R.D. Dhiman vs Tilak Raj Batra and Another

Kamlesh Sharma, J.—The Petitioner is one of the accused in a private complaint filed by Respondent No. 1, which is being tried by the Additional Chief Judicial Magistrate, Palampur, District Kangra. On receipt of summons to face trial under Sections 193 and 465, Indian Penal Code, the Petitioner earlier filed criminal revision No. 115 of 1995 contending that he could not be criminally proceeded on the basis of complaint of Respondent No. 1 without procuring sanction for his prosecution u/s 197, Code of Criminal Procedure While disposing of the said criminal revision on 25.9.1996 the learned Single Judge held that since the Petitioner had already presented himself before the trial Magistrate he may take the aforesaid objection before the trial Magistrate, who was directed to deal with it before proceeding further with the complaint. Now, by the impugned order dated 29.1.1998 the trial Court has decided against the Petitioner holding that there is no connection between the official duty of the accused and the offences alleged to have been committed by him under Sections 193 and 465, Indian Penal Code.

Since Respondent No. 1 has appeared in person, he was permitted to file written arguments and in response thereto learned Counsel for the Petitioner has also made written submissions.

It is alleged in the complaint of Respondent No. 1 that at the relevant time the Petitioner was posted as Block Development Officer, Panchrukhi-cum-Executive Officer, Panchayat Samiti, Panchrukhi, Tehsil Palampur, District Kangra. He in connivance with one Ramesh Bhau, the then Chairman, Panchayat Samiti, Panchrukhi fabricated false and forged documents in respect of the shops belonging to Panchayat Samiti, Panchrukhi to create an evidence that these shops stood allotted to Respondents No. 3 to 8 (in the impugned order) and possession thereof handed over to them in order to defeat the civil proceedings pending between the complainant and Panchayat Samiti, Panchrukhi and give undue benefit to Respondents 3 to 8.

Now the question arises whether the offences alleged against the Petitioner have been committed by him by acting or purporting to act in the discharge of his official duty, the cognizance whereof cannot be taken except with the previous sanction as provided u/s 197, Code of Criminal Procedure In answering this question reference to some of the judgments of the Supreme Court on Section 197, Code of Criminal Procedure will be relevant. In Matajog Dobey Vs. H.C. Bhari, after referring to the judgments in AIR 1939 43 (Federal Court); AIR 1944 66 (Federal Court); AIR 1948 156 (Privy Council); Shreekantiah Ramayya Munipalli Vs. The State of Bombay, and Amrik Singh Vs. The State of Pepsu, the learned Judges in para 19 have come to the conclusion that:

...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 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.

While answering the another question whether the need for sanction is to be considered as soon as the complaint is lodged and on the allegations therein contained, the learned Judges have held in paragraph 20:

...The question may arise at any stage of the proceedings. The complaint may not disclose that the Act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

The law laid down in Matajog Dovey v. H.C. Bhari (supra) has been further reiterated in Bhagwan Prasad Srivastava Vs. N.P. Mishra, ; Manohar Nath Kaul Vs. State of Jammu and Kashmir, ; R. Balakrishna Pillai Vs. State of Kerala, ; State through the 1997 (3) CTC 369 (SC) and Shambhoo Nath Misra Vs. State of U.P. and others, While interpreting the words ''acting or purporting to act in discharge of official duties'' it is consistently held in these judgments that umbrella of protection is available if the acts complained of constituting an offence are so integrally connected with the duties attaching to the office as to be inseparable from them but if there is no necessary connection between the acts complained of and the performance of those duties, the official status furnishes only the occasion or opportunities for the acts, then no sanction would be required.

In Manohar Nath Kaul v. State of Jammu and Kashmir (supra) the commission of offence of cheating or abetting another to cheat by a public servant has not been held to be while acting or purporting to act in the discharge of his official duty, as there is no necessary connection between the alleged offence and the performance of duty of a public servant though the official status furnished the public servant the occasion or opportunity for the commission of offence. In R. Balakrishna Pillai v. State of Kerala and Anr. (supra) the complained of acts were held directly and reasonably connected with the official duty of the Minister attracting the protection of Section 197(1) Code of Criminal Procedure who was accused of entering into criminal conspiracy with the co-accused and illegally selling electricity to an industry.

In State through the CBI v. B.L. Verma and Anr. (supra) the necessity of sanction u/s 197, Code of Criminal Procedure was found to be there as it was not disputed that the actions alleged against the accused before the Court lay within the scope of his official duties or at any event were allegedly committed in the purported discharge of his duties, though it was canvassed that he has abused his official position while discharging his duties. Similarly, in Shambhoo Nath Misra v. State of U.P. and Ors. (supra) while answering the question: when the public servant who is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc., can be said to have acted in discharge of his official duties, it is held in para 5 of the judgment that:

...It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge....

Now by examining the case in hand in the light of the law laid down by the Supreme Court in above referred to judgments, as per the allegations made in the complaint, the Petitioner who was posted as Block Development Officer at Panchrukhi and was ex-officio Executive Officer of Panchayat Samiti Panchrukhi and one Ramesh Bhau, the then Chairman, Panchayat Samiti Panchrukhi have allegedly committed the offences under Sections 193 and 465, Indian Penal Code by fabricating false evidence and making false documents i.e. written agreements for allotment of shops to Respondents 3 to 8 (in the impugned order), which cannot be held to be while acting or purporting to act in discharge of his official duty attracting Section 197(1), Code of Criminal Procedure

In this view of the matter this Court does not find any infirmity in the impugned order dated 29.1.1998 passed by Additional Chief Judicial Magistrate, Palampur, District Kangra and it is upheld and the criminal revision petition is dismissed. No costs. Records of the lower Court be sent back immediately.