Th. Ashwani Singh vs Jeet Lal Gupta

Nirmal Singh, J.—Ist Additional Sessions Judge, has referred this matter on a revision filed by Thakur Ashwani Singh, by passing the

following order:

The conclusion that can be drawn, is that the Ld. Magistrate has not recorded any reason to justify his conclusion, which is the basis of order

impugned. The Ld. Magistrate has reached a finding that sanction was necessary, without application of mind, which has resulted in an illegality.

The Ld. Magistrate should have left the question of sanction to be decided at trial or after concluding the trial, if he was of the view that the

commission of an offence was revealed. The ld. Magistrate has on the other hand, cut short the matter, without going into details, or without

knowing, what the respondents had to say in the matter. So I feel that the order impugned is based on an unsound footing and is not in conformity

with law. Same is so not sustainable. That being so, the impugned order deserves to be set aside.

The only point which was raised before the learned Sessions Judge was as to whether the learned Magistrate is competent to take cognizance,

without prior sanction of the competent authority.

Section 197 of the Code of Criminal Procedure reads as under:

Prosecution of Judges and public servants: (1) When any person who is Judge within the meaning of Section 19 of the Ranbir Penal Code or

when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the State Government or the

Government of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his

official duties, no Court shall take cognizance of such offence except with the previous sanction:

(a) in the case of persons employed in connection with the affairs of the Union, of the Government of India; and

(b) in the case of persons employed in connection with the affairs of the State, of the Government.

(2) The Government of India or the State Government, as the case may be, may determine the person by whom, the manner in which, the offence

or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the

trial is to be held.

Section 197 Cr.P.C has been interpreted by the Apex Court in Shreekantiah Ramayya Munipalli Vs. The State of Bombay, , by observing as

under:

Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for of course, it is no

part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official

act can be performed in the discharge of official duty as well as in dereliction of it. The sanction has content and its language must be given

meaning.

The Apex Court in Amrik Singh Vs. The State of Pepsu, , has further held as under:

If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction u/s 197(1)

would be necessary, but if there was no necessary connection between them and the performance of those duties, the official status furnishing only

the occasion or opportunity for the acts, then no sanction would be required.

Same view was reiterated by the Apex Court in Som Chand Sanghvi Vs. Bibhuti Bhusan Chakravarty, .

In B. Saha and Others Vs. M.S. Kochar, , the Supreme Court has interpreted Section 197 Cr.P.C, as under:

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) of the Code, or capable of a narrow as well as a wide interpretation. If these works 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

and 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), as act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said

provision. As pointed out by Baijnath Gupta and Others Vs. The State of Madhya Pradesh, , ""it is 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 of the Criminal Procedure Code will be attracted.

In view of these judicial pronouncements, without previous sanction, no Court can take cognizance of an offence against a public servant, when

the offence has been committed while acting or purporting to act in the discharge of official duty. So the facts of each case have to be taken into

consideration.

In the instant case the allegations in the complaint are that the a chunk of land measuring 5103 sq.ft. situate at Parade Ground, Jammu, was

leased out to him by the Municipality on 22.6.1985 on a monthly rent of Rs. 500/-. The complainant also purchased a double story building owned

by Pathankot Bus Stand and constructed a shed in the same premises. The Municipality passed an order through the accused officials and

demanded rent at the rate of Rs. 3/- per sq. ft from the complainant. Complainant filed appeal against this order before the J&K Special Tribunal,

which appeal was dismissed and a writ petition was filed by the complainant against that order and this Court on 16.12.2002 passed an order

directing the parties to maintain status quo. It was further pleaded in the complaint that though copy of order of this Court was produced before

respondent No. 2 along with a cheque of Rs. 24,000/- towards the rent at the rate of Rs. 500/- per month on 4.1.2003 but the respondent No. 2

directed to complainant to approach respondent No. 3. When the complainant approached respondent No. 3, he refused to accept the order as

well as the cheque. The complainant thereafter send the rent through registered post. It is pleaded that in violation of the order of this Court,

accused sealed the premises of the complainant on 8.1.2003.

I have perused the complaint and the preliminary evidence led by the complainant from which it is established that respondents were acting in the

discharge of their official duty, therefore, the learned Magistrate has rightly not taken the cognizance against the respondents without prior sanction

of the competent authority but the observations of the learned Sessions Judge are palpably erroneous as he has not applied his mind to the

evidence led by the complainant and has also erroneously relied upon Pukhraj Vs. State of Rajasthan and Another, and Raj Kishor Roy Vs.

Kamleshwar Pandey and Another, .

In view of the above the reference made by the learned Sessions Judge is declined.