Telangana High Court
Maj Gen Then Brig Gaurab Roy, Retired vs The State Of Telangana on 5 November, 2024
THE HONOURABLE SMT JUSTICE K. SUJANA
CRIMINAL PETITION No.6616 OF 2023
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioner/accused in CC.No.616 of 2022 on the file of the XI Additional Chief Metropolitan Magistrate, at Secunderabad, registered for the offences punishable under Sections 499, 500, 463, 464 and 465 of Indian Penal Code (for short 'IPC').
2. The brief facts of the case are that the petitioner is a retired Indian Army Officer, the then Brigadier, and the respondent No.2/de facto complainant is Brigadier in Indian Army. The respondent No.2 lodged complaint against the petitioner stating that the petitioner had been creating obstacles in his professional front with an intention to create barrier for his promotion. It was alleged by respondent No.2 that in order to create nuisance and trouble him, the petitioner had fabricated and created fake mess bill in the name of Sai Siddhartha Mess, Vasavi 2 SKS,J Crl.P.No.6616 OF 2023 Nagar, Secunderabad, for a sum of Rs.41,250/- and had also forged his signatures and that he had also filed representation against the respondent No.2 before superior authorities due to which the promotion of respondent No.2 was bunged.
3. On receipt of the said complaint, the Police registered case and investigated the matter. Upon completion of due investigation, the Police filed CC.No.616 of 2022 against the petitioner for the offences punishable under Sections 499, 500, 463, 464 and 465 of IPC. Aggrieved thereby, this criminal petition is filed.
4. Heard Sri B. Narsimha Sarma, learned Additional Solicitor General of India, appearing for Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, for petitioner, Sri S. Ganesh, learned Assistant Public Prosecutor, appearing for respondent No.1 - State, and Sri Vikram Ahooja, learned party-in-person/respondent No.2/de facto complainant.
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5. Learned Additional Solicitor General of India appearing on behalf of the petitioner submitted that the complaint and charge sheet lack basic ingredients to support allegations leveled against the petitioner under Sections 499, 500, 463, 464, and 465 of IPC and that the complaint was filed with ulterior motives and without any just and proper basis. He contended that the Police failed to investigate the truthfulness of allegations and failed to establish the involvement of the petitioner. He further contended that the Indian Army has an internal mechanism to address grievances by convening departmental inquiry, however, in the case of respondent No.2, the Department had not initiated any proceedings against the petitioner with regard to defamation and forgery, as alleged by respondent No.2.
6. In addition, the learned Additional Solicitor General asserted that the learned Magistrate had not adhered to Section 190 of Cr.P.C., which enables prior sanction as pre-requisite condition as the petitioner is working in Army in higher rank. He divulged that without conducting 4 SKS,J Crl.P.No.6616 OF 2023 investigation of any sort, the Police filed charge sheet alleging serious allegations against the petitioner with regard to forgery and fabrication. He lamented that Sections 499 and 500 of IPC are not sustainable against the petitioner in view of nullity barred under Section 199 of Cr.P.C., which also has a bar to the learned Magistrate from taking resort to the provisions contained in Section 156(3) of Cr.P.C., and directing the Police to register a crime and to investigate the offence as per Section 500 of IPC, as such, prayed this Court to allow the criminal petition, quashing the proceedings initiated against the petitioner in CC.No.616 of 2022 as grave prejudice is being caused to petitioner due to this false criminal complaint.
7. Per contra, learned Assistant Public Prosecutor appearing for respondent No.1 - State, submitted that on receipt of complaint from respondent No.2, the Police investigated the matter and during the course of investigation, the statements of LWs.2 to 4 who are owners of Sai Siddhartha Mess, stated that they never 5 SKS,J Crl.P.No.6616 OF 2023 issued any bill for a sum of Rs.41,250/- and that they were completely unaware of existence of bill in dispute. He contended that to wipe out the shadow of doubt with regard to forgery of signatures, the alleged forged signatures were sent to Telangana State Forensic Science Laboratory (for short 'TSFSL') for examination and as per the TSFSL report, variations between the signature in question and the specimen signature were found. He asserted that the allegations against the petitioner being of serious nature, the matter would require full-fledged trial, as such, prayed this Court to dismiss the criminal petition.
8. Learned party-in-person/respondent No.2 filed counter affidavit, sturdily opposing the contentions made by learned Additional Solicitor General, appearing for petitioner and relying on several judgments rendered by the Hon'ble Supreme Court. He contended that there is no requirement of any prior sanction under Section 197 of Cr.P.C., as forgery and fabrication of records for personal gains do not form part of official duties of public servant. 6
SKS,J Crl.P.No.6616 OF 2023 In support of the said contention, he relied on the judgment of the Hon'ble Supreme Court in the case of Station House Officer, CBI/ACB/Bangalore Vs. BA.Srinivas and Another 1. The relevant paragraph No.14 of the said judgment reads as under:
"14. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed "while acting or purporting to act in discharge of their official duty", but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. The statements of law in some of the earlier decisions were culled out by this Court in Inspector of Police v. Battenapatla Venkata Ratnam [Inspector of Police v. Battenapatla Venkata Ratnam, (2015) 13 SCC 87 : (2016) 1 SCC (Cri) 164] as under: (SCC pp. 89-90, paras 7-9) "7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them 'while acting or purporting to act in discharge of their official duty'. That question is no more res integra. In Shambhoo 1 2020 2 SCC 153 7 SKS,J Crl.P.No.6616 OF 2023 Nath Misra v. State of U.P. [Shambhoo Nath Misra v. State of U.P., (1997) 5 SCC 326 : 1997 SCC (Cri) 676] , SCC para 5, this Court held that: (SCC p.
328) '5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties.
It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the 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 the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court [Shambhoo Nath Mishra v. State of U.P., 1995 SCC OnLine All 492 :
(1995) 32 ACC 775] as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.'
8. In Parkash Singh Badal v. State of Punjab [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , at para 20 this Court held that: (SCC pp. 22-23) '20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from 8 SKS,J Crl.P.No.6616 OF 2023 criminal prosecution. However, there is an exception.
Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.' and thereafter, at para 38, it was further held that:
(Parkash Singh Badal case [Parkash Singh Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC (Cri) 193] , SCC p. 32) '38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.'
9. In a recent decision in Rajib Ranjan v. R. Vijaykumar [Rajib Ranjan v. R. Vijaykumar, (2015) 1 SCC 513 : (2015) 1 SCC (Cri) 714] , SCC at para 18, this Court has taken the view that: (SCC p. 521) '18. ... even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.' "
(emphasis in original)"
9. At this juncture, when an objection was raised by learned Additional Solicitor General with regard to passing 9 SKS,J Crl.P.No.6616 OF 2023 of subsequent judgment to the judgment as relied upon above, the learned party-in-person, in his defense, quoted that a reportable judgment passed by the learned Three Judge Bench of the Hon'ble Supreme Court cannot be over ruled by any subsequent judgment rendered by an equivalent Bench or by a lower Bench.
10. Learned party-in-person ensued with contending that the petitioner forged mess bill by using sources that are meant for photo-shop or any other dubious means and filed photocopy of the same with an intention to persuading the investigating agency to take action against him. He strongly lamented that as per the judgment of the Hon'ble Supreme Court in Budhu Ram Vs. State of Rajasthan 2 even if photocopy of forged document is used, the provisions of Section 471 would be attracted against the accused.
11. In addition to the above, with regard to the alleged forgery of mess bill, the learned party-in-person indefatigably contended that it is not the official duty of a 2 1962 SCC OnLINE SC 300 10 SKS,J Crl.P.No.6616 OF 2023 public servant to fabricate records and create false documents and quoted that "where a criminal act is performed under the color of authority, but in reality it is for the pleasure of public servant himself/herself or for any such benefit, the said acts shall not be protected under the 'DOCTRINE OF IMMUNITY'. In support of his contentions, he also relied upon the judgments rendered in the cases of Prakash Singh Badal Vs. State of Punjab 3 and Kamala Devi Agarwal Vs. State of West Bengal 4.
12. That apart, while concluding his submissions and praying this Court to dismiss this criminal petition, the learned party-in-person raised objections stating that learned Additional Solicitor General cannot represent learned Additional Deputy Solicitor General, for petitioner as it is private case of petitioner and the said designated counsel are not authorized to argue the matter. However, it was elucidated by the learned Additional Solicitor General that petitioner is being represented by him as the 3 1987 SUPP SCC 610 4 2000 SCC OnLine CAL 576 11 SKS,J Crl.P.No.6616 OF 2023 Office of Solicitor General is authorized and appropriate authority to do the same.
13. Having regard to the rival submissions made and on going through the material placed on record, it is noted that it is the specific grievance of the respondent No.2 that the petitioner had been creating obstacles in his professional front with an intention to give rise to hurdles for his promotion by filing several complaints against him before superior authorities and also by forging his signatures and creating false mess bill for a sum of Rs.41,250/-, whereas, the stand of petitioner is that the offences as alleged against him under Sections 499, 500, 463, 464 and 465 of IPC, fall under the set of exceptions laid down by the Hon'ble Supreme Court in the judgment rendered in State of Haryana Vs. Bhajanlal 5 and, on the contrary, it was the respondent No.2 who adopted illegal means to trouble petitioner by filing complaint against him. It is also the precise contention of learned Additional Solicitor General, appearing for petitioner that by 5 (1992) Supp (1) SCC 335 12 SKS,J Crl.P.No.6616 OF 2023 adherence to Section 197 of Cr.P.C., prior sanction is a pre-requisite condition to filing of complaint as the petitioner is an Army Officer working in higher rank.
14. Perusal of the contents of statements of witnesses would reveal that, allegedly, the petitioner had fabricated fake mess bill of Sai Siddhartha Mess, in the name of respondent No.2, and even forged his signature at the point of time when his promotion was very near so as to defame him. Further, LWs.2 to 4 who are owners of the said Sai Siddhartha Mess stated that they were completely unaware of the alleged forged mess bill and had even not recognized the disputed mess bill.
15. Further, the contention of the petitioner is that as there is no sanction as per Section 197 of Cr.P.C., the proceedings are liable to be quashed. Section 197 of Cr.P.C., reads as under:
"197. 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 13 SKS,J Crl.P.No.6616 OF 2023 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 6[save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]--
(a) 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 the Union, of the Central Government;
(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:
1[Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government"
occurring therein, the expression "Central Government"
were substituted.] 2[Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, 3[section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).] 14 SKS,J Crl.P.No.6616 OF 2023 (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. (3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
4[(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the 15 SKS,J Crl.P.No.6616 OF 2023 President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and 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."
16. In the case on hand, the allegation leveled against the petitioner is that he made complaint against respondent No.2 with forged documents to defeat his promotion avenues and the same cannot be considered as if he gave complaint while discharging official functions, as such, in view of the observation of the Hon'ble Supreme Court in Budhu Ram (supra 2) no sanction is required in the present case.
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17. At this stage, it is imperative to note that the High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a Court of appeal or revision. In several judgments, it was held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.
17.
18. In the present case, the alleged offences are under Sections 499, 500, 463, 464 and 465 of IPC. The main allegation against the petitioner is that the with the help of forged and fabricated mess bill, he lodged complaint against respondent No.2 to cause loss to him in promotion and obstructed his promotion avenues. Further, the Investigating Officer sent alleged document for FSL and 17 SKS,J Crl.P.No.6616 OF 2023 the FSL report says that there are variations. All these factual aspects cannot be decided in this petition. Whether, the petitioner fabricated the documents or not so as to prove the offences punishable under Sections 463 and 465 requires adjudication by the trial Court.
19. However, with regard to the offences punishable under Sections 499 and 500 of IPC, as alleged against the petitioner, it becomes just and proper to extract the said sections for the sake of convenience and the same read as under:
"499. Defamation.--Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
500. Punishment for defamation.--Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."18
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20. A cursor reading of the above extracted portion would show that the essential ingredients to attract offence under Sections 499 and 500 of IPC includes making or publishing any imputation concerning any person and that the said imputation must have been made with an intention to harm or having reason to believe that the imputation will harm the reputation of a person should not be allowed to have a free play to permit multiple points of territorial jurisdiction for the prosecution of a single offensive matter as that would place an unreasonable fetter on the exercise of right of free speech and expression of a person by oppressive litigation.
21. In the present case, it is seen that except alleging that the petitioner intends to defame respondent No.2 due to which he had forged signatures and fabricated mess bill, there are no specific allegations leveled against the petitioner so as to attract the said offences. That apart, there is bar under Section 199(1) Cr.P.C., 6 which intends 6 No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.19
SKS,J Crl.P.No.6616 OF 2023 to be a restriction on whoever may file a criminal complaint under Sections 499 and 500 IPC has to be narrowly construed so as to confer a meaning to the words "person aggrieved". As such, this Court is of the considered view that continuation of proceedings against the petitioner for the offences punishable under Sections 499 and 500 of IPC would amount to abuse of process of law.
22. In the result, this Criminal Petition is allowed in part, quashing the proceedings initiated against the petitioner in CC.No.616 of 2022 on the file of the XI Additional Chief Metropolitan Magistrate, at Secunderabad, for the offences punishable under Sections 499 and 500 of IPC. However, the trial Court is directed to proceed further for the remaining offences.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date:05.11.2024 PT