M.K.G. Selvarajan vs State

V. Kanagaraj, J.—The above Criminal Original Petition has been filed praying to call for the records in C.C. No. 9 of 2001 on the file of the

Court of I Additional Sessions Judge, City Civil Court, Chennai, and quash the same.

Tracing the history of the case, it comes to be known that the petitioner was working as a Senior Bailiff in the City Civil Court during the year

1994; that on a complaint filed by the Registrar, Small Causes Court, a case was registered by the respondent-police in C.B. C.I.D. Metro Crime

No.7 of 1997 and a charge sheet was filed for an offence punishable under Sections 466, 471 read with 466, 147, 451, 427 read with 120-B

I.P.C. against eleven accused, including the petitioner; that the petitioner is said to have committed offences punishable under sections 147, 451,

380, 466, 471 read with 466 I.P.C.; that in the very same crime number, another final report was filed citing the petitioner and another as accused

alleging that the petitioner had committed an offence punishable u/s 7 of the Prevention of Corruption Act on the ground that the accused evicted

one S. Shanmugasundaram illegally from door No.17/1, Thakkudin Khan Bahadur Street, Triplicane, and also obtained signatures of two persons

by name Ramesh and Kumar as witnesses for delivery of possession through one Babu; that the respondent, before filing the charge sheet,

obtained the sanction for prosecuting the petitioner from the Appointing Authority u/s 19(1)(c) of the Prevention of Corruption Act, 1988 and no

sanction was obtained u/s 197 Cr.P.C.; that taking cognizance of the offences under the Indian Penal Code against the petitioner is not valid in law

and hence he would seek for the relief extracted supra.

The complaint against the accused is that on 24.12.1993, the petitioner as the Senior Bailiff, while executing the Warrant of possession at

No.17/2, Thakkudin Khan Bahadur Street, Triplicane, in his official capacity as public servant, with an intention to get bribe, represented to A.2

Hussain, with whom the possession has to be handed over, that he could not execute the warrants immediately; that thereafter, the said Hussain

took the petitioner inside the house and gave him Rs.10,000/= as gratification to evict one Shanmugasundaram from the said house; that the

petitioner ordered forcible eviction of the said Shanmugasundaram from the house bearing door No.17/2 and hence, committed an offence

punishable u/s 7 of the Prevention of Corruption Act, 1988.

The case of the petitioner is that based on the complaint of the Registrar, Small Causes Court, Chennai, a case was registered by the respondent

for offences punishable under Sections 120-B, 147, 341, 447, 448, 427, 380, 161, 193, 196 and 199 IPC and a final report has been filed for

offences punishable under Sections 466, 471 r/w. 466, 147, 451, 427 r/w. 120-B IPC against 11 accused, including the petitioner. The petitioner

further submits that in the very same Crime number, another final report has been filed citing the petitioner and another as accused for the offence

committed u/s 7 of the Prevention of Corruption Act. The contention of the petitioner is that both the two charge sheets have been laid in the case

registered in one and the same Crime No.7/97, the first one by the Crime Branch CID, Metro Wing taking up the investigation and the second one

by the High Court Vigilance Inspector of Police attached to the High Court Vigilance.

During arguments, the learned counsel appearing for the petitioner would also cite the following judgments reported in

(i) 2000 SCC (Cri) 1202 (Surendra Pandey v. State of Bihar and others)

(ii) 2000 SCC (Cri) 872 (Gauri Shankar Prasad v. State of Bihar and another)

(iii) The Bombay Law Reporter 660 (Natwarlal Sakarlal Mody v. The State of Bombay)

(iv) State of Kerala Vs. V. Padmnabhan Nair,

(v) 1998 SCC (Cri) 1(Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and others)

(vi) 2000(4) Cri152 (Abdul Wahab Ansari v. State of Bihar and Anr.)

In the first judgment cited above it is held ''the act complained of is intrinsically connected with the discharge of the official duty. In this view of

the finding, it must be held that Section 197 CrPC. gets attracted, even if the alleged act was in excess of the discharge of the official duty.''

In the second judgment cited above it is held that ''The object of the section is to save officials from vexatious proceedings against Judges,

Magistrates and public servants but it is no part of the policy to set an official above the common law. If he commits an offence not connected with

his official duty he has no privilege.''

In the third judgment cited above it has been held that ''Separate trial is the rule and joint trial is an exception.''

In the fourth judgment cited above it is held that ''An accused facing prosecution for offences under the Prevention of Corruption Act cannot

claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said

offences.''

In the 5th judgment cited above it is held:

The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous

sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge

of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with

the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the

accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the

court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the

accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact

Section 197 has any application in the case in hand. The question of sanction can be considered at any stage of the proceedings.

In the last judgment cited above it is held:

On a plain reading of the provisions of Section 197 makes it crystal clear that the Court is prohibited from taking cognizance of the offence except

with the previous sanction of the competent authority. There is no requirement that an accused should wait for taking such plea till the charges are

framed.

On such arguments the learned counsel for the petitioner would pray to grant the relief extracted supra.

On the other hand the learned Government Advocate would clarify that though two different charge sheets one for the IPC offences and the

other for the commission of offence in one and the same crime under the Prevention of Corruption Act, 1988 have been laid by the prosecution,

still, it is up to the trial Court to frame the charges according to the warranting provision of law and therefore, it is up to the trial Court to frame the

charges and therefore, question of quashing of the charge sheet does not arise at all. Regarding the sanction to be obtained u/s 197 Cr.P.C. the

learned Government Advocate would apprise this Court that it is not at all necessary in the case of the petitioner and therefore, the sanction was

not obtained. On such arguments the learned Government Advocate would pray to dismiss the above Criminal Original Petition.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, this Court

is able to know that mainly on two grounds the petitioner has come forward to file the above Criminal Original Petition firstly that dual charge

sheets have been filed in one and the same crime number for one and the same offence, which cannot be sustained in law since two trials cannot be

held nor twice any accused could be punished for one and the same offence. The case in hand particularly connecting the petitioner is nothing but

one registered for the commission of a very serious offence of forging the official documents and making the forged document appears genuine etc.,

besides obtaining a bribe of Rs.10,000/- for not executing the process of the Court and to evict a different person in order to save the person who

is to be evicted, by manipulation of records wantonly and deliberately by the petitioner who was working as the Senior Bailiff in the City Civil

Court, Chennai during the year 1994, who has been charged for the offence punishable under Sections 466, 471 r/w 466, 147, 451, 427 r/w

120B IPC. among 11 accused besides becoming punishable by another charge u/s 7 of the Prevention of Corruption Act, 1988 and in fact the

competent authority, the Principal Sessions Judge, City Civil Court, Madras has accorded sanction for the petitioner to be prosecuted u/s 19(1)(c)

of the Prevention of Corruption Act and therefore, the second contention of the petitioner is that the sanction accorded by the competent authority

is only pertaining to the case registered against the petitioner under the penal provisions of the Prevention of Corruption Act, 1988 and the same

cannot be taken for granted serving the purpose for prosecuting the petitioner under the other IPC Sections noted above and it is incumbent on the

part of the prosecution to obtain sanction u/s 197 Cr.P.C. so far as prosecution of the petitioner under the I.P.C. Sections are concerned since he

is a Government servant protected under the said provisions of law.

No doubt, Section 197 is designed for affording protection for Public Servants but not all the public servants and not in every act indulged in

by a public servant. Limitations are there in this regard, firstly the Section is applicable only to a Judge or a Magistrate or a public servant not

removable from his office save by or with the sanction of the Government against the commission of offence while acting or purporting to act in the

discharge of his official duty.

First of all plainly it could be decided that the petitioner being the Senior Bailiff is neither a Judge nor a Magistrate nor even a public servant nor

removable from his office except by or with the sanction of the Government, he is a Government Servant who could be removed by the competent

authority.

At this juncture a little argument needs necessary; that even decades back this question of sanction came up, before the Supreme Court based

on a maxim to the effect that every act done by the Government authority is deemed to be the act of Government, since he derives the power only

from the Government and in his personal capacity. However, the Supreme Court gave clarification and altered the maxim and clarified that in olden

days all the Government powers were heaped together with one or some hands, particularly during monarchical regime every power had to be

derived from the Government. But now on account of Legislation of laws, it cannot be said that the competent authority either for appointing or for

removal of a Government servant has to derive the power from the Government, but from the enactment and therefore, the maxim could not be

applied to cases of such nature as it is one in hand.

The upper forums of law have gone further assessing the merit of the cases falling under the protective coverage of Section 197 Cr.P.C. and

ultimately settled that the Section is applicable only to the commission of lawful acts committed by the Government servants of that category in

discharge of his lawful duties and therefore, all acts purported to have been done by a Government servant cannot be said to be in discharge of his

lawful duties and wherever acts with malicious intention have been indulged in particularly wherever malice forms part of the act, or such acts done

by a Judge or Magistrate or a Government servant of that category who cannot be removed but by the Government are not protected u/s 197 and

therefore, no sanction under this particular provision of law need be necessary. In short it is only the lawful acts in discharge of the official functions

which are protected u/s 197 for the prosecution of which sanction is necessary and not for those acts purported by the Judge or Magistrate or the

public servant in which malice is attached for the prosecution of which sanction is not at all necessary.

These propositions have been long back held and followed in very many decisions by the upper forums of law in general and by the

Honourable Apex Court in particular. While such being the position of law as per the first proposition held regarding the status of those who have

not been mentioned in Section 197 Cr.P.C., as perk which it is only the Judges the Magistrates and those public servants who could not be

removed from out of service, save by the Government are only entitled to claim the benefit of the section and not every public servant such as the

petitioner who could not be said to be removed only by the Government and therefore, sanction u/s 197 is not at all necessary for in the case

registered against the petitioner since the Section is not at all meant for such category of public servants like the petitioner who could very easily be

removed by the competent authority who accorded sanction for the prosecution of the case registered under the provision of the Prevention of

Corruption Act that is by the Principal Sessions Judge, City Civil Court, Chennai and therefore, needless to mention that the petitioner cannot claim

the benefit of Section 197 Cr.P.C. since he does not fall within the ambit of the Section.

Secondly, the act perpetrated by the petitioner even though meant for discharge of the official duty which has not been done in the legal manner

in due discharge of his official duty i.e. the execution of the process of law but deviated from the official and lawful discharge of duties, since the

petitioner started indulging in acts malicious in nature, such of those criminal acts indulged in by the petitioner are not attracted by Section 197 of

Cr.P.C. and in short it could be said that the petitioner is not entitled to seek protection u/s 197 Cr.P.C. which is meant only for protecting those

offences which arise in the course of the discharge of the lawful duties and responsibilities in a lawful manner by such of Government servants

covered u/s 197 of Cr.P.C. who could not be removed from out of service save by the Government and therefore, the sanction that is sought to be

required to have been obtained by the prosecution for prosecuting the petitioner under the IPC Sections is not at all a requisite in the case in hand

since the sanction for the prosecution of a Government servant in general is only required under the provisions of the Prevention of Corruption Act

1988 and since this has been complied with, the prosecution of the petitioner in the manner that it has been dealt with is perfectly right and it is up

to the trial Court to decide the case on trial.

Regarding the dual charges alleged to have been placed before the court it is not that the trial Court is going to act upon the said charges since

based on the available materials placed on record the lower Court is bound to frame the charges based on which alone the trial will commence and

therefore, the filing of the charge by the police is not going to affect the case in any manner and therefore, this Court does not find any valid or

tangible reason to cause its interference into the ongoing trial procedures undertaken by the trial Court and hence the following order:

In result,

(i) the above Criminal Original Petition does not merit acceptance for the forgoing reasons assigned and becomes only liable to dismissed and is

dismissed accordingly;

(ii) consequently, Crl. M.P. Nos. 5932 and 5935 of 2003 are also dismissed.