Ram Lal Jain vs Gurnam Singh

Harmohinder Kaur Sandhu, J.—Gurnam Singh, respondent filed a complaint u/s 342/500 of the Indian Penal Code against Ram Lal Jain, Tehsildar, Kharar, alleging that he had agreed to purchase the land belonging to one Ajaib Kaur and her son Dilbhag Singh situated in the area of village Landran, Tehsil Kharar. She executed a sale deed in his favour on July 15, 1986 and mutation of the sale was also sanctioned. Ram Lal Jain, Tehsildar sent a demand notice to him for Rs. 5670/- on account of deficiency in stamp duty on the sale deed, which was returnable on October 20, 1987. He had filed a Civil Suit for permanent injunction restraining the Tehsildar from recovering the amount on account of deficient stamp-fee and in that suit, ex parte proceedings had been taken against the Tehsildar and Collector, Ropar on October 12, 1987. On October 20, 1987, he informed the Tehsildar regarding the suit filed by him, but the Tehsildar told him to pay the amount immediately, or be confined in civil prison. His father who was a Lamberdar had Rs. 3000/- in his pocket and he told the Tehsildar to accept that amount and assured that he will bring the remaining amount from his village within half an hour. As soon as his father left for village Landran on scooter, the Tehsildar confined him in civil prison at about 9.45 a.m. and also remarked that he was a "thief". His father returned from the village at 10.30 a.m. and paid the total amount of Rs. 5670/- plus a warrant fee of Rs. 10/- and, thereafter, he was released at 11.15 a.m. from the civil lock up. In this way, he was intentionally insulted and defamed by the accused. There was no condition in the warrant regarding payment of amount and in default thereof confinement in civil prison. By this act of the accused, his reputation was lowered in the eyes of the residents of the Tehsil Kharar. He was illegally confined and defamed.

After recording preliminary evidence, the learned trial Court found that a prima facie case u/s 342/500 of the Indian Penal Code was made out against Ram Lal Jain, Tehsildar, Kharar and he was summoned to face trial for these offences vide order dated September 12, 1988.

After the present petitioner i.e. Ram Lal Jain, appeared in the trial Court, he moved an application for dropping the proceedings against him as he was a government servant and was acting in the discharge of his official duties. He could not be removed from his service save by or with the sanction of the State Government. Cognizance of any offence could not be taken against him till sanction u/s 197 of the Code of Criminal Procedure was obtained by the complainant.

This application was opposed by the complainant and after hearing counsel for the parties, the learned Judicial Magistrate 1st Class, Kharar, kept the application in abeyance till fresh material was legally produced by the applicant vide his order dated July 18, 1989 - Annexure P-5.

The present petition has been filed by Ram Lal Jain u/s 482 of the Code of Criminal Procedure, for quashing the complaint Annexure P-1, summoning order dated September 12, 1988 Annexure P-2 and order dated July 18, 1989 Annexure P-5.

The petitioner averred that during audit for the years 1985-86, it was found that there was deficiency of Rs. 5250/- in stamp duty and Rs. 420/- in the registration charges in respect of a registered deed dated June 19, 1985, which was recoverable from Gurnam Singh-respondent. Report to that effect was made by Rajinder Parshad, on the basis of which, a demand notice was issued against the defaulter by Tara Singh, Assistant Collector IInd Grade. On October 20, 1987, Gurnam Singh appeared and offered Rs. 5670/- on account of deficiency in stamp duty and registration fee for deposit and this amount was received vide receipt No. 1647 dated October 20, 1987 and no further action was taken in the matter. A false complaint was filed by the respondent on November 23, 1987, which did not disclose the commission of any offence. Moreover, he was exercising the powers of Assistant Collector 1st Grade and acting in discharge of his official duties. The provisions of Section 197 of the Code of Criminal Procedure barred the taking of cognizance by the Judicial Magistrate against him. The impugned order Annexure P-1 was not sustainable and there was no reason to keep the application moved u/s 197 of the Code of Criminal Procedure in abeyance. It was further pleaded that he neither issued warrant of arrest against the respondent, nor detained him in civil prison. One Ram Singh was Head Peon in the office of Tehsildar, Kharar and he had sworn an affidavit Annexure P-6 that the respondent was never detained in revenue lock up on October 20, 1987. Taking of cognizance of the complaint and not deciding the application u/s 197 of the Code of Criminal Procedure moved by the complainant was certainly an abuse of process of the Court.

In the return filed by the respondent, averments made in the complaint were denied and it was contended that there was no necessity to obtain prior sanction for the prosecution of the petitioner.

I have heard Mr. D. R. Mahajan, the learned counsel for the petitioner, Mr. Harpal Singh, the learned counsel for the respondent and have perused the record.

It was argued on behalf of the petitioner that petitioner had not issued any warrant for the recovery of the amount on account of deficiency in stamp duty and registration fee. Demand notice was issued by Assistant Collector IInd Grade, namely Tara Singh for October 20, 1987 and on that day, the whole of the amount demanded vide demand notice was deposited by the complainant. There was, thus no question of detaining the respondent in civil prison. Affidavit of Head Peon, who was in charge of the revenue lock-up proved this fact that the respondent was never confined but even if the allegations made in the complaint are, prima facie, taken to be true, the Court could not take cognizance of the offence without prior sanction of the government. A reference was made to Section 197 of the Code of Criminal Procedure, which reads as under:-

"When any person who is or was a Judge or Magistrate or a public servant 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-

(a) In the case of a person who is employed or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union, of the Central Government;

(b) In the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a state, of the State Government.

& 3...."

This fact is not denied that the petitioner was posted as Tehsildar, Kharar, at the time of the alleged incident and whatever act is attributed to him, that he was performing in the discharge of his official duties. In B. Saha and Others Vs. M.S. Kochar, , it was observed (at page 1371; of Cri LJ) : -

"The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty", employed in Section 197(1) are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether, sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. It is the quality of the act that is important and if it fails within the scope and range of his official duties, the protection contemplated by Section 197 will be attracted."

Taking wider meaning of the provision, it is evident that every act constituting an offence committed in the course of the same transaction in which the official duty is performed, is covered by the provisions of Section 197. In the instant case, a demand notice had been issued after a deficiency in stamp duty and registration fee was found, which was recoverable from the respondent and if during the recovery of that amount, some act was done by the accused which constituted an offence, that was done by him while acting or purporting to act in the discharge of his official duties and no Court can take cognizance of such an offence except with the previous sanction of the State Government. In R.C. Gupta v. Shri Kanti Krishan Sharma 1991 (1) RCR 660, an officer losing temper called his subordinate ''Goonda'' and ''Badmash'' a complaint was filed against the officer without obtaining sanction of the Government u/s 197 of the Code of Criminal Procedure, it was held that sanction was necessary for the prosecution and complaint was quashed for want of sanction.

The above referred authorities are applicable to the facts of the present case and the Magistrate was not competent to take cognizance of the offence in the absence of sanction of the State Government u/s 197. Continuation of proceedings, under these circumstances, will amount to an abuse of a process of the Court.

For the reasons recorded above, this petition is allowed. The complaint Annexure P-1, summoning order Annexure P-2 and order Annexure P-5 as well as all further proceedings in the case, are hereby quashed.