Sri Baliram Singh vs State of Bihar and Another

S.N. Jha, J.—The petitioner has moved this Court for quashing of an order dated 13-3-1984, whereby and whereunder the learned Additional Chief Judicial Magistrate, Barh, has issued processes against the petitioner and transferred the case to the Court of another judicial magistrate for trial.

The facts which led to the filing of this application, in short, are that a petition of complaint was filed before the learned Additional Chief Judicial Magistrate, Barh on 3-9-"1983 alleging, inter alia, that on the previous day i.e. 2-9-1983 at about 6.30 p.m. while the complainant being Secretary of the Workers Union of Electric Supply Union, Barh Subdivision was waiting near the Control Room after working hour to talk to the petitioner with regard to the pending demands, the petitioner abused him and threatened him with dire consequences as a reult of which his prestige was lowered down in the eye of general public.

The matter was enquired u/s 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for the sake of brevity and easy reference) and after enquiry, the impugned order was passed, which has been challenged in this application.

It is an admitted position that the petitioner is an Electrical Superintending Engineer working in Bihar State Electricity Board and on the relevant date he was posted as Superintending Engineer under Patna Electrical Circle. On the alleged date of occurrence the petitioner being the Superintending Engineer of the Circle had gone to inspect the Hathidah Electric Sub-Station as per instruction of the General Manager-cum-Chief Engineer, Central Bihar Area Electricity Board, Patna, since some complaints were received by him regarding irregularity committed by some staff of Hathidah Electric Sub-Station.

The learned counsel appearing on behalf of the petitioner has submitted that the order taking cognizance against the petitioner is bad in law because the petitioner being public servant under the Electricity Board should not have been prosecuted without obtaining sanction of the appropriate authority as required u/s 197 of the Code as well as under Sub-clause (2) of Section 56 of Electricity Act, 1910 (in short Electricity Act). According to the learned counsel under Sub-clause (2) of Section 56 of the Electricity Act, no cognizance can be taken against any member, officer and other employees of the Board except with the sanction of the appropriate authority.

In support of his contention the learned counsel has drawn my attention to the relevant provisions of the Electricity (Supply) Act, 1948 (hereinafter referred to as "the Supply Act" for the sake of brevity and easy reference), the Electricity Act and Section 197 of the Code.

u/s 81 of the Supply Act all members, officers and other employees of the Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be a public servant within the meaning of Section 21 of the Penal Code (in short "Penal Code") and Section 82 of the said Supply Act lays down that no suit, prosecution or other legal proceeding shall lie against any member or officer or other employees of the Board for anything which is in good faith done or intended to be done under this Act.

Section 56(1) of the Electricity Act has also laid down that no suit, prosecution or other proceeding shall lie against any public officer, or any servant of a local authority, for anything done, or in good faith purporting to be done, under this Act. Sub-section (2) reads as follows:

"No Court shall take cognizance of an offence under the Act, against a public officer except with the sanction-

(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government, and

(b) in any other case, of the State Government."

In that view of the matter, it is manifest that any member or officer and other employees of the Board is a public servant within the meaning of Section 21 of the Penal Code and if he is acting in good faith under the provisions of these acts shall not be prosecuted without obtaining the sanction, in the case of such persons employed in the affairs of the Union Government, from the Central Government, and in the case of the persons employed in connection with the State Government, from the State Government.

I have already indicated above that the petitioner is admittedly an officer of the Electricity Board, therefore, he is a public servant as defined u/s 21 of the Penal Code.

Section 197 of the Code also provides that 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 obtained from the Central Government or the State Government as the case may be. The object of this section is to guard against any vexatious proceedings against any public servant without securing the opinion of his superior authority as to whether there should be prosecution or not.

From a perusal of the complaint petition it appears that while the petitioner came near the control room, the complainant wanted to initiate talks with him regarding the demands of the workers and this infuriated the petitioner and he abused and threatened the complainant, as alleged in the complaint. As indicated above, the petitioner being a public servant as envisaged under the provisions of the Supply Act is entitled for certain protection which has been provided to such public servant u/s 56(2) of the Electricity Act and Section 197 of the Code.

From the statements made in the complaint petition it is clear that the petitioner has gone to visit the Hathidah Circle in the capacity of a public servant and while he was discharging his official duties, in course of the same, the occurrence is alleged to have taken place. Since the petitioner is a public servant within the meaning of Section 21 of the Penal Code as I have already indicated above, unless the sanction is obtained from the State Government for his prosecution for the alleged act done in discharge of his official duty, no Court shall take cognizance of an offence under this Act or Penal Code.

In support of his contentions, the learned counsel appearing on behalf of the petitioner has relied upon an unreported decision of the Division Bench of this Court in the case of Bahrul Hoda v. Dr. Mohammad Yaqub in Cr. Misc. No. 7133 of 1980 disposed of on 10th January, 1984 and a decision reported in Pancham Lal Vs. Dadan Singh,

In the case of Bahrul Hoda v. Dr. Mohammad Yaqub (supra), the petitioner No. 1 was a Junior Electrical Engineer under the Bihar State Electricity Board and the petitioner No. 2 was an Asstt. Electrical Engineer of the said Board who challenged the order of cognizance taken against them. Same point was raised on behalf of the petitioners that the order taking cognizance against them was bad in law because being public servant under the Electricity Board. the petitioner should not have been prosecuted without obtaining sanction as required under the provisions of the Electricity Act. Their Lordships after considering the facts and the circumstances of the said case came to the following conclusion:-

"In the aforesaid circumstances of the case, and in view of the provisions of Sections 20 and 56 of the Electricity Act read with Sections 81 and 82 of the Electricity (Supply) Act, the order taking cognizance against these petitioners cannot be supported in the eye of law." and accordingly the impugned order of the said case was set aside and the entire prosecution against the petitioners was quashed.

I have already referred to sub-clause (2) of Section 56 of the Electricity Act which provides that no cognizance can be taken against any member, officer or other employees of the Board except with the sanction of the appropriate Government.

In that view of the matter, the cognizance taken against the petitioner without sanction cannot be sustained in the eye of law and fit to be quashed.

In my view, this case is fully covered by the unreported decision in the case of Bahrul Hoda v. Dr. Mohammad Yaqub (supra).

On behalf of the State, it was submitted that the offence committed by the petitioner was not done while discharging his duty. Therefore, the question of obtaining sanction does not arise at all. According the the learned State counsel, even if the sanction is required, it can be obtained during the course of trial as well.

In reply the learned counsel appearing on behalf of the petitioner has drawn my attention to a decision in the case of Pancham Lal Vs. Dadan Singh, . In the aforementioned case the situation over the harvesting of the crop was tense as two groups were claiming the right to harvest the same crop. In that situation, the accused i.e. a public servant while deputed on the spot to control the situation flung and abused the leader of one group. It was held that the accused was acting in discharge of his duties while he uttered abuses.

It may be pointed out here that the petitioner had gone to inspect the Hathidah electrical sub-station as per the instruction of the General Manager-cum-Chief Engineer, Central Bihar Area Electricity Board and during the course of such visit, the alleged occurrence took place. From the complaint petition also it is clear that the occurrence is said to have taken place near the control room. Therefore, once it is held that the petitioner is a public servant and while he was discharging his official duties during which the alleged occurrence is said to have taken place, it is very difficult to hold that the alleged act was done not in the capacity of public servant but in capacity of private individual.

For the reasons stated above, the impugned order is set aside and the entire prosecution of the petitioner in Complaint Case No. 33/C/83 pending in the Court below is hereby quashed.

In the result, this application is allowed.