N. Brahmeswararao vs The Sub Inspector of Police and Others

Madhusudan Rao, J.—This appeal is directed against the order passed by the learned Judicial Second Class Magistrate, Vinukonda in Crl. M. P. No. 86 of 77 in C. C. No. 62 of 77 on the file of his court. The appellant filed a complaint under Sections 343 and 347 I.P.C. against the respondents who are police officers. At the commencement of the trial, the respondents filed the Crl. M. P. 86 of 77 objecting to the trial of the case on the ground that the court should not have taken cognizance of the offences except with the previous sanction of the concerned authority as required u/s 6(1)(c) of the Prevention of Corruption Act. After due consideration of the objection raised by the respondents, the Magistrate allowed the petition and declined to proceed with the case any further.

In allowing the petition, the learned Magistrate observed as follows:

The facts of the complaint petition as a whole, as well as the concluding allegation against the accused will certainly reveal the fact that the accused allegedly confined two persons in police lockup and demanded illegal gratification of about five sovereigns of gold for their release when the complainant and his list witnesses approached the police. Therefore, ends will justify the means. In such circumstances, it is evident that the accused made a demand of illegal gratification as revealed from the facts of the complaint petition. It is also not the case of the complainant that the accused detained in the said two persons wrongfully to recover the stolen property but only to extort some illegal gratification.

So much so, the main offence, according to the facts of the complaint petition, will only attract Section 5 of the Prevention of Corruption Act as urged by the learned defence counsel and therefore Section 6(1)(c) of the said Act is attracted.

Sri E, V. Bhagiratharao, the learned Counsel for the appellant contends that the allegations in the complaint petition disclose not only an offence punishable u/s 5 of the Prevention of Corruption Act but also offences punishable under Sections 343 and 347 of the Indian Penal Code and that it is perfectly open to the complainant to prosecute the respondents for the offences punishable under Sections 341 and 347 I.P.C. without any previous sanction. It is argued that the question of previous sanction arises only if the complainant seeks to prosecute the accused for the offence u/s 5 of the Prevention of Corruption Act. In support of his submission he relies on Baijnath Gupta and Others Vs. The State of Madhya Pradesh, , Durgacharan Naik and Others Vs. State of Orissa, and Govind Mehta Vs. State of Bihar, .

The law is well-settled that when the facts alleged in a complaint petition disclose primarily an offence to prosecute to which a sanction is necessary, it would not be open to the prosecutor to evade the requirement of sanction by any camouflage or device so as to prosecute the offender under some other Section of law not requiring a sanction. It is also well-settled that when a person commits several offences in the course of the same transaction and if the more serious offence requires a previous sanction or a special complaint, it would not be open to the prosecution to ignore the serious charge and prosecute the offender for the less serious charges which do not require a special complaint or previous sanction.

In Baijnath Gupta and Others Vs. The State of Madhya Pradesh, Their Lordships of the Supreme Court held that no sanction u/s 197(1) Cr. P.C. was necessary for the prosecution of the accused for the offence u/s 409 I.P.C. even though the accused committed an offence punishable u/s 477A read with with Sections 109 I.P.C. and 409 I.P.C. in so far as the action of the accused u/s 409 I.P.C. could not be deemed to have been committed by the accused-public servant while acting in the discharge of his official duty. Section 477A read with 109 I, P. C. in respect of which sanction was necessary u/s 197 Cr. P.C. is a minor offence when compared with the offence punishable u/s 409 I.P.C. In Durgacharan''s case (1966 Cri LJ 1043) the Supreme Court pointed out that the prosecution of the accused u/s 353 I.P.C. is not invalid though his prosecution u/s 186 I.P.C. is invalid for want of the necessary sanction is so far as the offence u/s 186 I.P.C. is far less grave than the offence u/s 353 I.P.C. The same principle was applied even in the case of Govind Mehta Vs. State of Bihar,

In Dr. S. Dutt Vs. State of Uttar Pradesh, . Their Lordships of the Supreme Court have clearly pointed out as follows in para 16 of the judgment.

In this connection we may again recall the words of this Court which were put in the forefront by Mr. Chari that it is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure u/s 195 of the Code of Criminal Procedure. If the offence was u/s 196, Indian Penal Code, a complaint in writing by the Court concerned was required. Before a complaint is made the Court has to consider whether it is expedient in the interests of justice to order a prosecution. In the lesser offence no such complaint by the Court is necessary and it is obvious that the lesser offence was chosen to bypass the Sessions Judge who had earlier decided that Dr. Dutt should not be prosecuted for perjury. Such a device is not to be commended....

In the instant case, the offence u/s 5(2) of the Prevention of Corruption Act is a more serious offence than the offences under Sections 343 and 347 I.P.C. The allegations in the complaint essentially and substantially disclose an offence punishable u/s 5(2) of the Prevention of Corruption Act. The Prosecution should co-ordinarily be for the graver offence punishable u/s 5(2) of the Prevention of Corruption Act and not merely for the minor offences under Sections 343 and 347 I. P. C, In Re: Govindaswami, , a question arose whether when a person commits offences punishable u/s 5(2) of the Prevention of Corruption Act and also u/s 409 of the Penal Code, it was open to the prosecution to prosecute the offender for the offence u/s 5(2) of the Prevention of Corruption Act. The question was answered in the affirmative on the ground that the offence u/s 409, I P. C. is graver than the offence u/s 5(2) of the Prevention of Corruption Act. It was observed as follows in that case (At p. 402 of AIR) : (at p. 480 of Cri LJ).

Apart from this, as pointed out in Dholiah v. Sub Inspector of Police, Welington Station AIR 1913 Mad. 702 : 32 Cri LJ 1215 when a complaint sets forth certain facts disclosing a minor offence and also a grave offence, the prosecution should ordinarily be for the graver offence. In this case, the offence u/s 409 I.P.C. is punishable with transportation for life whereas an offence u/s 5(2) of Act II of 1947 is punishable only with seven years rigorous imprisonment, or with fine, or with both. There is no doubt that the offence u/s 5(2) is graver than the offence u/s 5(2) of Act II of 1947. The prosecution must, therefore, be for the graver offence u/s 409 I P C. even though the facts disclosed fall within Section 5(2) of Act II of 1947.

The offence u/s 343 I.P.C. is punishable with imprisonment for two years or fine or both. The offence u/s 347 I.P.C. is punishable with imprisonment for three years and fine. The offence u/s 5(2) of the Prevention of Corruption Act is punishable with 7 years imprisonment and fine. The prosecution should therefore be launched for the grave offence punishable u/s 5(2) of the Prevention of Corruption Act. If the complainant-appellant applied to the competent authority for the necessary sanction to prosecute the accused for the offence under the Prevention of Corruption Act, the authority would have considered whether it is necessary in the interests of justice to sanction the prosecution. The requirement of sanction u/s 6(1)(c) of the Prevention of Corruption Act is a safe-guard for the public servants against frivolous or inexpedient prosecutions. Where allegations are made against a public servant and the allegations essentially and primarily constitute an offence for which a sanction is necessary, it cannot lie in the whim or caprice of the prosecutor to change the garb or to put a different label and then prosecute without the sanction. Further, when the allegations constitute several offences and the gravest offence requires a sanction, then also it would not be open to the prosecutor to dispense with the requirement of a sanction by prosecuting the public servant for the minor offences for which no sanction is necessary.

For the reasons recorded, I am of the view that the impugned order of the learned Magistrate allowing the objection of the respondents-accused to the prosecution against them is eminently justified and does not call for any interference. The appeal is therefore dismissed.