The Allahabad High Court, while dismissing a petition seeking the quashing of the summoning order against the accused under Section 465 IPC observed that acts like fabricating the document or misappropriating funds do not form part of the official duty of a public servant to claim protection under Section 197 CrPC.
Brief Facts:
The present petition was filed seeking the quashing of the summoning order dated 31.05.2014, under Section-465 IPC, Police Station-Chamanganj, DistrictKanpur Nagar and the entire proceeding of Complaint Case No.356 of 2014 (Om Prakash Agrawal Vs. V.P. Govil and others), pending in the court of MM-IV, Kanpur Nagar.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the applicant had retired as an Executive Engineer in 2010, and after his retirement, the impugned complaint was filed In 2014, and the summoning order was passed on 15.04.2014. Thereafter, the applicant, after obtaining bail, filed an application dated 19.06.2015 that complaint itself is barred for want of proper sanction u/s 197 Cr.P.C., which was heard on 01.09.2015, but disposal of same was postponed till the evidence stage and now after almost four years, the applicant has challenged the impugned criminal proceeding on the ground that prior sanction u/s 197 IPC was not taken before lodging the complaint above or before taking cognizance of the aforesaid complaint. It was further argued that without prior sanction u/s 197 Cr.P.C., the proceeding of the complaint case cannot be initiated.
Contentions of the Respondent:
The learned counsel appearing on behalf of respondent no. 2 submitted that once the applicant's application for dropping the proceeding on the ground want of prior sanction u/s 197 Cr.P.C. was rejected, that order has become final and the applicant cannot challenge the impugned proceeding on the same ground. The learned AGA furthermore submitted that the applicant also obtained bail in the impugned proceeding, he can raise this objection at the appropriate stage.
Observations of the court:
The court stated that it is clear that the applicant moved an application for dropping the proceeding on the ground that prior sanction u/s 197 Cr.P.C. was not obtained before filing the complaint and though that application was heard by the court on 01.09.2015, but disposal of the same was adjourned on the grounds of whether applicant's act of producing the allegedly forged disconnection slip dated 03.11.2008 is in the discharge of his official duty, which can be decided on the basis of evidence.
Further, the court referred to the decision of the court in the case of State of Orissa Vs. Ganesh Chandra Jew, wherein the court observed that protection u/s 197 Cr.P.C. had 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 objectionable acts and the question is not as to the nature of the offence such as whether the alleged offence contained an element that necessarily depends upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity.
Further, the court referred to the decision of the court in the case of Shambhoo Nath Mishra Vs. State of U.P. & Others, wherein it was held that whether a public servant who allegedly commits the offence of fabrication of records or misappropriation of public funds can be said to have acted in the discharge of his official duty and further observed that it is not the official duty to fabricate records or to misappropriate public funds.
It was stated by the court that the legal position is clear that whether the particular act of fabricating official documents is a part of the official duty of a public servant or not, is a matter of trial and the proceeding cannot be quashed on that basis and further stated that whenever there is a slight doubt whether the act or omission on the part of a public servant was in discharge of his official duty or not and unless that issue was decided on the basis of evidence during trial, the criminal proceeding cannot be quashed in the exercise of power u/s 482 Cr.P.C., mainly because a person claiming himself to be a public servant alleges that his act was in discharge of his official duty and the protection u/s 197 IPC is given to protect the public servant who bonafide performed any act in the discharge of his official duty not for all the act whether that act was part or not his official duty as there are number of acts which has been declared by the Apex Court which cannot be said to be part of the official duty like fabricating the document or misappropriation of funds.
The court stated that in the present case, prima facie, the accused's act cannot be said to be in discharge of his official duty and even otherwise, it is a matter of evidence and can be decided during the trial whether the applicant, while producing the forged disconnection slip, was performing his duty or it was beyond his duty to produce the forged disconnection slip as a defence in the proceeding before the consumer forum.
The decision of the Court:
The court dismissed the petition and upheld the impugned order.
Case Title: Ved Prakash Govil vs. State of U.P. and Anr.
Coram: Hon’ble Mr. Justice Arun Kumar Singh Deshwal
Case No.: APPLICATION U/S 482 No. - 21858 of 2019
Advocate for the Petitioner: Mr. Jainendra Kumar Mishra
Advocate for the Respondent: G.A., Mr. Nawal Kishor Mishra and Mr. Upendra Vikram Singh
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