Rohit Sawa vs State of Jharkhand and Others

Rongon Mukhopadhyay, J.—Heard Mr. Shankar Lal Agarwal, learned counsel appearing for the petitioner and Mr. V.P. Singh, learned senior counsel appearing for the opposite party Nos. 2, 3 and 4 and Mr. V.S. Sahay, learned counsel appearing on behalf of the State.

In this application, the petitioner has prayed for quashing the order dated 09.07.2007 passed by the learned Sessions Judge, East Singhbhum at Jamshedpur in Cr. Rev. No. 45 of 2007 whereby and whereunder, the order dated 22.12.2006 passed by the learned Judicial Magistrate, Jamshedpur in C/1 Case No. 1138 of 2006 issuing processes against the accused persons for the offences punishable under Section 323, 504, 506 of the Indian Penal Code has been set aside.

It appears that a complaint case was instituted by the petitioner wherein, it was alleged that the complainant and his family members were getting the broken cement of the alley repaired, when the accused persons came there and questioned the complainant as to how the repair work was being carried on without there being any permission. It was alleged that the accused persons used abusive language and the accused No. 1 asked the petitioner to come to his office with the documents. It has further been alleged that when the petitioner went with the documents, the accused persons abused the petitioner and his brother and demanded Rs. 10,000/- from the petitioner for getting the work done.

After the complaint petition was filed an enquiry was conducted under Section 202 Cr.P.C. by examining the complainant on solemn affirmation and his witnesses and thereafter vide order dated 22.12.2006 cognizance was taken by the learned Judicial Magistrate, Jamshedpur for the offences punishable under section 323, 504 and 506 of the Indian Penal Code. Being aggrieved by the order dated 22.12.2006 by which, cognizance was taken for the offences punishable under Sections 323, 504 and 506 of the Indian Penal Code the accused persons filed a revision application before the learned Sessions Judge, East Singhbhum, Jamshedpur being Cr. Rev. No. 45 of 2007 in which an order was passed on 09.07.2007 allowing the revision application and setting aside the order dated 22.12.2006 passed by the learned Judicial Magistrate. This order is under challenge in this present application.

The learned counsel for the petitioner has submitted that the learned Judicial Magistrate has rightly taken cognizance vide order dated 22.12.2006 and the revisional court did not properly appreciate the allegations levelled in the complaint petition. It has further been submitted that during enquiry, all the witnesses examined on behalf of the petitioner has supported the occurrence and the revisional court completely misdirected itself in setting aside the order of cognizance passed by the learned Judicial Magistrate, Jamshedpur.

The learned senior counsel appearing on behalf of the opposite party Nos. 2, 3 and 4, on the other hand, has stated that bare perusal of the complaint petition does not reveal commission of any offence by the accused persons and the learned Judicial Magistrate, Jamshedpur had mechanically and without application of judicial mind had taken cognizance and the learned Sessions Judge exercising revisional jurisdiction had rightly set aside the order taking cognizance after properly appreciating the actual facts on record. He has further submitted that the present case is a counter blast to Jugsalai P.S. Case No. 242 of 2005 which was instituted by the opposite parties (O.P. Nos. 2, 3 and 4) in their official capacity as a Special Officer, Junior Engineer and Tax Daroga of Jugsalai Municipality against the petitioner. The learned senior counsel has also urged that even if the allegations are taken to be true in its entirety whatever acts were done by the opposite party Nos. 2, 3 and 4 the same were in discharge of their official duties and no sanction having been taken prior to taking of cognizance under Section 197 Cr.P.C. the prosecution in any way, automatically fails and the same has rightly been considered by the revisional court while setting aside the order dated 22.12.2006 passed by the learned Judicial Magistrate, Jamshedpur.

After hearing the learned counsel for the parties and after going through the records, I find that in the complaint petition itself mention has been made with respect to a complaint case which was filed earlier and which was sent to the police for instituting a case under section 156(3) of the Code of Criminal Procedure and in which a final report false was submitted against the petitioner and recommendation was also made to prosecute the petitioner for the offences punishable under section 182/211 of the Indian Penal Code. Apart from the above, the content of the complaint case substantiates the argument by the learned senior counsel for the opposite party Nos. 2, 3 and 4 inasmuch as the accused persons being the officials of Jugsalai Municipality were discharging their official duties and no prior sanction was obtained under Section 197 Cr.P.C. before taking cognizance vide order dated 22.12.2006.

The learned revisional court although has not considered in depth the object and purport of Section 197 Cr.P.C. in the backdrop of the case of the opposite party Nos. 2, 3, and 4 but even then the finding of the revisional court does not disclose any infirmity to cause any interference. In the case of Om Prakash and Others Vs. State of Jharkhand and Another, it was held thus:-

"32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood."

"41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea. At this point, in order to exclude the possibility of any misunderstanding, we make it clear that the legal discussion on the requirement of sanction at the very threshold is based on the finding in the earlier part of the judgment that the present is not a case where the police may be held guilty of killing Munna Singh in cold blood in a fake encounter. In a case where on facts it may appear to the court that a person was killed by the police in a stage-managed encounter, the position may be completely different."

In the case at hand the petitioner except for making some bald allegations against the opposite Party Nos. 2, 3 and 4 has not brought any evidence on record to establish that the action of the accused persons were indefensible, mala-fide and vindictive. In absence of any such evidence, the opposite party Nos. 2, 3 and 4 must be afforded necessary protection and sanction for prosecution under section 197 Cr.P.C. must be a precondition. Even otherwise, the complaint petition itself does not disclose any offence whatsoever so as to prosecute the opposite party No. 2, 3 and 4 for the alleged offences. The learned Sessions Judge, therefore, has rightly considered the factual and legal matrix while setting aside the order taking cognizance dated 22.12.2006.

In view of what has been discussed above, the order dated 09th July, 2007 passed in Cr. Rev. No. 45 of 2007 requires no interference.

Accordingly, the present application being devoid of any merit is, hereby, dismissed.