Sohan Lal vs State of U.P. and Another

A.N. Dikshita, J.—By means of this application u/s 482 Code of Criminal Procedure Sohan Lal, the applicant has prayed for quashing the proceedings of Criminal case No. 968 of 1986 State v. Sohan Lal under Sections 420/218 IPC pending in the Court of Special Chief Judicial Magistrate, Allahabad and also for staying the proceedings in the case.

Briefly stated the facts of the case are that the applicant is employed as a peon (work andaaj) in Sharada Sahayak Khand 39, 18 Circle, Irrigation Works, Irrigation Department, U.P. since 3-2-1976. The applicant was directed from time to time for the reconciliation of the cheque with the Bank.

It is alleged that on 7th June 1985, the applicant was also directed to encash cheque No. 192668 which was drawn self and was endorsed in favour of the applicant Sohan Lal, at the back of the of the cheque, by the Executive Engineer concerned. It is alleged that the cheque was drawn for Rs. 1,124.95. On the presentation of the cheque at the counter of the State Bank of India, Main branch, on 7-6-85 the counter clerk Sunil Kumar of the State Bank of India, Allahabad suspected overwriting on the cheque showing that the cheque is for Rs. 11124.95. The applicant Sohan Lal was directed by the counter clerk to sign again on the back of the cheque in token of its presentation for encashment. Finding overwriting on the cheque, a first information report was lodged. After necessary investigation a charge sheet (police report) was submitted against the applicant and he was summoned by the trial Court.

Aggrieved, the applicant has filed this application u/s 482 Code of Criminal Procedure for quashing.

Learned Counsel for the applicant has strenuously submitted that the applicant is a government servant as enjoined u/s 21 of the Indian Penal Code. The relevant provision is reproduced herein below:

Section 21 x x x

Twelfth: Every person-

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government.

It has now to be extracted from the record as to whether the applicant is a government servant, or not and also whether while presenting the cheque for encashment before the State Bank of India; he was discharging his duties of a public servant as such. The applicant is admittedly an employee of Sharda Sahayak Khand 39 of 18 Circle Irrigation Works Irrigation Department, U.P. It is thus clear that he is employed in the services of the State Government. Learned Counsel for the applicant has further submitted that the applicant is a peon and had been directed by the Executive Engineer to get the cheque encashed. It is also manifest from the record and is not disputed that the Executive Engineer had sent the applicant for the encashment of the cheque. It is thus clear that the applicant was discharging his duties of a public servant at the behest and order of the Executive Engineer. Even in the past the applicant on more than several occasions was deputed for this duty by the Executive Engineer concerned. There is no doubt that the duty assigned to the applicant Sohan Lal in getting the amount withdrawn after the encashment of the cheque was in the official discharge of his duties. The applicant is thus a public servant.

Learned Counsel for the applicant has then vehemently urged that once it is found that the applicant is a public servant, the mandates of Section 197 Code of Criminal Procedure have not been complied with in the instant case. It has been submitted that prior sanction for initiation of proceedings against the applicant was not obtained and it was incumbent for the prosecution to have obtained the requisite sanction from the government as provided u/s 197 Code of Criminal Procedure paras 11 and 12 of the affidavit, filed in support of the application is quoted in extenso.

P-11. That the applicant is Class IV employee in the department of Sharda Sahayak Khand 30 at Allahabad. The applicant is Government servant permanent employee of Sharda Sahayak Khand 30 Allahabad.

P-12. That the applicant is a public servant and no sanction has been obtained as required u/s 197 Code of Criminal Procedure for the prosecution of the applicant.

While replying to above paragraphs (11 and 12) of the affidavit in the counter affidavit, it has been stated in Para 4 as under:

P-4. That in reply to the contents of paras 11 and 12 of the affidavit, it is stated that the crime and offence committed by the Petitioner was not a part of his official work and as such the question of any sanction u/s 197 is not attracted in this case. Moreover the applicant is not an employee on which the provision of Section 197 Code of Criminal Procedure shall be applicable....

It is, thus, apparent that no sanction as enjoined u/s 197 Code of Criminal Procedure has been obtained in this case. Section 197 Code of Criminal Procedure provides as under:

Prosecution of Judges and public servants: (1) 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) ....

(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.

A bare perusal of the provisions as enshrined u/s 197 Code of Criminal Procedure fortify the submission of the applicant that the sanction for the prosecution of the applicant was not in accordance with Section 197 Code of Criminal Procedure. The grant of sanction is not an idle formality, but is a solemn and sacrosanct act which affords protection to public servants against frivolous prosecution. Compliance of such provision has to be Strongly followed before any case can be launched against the concerned public servant. It was thus incumbent on the prosecution to have proved that a valid sanction had been granted by the sanctioning authority on being satisfied that a case has been made out constituting the offence. Grant of sanction removes the umbrella of protection to government servants against prosecution and as such the requirement as enjoined u/s 197 Code of Criminal Procedure has to be strictly complied with before the prosecution could be launched against the applicant. The policy apparently underlying the provisions of Section 197 is that a public servant should not unnecessarily be harassed-See C.R. Bansi Vs. The State of Maharashtra, .

It is well settled law that existence of a valid sanction is a prerequisite of taking of cognizance by Courts and it is incumbent on the Court before taking cognizance to require whether a valid sanction has been obtained to prosecute the public servant for the offences alleged to have been committed by him as a public servant. Such a view was taken in the case of R.S. Nayak Vs. A.R. Antulay, .

Any trial of a public servant without a valid sanction being prior obtained as required u/s 197 Code of Criminal Procedure has been held to be a trial without jurisdiction. See R.R. Chari Vs. State of U.P.,

In the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, , it was held that any case instituted without a proper sanction must fail because this being a manifest defect in the prosecution, the entire proceedings are rendered void ab initio. It was also held that in a criminal case the Supreme Court, or for that matter any Court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution.

Instantly learned Counsel for the opposite party has submitted that no sanction was required as the applicant is not covered within the meaning of Section 197 Code of Criminal Procedure. There is absolutely no merit in this contention in view of the above discussion that the prosecution of the applicant was not made in accordance with Section 197 Code of Criminal Procedure. Further the trial Court had no jurisdiction to take cognizance of the case. The order of the trial Court assuming jurisdiction is void ab initio for want of a sanction having been placed before it. Thus the order for the trial of the applicant is without jurisdiction, as was held by this Court in the case of Mohammad Safi Ullah Ansari v. State 1986 AWC 845.

In the case of Rewa Chand Khattar v. State of U.P. 1986 AWC 1076 it was held by me that "the grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirement must, therefore, be strictly complied with before any prosecution could be launched against a public servant." From the above discussion, it is manifestly clear that the applicant was a public servant and that no valid sanction has been obtained for his prosecution against the offences alleged.

The applicant has filed this application u/s 482 Code of Criminal Procedure which reads as under:

482 Code of Criminal Procedure: Saving of inherent powers of High Court:

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

The applicant has invoked the inherent powers of this Court to make such orders as may be necessary in order to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. It is also well settled that High Court would be reluctant to invoke its inherent jurisdiction except where it is found that the abuse of the process of Court has to be prevented or where it is necessary in order to secure the ends of justice. However, in the case of R.P. Kapoor v. State of Punjab 1960 SC 856 the Supreme Court in Para 6 of the judgment has elaborately observed:

Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court u/s 561A of the Code. The said Section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the Magistrate before whom the police report has been filed u/s 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the Appellant that his request for the quashing of the proceeding is not at the present stage covered by any specific provisions of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the, process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution, or continuance of the said proceedings the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance furnish cases under this category.

In view of the ratio laid in the case of R.P. Kapoor v. State of Punjab (Supra, this Court would be fully justified in quashing the proceedings on the ground that the requisite sanction is, not available. Learned Counsel for the opp. party has then submitted that the prosecution be given an opportunity to proceed according to law after obtaining a valid sanction, but in view of the observations of the Supreme Court in the case of Mohd. Iqbal Ahmad v. State of A.P. (Supra) this Court should not permit or direct fresh evidence to be brought on record to fill up a lacuna when the prosecution itself was vociferously contending that neither the applicant is a public servant nor any sanction is required. It would tantamount to permit the prosecution to launch a fresh battle against the applicant. Further, it would be an exercise in futility after a laps of few years to permit initiation of fresh criminal or departmental proceedings against the applicant It would frustrate any useful purpose except that it would only aggravate the agony of the applicant. I find that no sacred or legal purpose would be achieved at this stage by granting permission sought for to initiate the proceeding after obtaining the requisite sanction. Such a view was taken by me in the case of Mohd. Safi Ullah Ansari v. State of U.P. as well as in the case of Rewa Chand Khattar v. State of U.P. Further the above view finds support from a decision of the Supreme Court in the case of S. Guin v. Grindlays Bank Ltd. 1986 ACR 117, where it was held that "After going through the judgment of the Magistrate and of the High Court we feel that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court." In view of the foregoing discussion, this application deserves to succeed and the trial of the applicant is liable to be quashed.

In the result, the application succeeds and is hereby allowed the trial of the applicant in Criminal case No. 968 of 1986 State v. Sohan Lal u/s 420/218 IPC is hereby quashed.