R.C.Gupta vs Kanti Krishan Sharma

A. P. Chowdhri, J.

Facts necessary for the disposal of this petition under Section 482 of the Code of Criminal Procedure are that Shri Kanti Krishan Sharma, Assistant Engineer, Hydel, Project, HSEB, respondent was transferred to the office of Chief Engineer, Hydel Project, Yamunagar, on August 18, 1989. He reported for duly on September 1, 1989. At that time the Chief Engineer of the Hydel Project posted at Yamunanagar was Shri R. C. Gupta, petitioner herein. The Chief Engineer, directed the respondent, to join at Bhurd Kalan. The respondent was, however, not interested in joining at the said station. He, therefore, did not join there. Instead he filed a civil suit on December 27, 1989 and obtained an injunction order from the Court staying the operation of his posting at Bhurd Kalan. He thus continued being at Yamunangar. On November 9, 1989, the respondent filed a complaint under Sections 494/500 of the Indian Penal Code in the Court of Judicial Magistrate 1st Class, Jagadhri, against the petitioner, alleging that a day earlier on November 8, 1989, at about 11 a.m. he had gone to the office of the petitioner to request him to allocate work to him. At that time two persons were present in the office of the petitioner. The petitioner lost his temper and addressed him as Goonda and Badmash while saying that he was thinking of getting him suspended when he had come to talk about law and his right. After recording preliminary evidence, learned Magistrate summoned the petitioner for the aforesaid offence by order dated May 23, 1990, Annexure P4. The petitioner seeks quashing of the complaint as also the summoning order as abuse of the process of the Court on several grounds.

The contention of Shri Vijay K. Jindal, learned counsel for the petitioner, is that the Magistrate could not take cognizance of the alleged offence without sanction of the State Government under Section 197 of the Code of Criminal Procedure. He submitted that the respondentAssistant Engineer had approached the petitionerChief Engineer to allot him work at the headquarters of the Hydel Project, namely, Yamunanagar. What the Chief Engineer allegedly told him by way of reply must, therefore, be deemed to be a part of the transaction of the discharge of official duties by the Chief Engineer. He placed reliance on two decisions of this Court. The first decision relied on by him is Balbir Singh v. Mohinder Singh, 1984(2) Recent Cr. R. 385 . Mohinder Singh was a Junior Sports Officer in the Directorate of Sports. He approached Shri Balbir Singh, Director of Sports, in the latter''s office accompanied by a certain person to explain his difficulties and to request him for transfer to a certain station. The Director lost his temper and hurled abuses on Mohinder Singh, called him a corrupt officer and further said that he did not want to see his face. It was also alleged that Shri Balbir Singh told Mohinder Singh "Kutia Chumara Men Har Same Tenu Naukri Ton Kadan Di Sochda Han, Te Tu Menu Badli Bare Kehenda hen". Mohinder Singh filed a complaint in which Balbir Singh was summoned. It was against the complaint as well as the summoning order that Balbir Singh filed a revision in the High Court. A learned Single Judge of this Court referred to S.B. Saha and others v. M.S. Kochar, 1979 Cr. L.J. 1367 (SC) and extracted the following passage from the said authority.

"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 narrow as well as 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 falls within the scope and range of his official duties the protection contemplated by Section 197 will be attracted."

Applying the ratio to the facts of that case, it was held that Shri Balbir Singh had acted in discharge of his official duty in the context of the request of Shri Mohinder Singh for transfer and his calling him a corrupt officer had nexus with the transfer of the official. The other decision to which reference has been made is Pardeep Singh Kalka v. State of Punjab add another, 1984(2) Recent Criminal Reports 542 : 1985(1) CLR 304 . In this case also the petitioner was approached by the complainant for help in his official capacity. The petitioner declined to extend the help and further ridiculed him for his being a member of the scheduled castes. It was held that the entire conduct of the petitioner constituted one unit and it was, therefore, held that sanction under Section 197 of the Code of Criminal Procedure was required.

Shri Jagdev Sharma, learned counsel for the respondent on the other hand contended that the words attributed to the petitioner had no connection whatsoever with discharge of official duty and therefore there was no question of any sanction. He cited Bhagwan Prasad Srivasta v. N.P. Mishra, 1970 Cr. L.J. 1401. In this authority also, the apex Court reiterated the earlier observation that Section 197 of the Code of Criminal Procedure is neither to be too narrowly construed nor too widely. In so far as the proposition of law as concerned, there is no, difference in the observations in Bhagwan an Prasad Srivastava''s case (supra) and the later decision of three Judges Bench in S. B. Saha''s case (supra). The authority in Bhagwan Prasad Srivastava''s case is, however, distinguishable on facts and the same is of the no assistance to respondent. The two decisions, to which reference has been made by Shri Jindal, are applicable to the facts of the present case and therefore, the Magistrate was not competent to take cognizance of the complaint in the absence of sanction of the State Government under Section 17 of the Code of Criminal Procedure. Continuance of the complaint and trial of the petitioner in these circumstances is an abuse of the process of Court,

The petition is, therefore, allowed and the complaint as well as the summoning order are hereby quashed.