K.S.Jamwal, Lt.Col. vs Rajni Sehgal

Arun Kumar Goel, Judge.

This is a petition under Section561A Criminal Procedure Code filed by the petitioner for quashing the proceedings initiated by the respondent

against him by means of complaint, Annexure D, pending in the court of Sub Judge, Judicial Magistrate First Class, Reasi, in case titled as Smt.

Rajni Sehgal Vs. Lt. Col. K.S.Jamwal, under sections 294, 323,332, 353, 344, 354,500, 504 and 506 Ranbir Penal Code.

Sole question urged by learned counsel for the petitioner before this court, in support of this petition, was that since the offenses alleged against

the petitioner, as per complaint, have been committed by him and are related in some manner with the discharge of his official duties and, therefore,

unless sanction under Section 197 Criminal Procedure Code was there, the entertainment of complaint and subsequent proceedings thereon,

including issuance of process against him, by the trial Magistrate was bad in law and thus the complaint was not at all maintainable.

Brief facts of this case, which emerge from the complaint Annexure D, are that the respondent was posted as Superintendent, Sub Jail, Reasi,

and according to her, Additional Director General Prisons and Fire Services, J and K, Srinagar, Shri Veerana Avelli, was inimically disposed

towards her, therefore, he ordered her suspension, which was questioned by the respondent and the matter is pending before this Court. In those

proceedings, interim in order was initially granted and later on it was confirmed, whereby the respondent has been permitted to continue on duty.

Further case of respondent is that she was on station permission with effect from 2.8,1997 to 4.8.1997, and the petitioner had granted her the

same. Further case of respondent, as urged in the complaint, is that due to her ailment she could not resume her duty on 4.8.1997 and. informed

the higher authorities on telephone, when she was orally permitted to remain out of station. However, on 5.8.1997, she came to know that the

petitioner has been asked to visit the jail at Resai, by the above named Additional Director General Prisons and Fire Services, which the petitioner

did visit, accompanied by another Officer. On having come to know about the same, she also reached there at 3 P.M.

It is at this point of time, according to respondent, the petitioner hurled filthy abuses and used unparliamentary language against her. It is further

case of respondent that Roznamcha (Daily Diary) of the police, station concerned was taken out of the Jail by the petitioner, despite protest of the

respondent. According to respondent, she had reported the matter to Additional Chief Secretary (Home) J and K Govt., His Excellency the

Governor of Jammu and Kashmir, Hon'ble Chief Minister of J and K State, Hon'ble Minister of State Home Affairs, and Additional Director

General Prisons and Fire Services, J and K, Srinagar, but when nothing came out, then the necessity arose of filing the complaint.

On the other hand, case of the petitioner is that after having visited the Jail at Reasi he found respondent alongwith another official Romesh

Chander, Assistant Superintendent, being not there as there was no endorsement made in Roznamcha, copy whereof has been placed on record

as Annexure B.

From averments made in Para 5 of the petition, it is clear that the petitioner admits the process having been issued against him by the trial

Magistrate below, although, according to him, it could not have been issued in view of the bar of Section 197 Criminal Procedure Code, because

while making the report in Roznamcha, vide Annexure B, on the respondent having been found absent from duty, he was acting in discharge of his

official duties because SubJail Reasi, where the respondent was posted fell within his jurisdiction, as he was Deputy Controller of Prisons.

So far plea of the petitioner that process could not have been issued against him, in respect of the acts alleged to have been committed by him

while acting as public servant in the discharge of his official duty, without the sanction under Section 197 Cr.P.C. of the Government, is concerned,

there can hardly be any dispute. But the question that needs to be seen further is that whether it was a part of the official duty of the petitioner, as a

public servant, to have committed such criminal acts of having made obscene gestures causing hurt, well as having obstructed a public servant in

the discharge of his duties, besides having committed acts of wrongful confinement, making an attempt to outrage the modesty of a woman, as also

having committed further acts of intimidation etc., complained against him.

So far the grant/refusal of the sanction by the Government is concerned, the sole purpose of it is that it is in the shape of assurance to an upright

and straightforward Officer to perform his duty as a public servant fearlessly, who is discharging his duty in the public interest. Grant of sanction is

further aimed at preventing undue harassment or prosecution of a public servant, while he discharges his duty in his capacity as such. However, in

no case under the cloak of discharge of such duties in his capacity, as a public servant, he has any authority whatsoever to commit a crime, as

public duty can provide an opportunity to a public servant to commit crime, but it has to be examined by the Court in the course of enquiry or trial,

as the case may be, after application of mind and thereafter record its finding that the crime and official duty were not integrally connected or not.

Learned counsel appearing for the petitioner has placed reliance on (1993) 3 Supreme Court Cases 339, State of Maharashtra Vs. Dr.

Budhikota Subbarao and 1997 Criminal Law Journal 3143, Dr. Sharda Parihar Vs. State and others, a decision of this Court, and urged that the

proceedings were liable to be quashed against the petitioner.

It may be appropriate to notice thatAnnexure D, the complaint, does not indicates that any Sanction was obtained by respondent before

initiating complaint against the petitioner. Present petition itself indicates that tried Magistrate has issued the process against the petitioner and it is in

his background that the present petition has been filed for quashing the complaint as well as issuance of process by the trial Magistrate.

So far case of State of Maharashtra (supra) is concerned, it has no applicability in as much as the documents which were recovered from the

respondent in that case, were his own published papers, as well as other information he had gathered while working in Bhaba Atomic Research

Centre, as well as while working as an Officer in the Naval Department. On the facts of that case, the Supreme Court upheld the order of quashing

the complaint against the respondent for want of Sanction under Section 197 Criminal Procedure Code.

So far judgment of this Court in the case of Dr. Sharda Parihar (supra) is concerned, as will be seen hereinafter, it may not hold the field, in

view of the subsequent decision of the Apex Court reported in (1997) 5 Supreme Court Cases 326, Shambhoo Nath Misra Vs. State of U.P and.

Others. Observations relevant in the context of the present case in this judgment are:

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Section 197 (1) postulates that ""when any person who is ... a public servant no 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 appropriate Government/authority. The essential

requirement postulated for the sanction to prosecute the public servant is that the offence alleged against the public servant must have been done

while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of

the performance of his official duties. If the act/omission is integral to the performance of public duty, the public servant is entitled to the protection

under Section 197(1) of Cr.RC. Without the previous sanction, the complaint/charge against him for the alleged offence cannot be proceeded with

in the trial. The sanction of the appropriate Government or competent authority would be necessary to protect a public servant from needless

harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to

the best of his ability. The threat of prosecution demoralises the honest officer. The requirement of the sanction by competent authority or

appropriate Government is an assurance and protection to the honest officer who does his official duty to further public interest. However,

performance of official duty under colour of public authority cannot be camouflaged to commit crime. Public duty may provide him an opportunity

to commit crime. The court to proceed further in the trial or the enquiry, as the case may, be, applies its mind and records a finding that the crime

and the official duty are not integrally connected.

The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc.

can he be said to have acted in discharge of his official duties. It is not the official duty of public servant to fabricate the false records and

misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the

record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably inter linked with the crime committed in

the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view

expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.

Even if it is assumed for the sake of argument that the judgment in the State of Maharashtra (supra) covers the case of petitioner, of which he

claimed benefit, then the question to be seen is as to how the decisions of the Honourable Apex Court are to be followed.

Decision in the case of State of Maharashtra (supra) is by a two Judges Bench of the Supreme Court, as also later decision in the case of

Shamboo Nath Misra (supra) is also by two Judges Bench. In such a situation, it is the later decision that needs to be followed.

In view of the aforesaid discussion and in view of the later decision of the Supreme Court in the case of Shamboo Nath Misra (supra), there is no

merit in this petition, which is accordingly dismissed

Since process has been issued against the petitioner, as per his own showing in the petition, it is ordered that he shall appear before the trial

Magistrate on February 27,1998. Registry will send a copy of this order to the court below for its information and enabling it to proceed further in

accordance with law.