).:-

The Criminal conspiracy alleged against the appellant is that while functioning as the Minister for Electricity he without .the consent of the

Government of Kerala supplied certain units of Electricity to a private industry in Karnataka. Obviously he did this in the discharge of his duties as

a Minister. The allegation is that it was an illegal act inasmuch as the consent of the Government of Kerala was not obtained before this

arrangement was entered into and the supply was effected. For that reason, it is said that he had computed an illegality and hence he was liable, to

be punished for criminal conspiracy u/s 120B, IPC. It is therefore, clear from the. charge that the act alleged is directly and reasonably connected

with his official duty as a Minister and would, therefore, attract the protection of Section 197(1) of the Act.

Section 197 Cr. P.C. provides that when any public servant who is 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 of the Government. The object of this section is primarily to guard

against vexatious proceedings against public servants. Before such criminal proceedings are launched against the public servant, it has been

considered proper that the well considered opinion of a superior authority is obtained. The bar imposed by Section is absolute. In order to attract

the provisions of this section, three conditions are essential to be satisfied, firstly, that a person complained of is a public servant; secondly, the

accused must be a person removable from the office only with the sanction of State Government and thirdly, he must be accused of an offence

alleged to have been committed by him while acting or purported to have act in the discharge of his duties. In the present case, the first two

requirements need no discussion because it is an admitted fact that the petitioner herein is a public servant and he is a person removable from the

office only with the sanction of the State Government.

So far as the third requirement is concerned it has to be ascertained whether the petitioner had altogether no connection with the alleged

commission of the acts or he is stated to have misused his official position and thereby committed the offence. When there is misuse of the official

position such action cannot be said to be unconnected with the discharge of his official duties. The admitted case of the respondent is that on his

own accord he had gone to the Police' Station; Samba in order to effect a compromise between the two parties. The presence of the petitioner

herein in the Police Station was an official act as he was posted there as S. D. P. O. The allegations of the respondent are' that petitioner firstly

inquired as to why he was publishing the defamatory articles in his newspaper against him and then gave a beating and wrongfully confined for two

hours. The version of the S.H.O. Police Station, Samba of the incident is that respondent himself had attempted an attack on the petitioner and

after falling down from the Chair had received superficial injuries. An official act can be performed in the discharge of official duty as well as in

dereliction of it. Being supervisory Officer of the Police Station, it was the prime duty of the petitioner to see that the complaints received in the

Police Station are fairly investigated. Unscrupulous elements who masquerader as crushaders of justice are always required to be kept at bay. The

petitioner could inquire about the conduct of the respondent from him too who was an interloper in the premises of the Police Station. The version

of the S.H.O concerned that respondent had made an attempt to criminally assault the petitioner and in the process had himself received the

injuries cannot be ignored at its face value but requires to be considered with due care and caution. It can also be said that while being attacked the

petitioner had acted in self-defence and thereby caused the injuries in question. This act can be termed as an official act too. Thus, the act

complained of and the official duty are so inter-related that one can postulate 'reasonably that it was done by the petitioner in the performance of

the official duty though possibly in excess of the needs and the requirement of the situation or even it may be a case of pure dereliction of duty. In

case the petitioner is found to have misused his official position and thereby Committed the alleged offences even then the actions complained of

cannot be said to be unconnected with the discharge of his official duties.

Before cognizance could be taken of the complaint it was required on the part of the learned Magistrate to address himself whether the

provisions of Section 197 Cr. P.C, are attracted or not and the facts of the case are such where they are operative. The legal requirement of prior

sanction to prosecute the petitioner is lacking and as such the cognizance of the complaint is per se illegal.

In view of the above discussion, position of law, facts and other circumstances, it is a fit case where inherent powers of this Court u/s 561A

Cr.P.C. are to be exercised in order to prevent the abuse of the process of Court and also to secure the ends of justice. As such, the petition is

allowed and the proceedings (of complaint No. 53-A of 1990 titled Chandan Kumar v. Kamal Saini) pending before Sub Judge, Judicial

Magistrate, Samba, are quashed.