Muzaffar Ahmad Khan vs Ab.Gani Bhat

Petitioner has questioned order dated 1232004 passed by Judicial Magistrate (2nd Additional Munsiff), Srinagar in the complaint titled Abdul

Gani Bhat Vs. Muzaffar Ahmad Khan.

It appears that a complaint came to be filed by the respondent against the petitioner on the ground that he had made some remarks/allegations in

a letter which came to be addressed by petitioneraccused in his capacity as Director Colleges, Higher Education Department, and the respondent

came to know about the said letter, when challan was presented before the Court of Special Judge, Anticorruption, Srinagar, as alleged. It is

further alleged that the accusedpetitioner has used such words/sentences which are defamatory. Complainant has also reproduce the relevant

portion of that letter in the complaint at page 4. Cognizance came to be drawn and process issued by the City Magistrate vide order dated

1102001.

Petitioner accused appeared and filed petition under section 561A Cr.P.C. in this Court which came to be dismissed vide order dated

2272002. Thereafter petitioner filed an application for dismissing the complaint on the ground that sanction was required in terms of section 197

Cr.P.C. or in the alternative, petitioner was entitled to protection under section 198B Cr.P.C. came to be dismissed vide order dated 1232004, by

1st Class Judicial Magistrate (2nd Additional Munsiff), Srinagar, feeling aggrieved, the petitioner has filed the present petition for quashment of the

said order and for dismissing of the complaint.

The sole question involved in this petition is whether petition in hand is maintainable?

The scope of 561A Cr. P.C. is very limited and discretion is to be exercised very cautiously, sparingly and in the rarest of rare cases, as held by

the apex court in case reported as Reshma Bano Vs. State of UP & ors., 2008 AIR SCW1998. On this count alone, this petition merits to be

dismissed.

The second question whether sanction in the given circumstances of the case was required, the answer is in negative. Admittedly the petitioner

had made the communication when he was holding the post of Director Colleges, but whether remarks were made by him in the letter against the

complainant Abdul Gani Bhat, can be said to have been done while discharging public functions/public duties. I am of the view that making

defamatory remarks in any communication by any public servant, cannot be said to be falling within the ambit and scope of discharging public

duties.

Section 197 Cr. P.C. provides that sanction is required when any public servant commits any offence while performing his official duties and the

Act is directly or indirectly connected with official duty. There was no need to use the words reproduced in the complaint while making

communication. It is no where connected with his official position. The matter is clearly covered by a judgment of the apex court titled B.S.

Shambhu Vs. T.S. Krishnaswamy, reported in AIR 1983 SC 64. In the said case Munsiff had written a letter to the District Judge and had made

certain remarks against an Advocate which were, according to the Advocate, defamatory. A complaint came to be filed against that

Magistrate/Munsiff. The question came up for consideration before the trial court, revisional court. High Court and lastly the apex court held that

making of adverse/defamatory remarks while making official communication/correspondence cannot be said to be in any way connected with the

official duty. It is apt to reproduce relevant portion of the judgment hereunder.

There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the

accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.

The apex court has also laid down the tests in star case tilled Matajog Dobey Vs. H.C. Bhari, reported in AIR 1956 SC 44. It is apt to

reproduce relevant portion out of para 17 of the judgment here under:

.......The offence alleged to have been committed must have something to do or must be related in some manner, with the discharge of official

duty. Nor question of sanction can arise under S. 197, unless the act complained of is an offence; the only point to determine is whether it was

committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if

the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the

merits.

What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused

in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.

This point of law also came up for consideration in so many cases and the apex court has laid down how and when protection under section

197 Cr. P.C. is to be attracted.

The argument of learned counsel for the petitioners that provisions of section 198 Cr. P.C. are attracted is devoid of any force. The mandate

of section 198A Cr. P.C. is not applicable to the instant case, while keeping in view the allegations contained in the complaint.

Keeping the facts of the case in view and the law laid down by the apex court, I am of considered view that impugned order is well reasoned

and is not in any way abuse of process of law and cannot be made subject matter of petition under section 561A Cr. P.C.

For the foregoing reasons, there is no merit in the petition which merits dismissal. Order accordingly.