Allahabad High Court
Nebbu Lal And Another. vs State Of U.P.& Another. on 31 August, 2017
Bench: Anil Kumar Srivastava-Ii
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved
Criminal Misc. Case No. 1818 of 2005 (Us/ 482 Cr.P.C)
1. Nebbu Lal, son of Sri Samodhi
Deputy Director of Consolidation,
District Ballia.
2. Pratap Singh Bhadoria,
Up Zila Adhikari, Mahmoodabad,
District Sitapur .........Petitioners
Vs.
1. State of U.P.
2. Anil Kumar Misra alias Raju
son of Sri Ram Dutt Misra,
Resident of village Bahorwa,
Police Station Tarianwan,
District Harodi ......Respondents
XXX
Hon'ble Anil Kumar Srivastava-II,J.
1. Heard Shri Anurag Kumar Singh, learned counsel for the petitioners, learned AGA and perused the record. None is present for the opposite party no. 2.
2. Instant petition under section 482 Cr.P.C. has been filed with the prayer to quash the order dated 2.11.2004 passed by the learned Additional Chief Judicial Magistrate, Hardoi in Case No. 4104 of 2005, Anil Kumar Mishra Vs. Pratap Singh Bhadauria, by which accused have been summoned to face trial under sections 147,148,149,323,325,342,504 and 506 IPC and also the order dated 28.6.2005, whereby non bailable warrants were issued against the accused. By means of amendment made in the petition on 31.7.2017, the petitioners have prayed for quashing of the entire proceedings of Case No. 4104 of 2004, Anil Kumar Mishra Vs. Pratap Singh Bhadauriya pending in the court of Additional Chief Judicial Magistrate, Court No. 4, Hardoi.
3. Learned counsel for the petitioners submits that a report was lodged by Jaipal Amin against one Anil Kumar Mishra and some unknown persons regarding incident which took place on 7.3.1997 at 3.00 p.m. which was registered at case crime no. 39 of 1997 at police station Tadiyawan, District Hardoi, wherein it is stated that on 7.3.1997, complainant alongwith Madan Lal, Collection Amin and Tehsildar P.N.Singh went to execute the arrest warrant and attachment warrant issued against Anil Kumar Mishra alias Raju for recovery of revenue wherein Anil Kumar Mishra alias Raju destroyed the government papers. Thereafter an application under section 156 (3) Cr.P.C. was moved by opposite party no.2 Anil Kumar Mishra alias Raju on 19.3.1997 regarding an incident dated 7.3.1997 stating that the petitioners alongwith other coaccuased attacked his house. They started abusing the complainant. When he came out of the house, Tehsildar asked him to deposit the amount of arrears of revenue. He was assaulted by the accused persons. Firing was also done and he was taken to the police station. On the basis of this application, first information report was lodged wherein after investigation, final report was submitted. Protest petition was filed, which was treated as complaint. Statements of the complainant and witnesses were recorded. Thereafter, learned Magistrate has summoned the accused petitioners and co-accused.
4. It is submitted that application under section 156 (3) Cr.P.C. is counter blast of the first information report lodged by the petitioners. It is further submitted that subsequently the complainant has deposited the arrears of land revenue amounting to Rs. 1361 and 80 paise on 3.5.1997. It is further submitted that no prosecution sanction was obtained and the impugned orders are bad in law.
5. Learned counsel for the petitioners has placed reliance upon the case of State of Orissa through Kumar Raghvendra Singh and others Vs. Ganesh Chandra Jew (2004) 8 SCC 40, Gauri Shankar Prasad Vs. State of Bihar and another (2000) 5 SCC 15, P.K. Choudhury Vs. Commander, 48 BRTF (Gref), (2008) 13 SCc 229, D.T. Virupakshappa Vs. C. Subash (2015) 12 SCC 231.
6. It is submitted that for want of sanction at the very initial stage cognizance could not be taken by the learned Magistrate, which is bad in law.
7. Section 197 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 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) 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) 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.
(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 , receives the assent of the 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."
8. Admittedly, the petitioners were acting in the discharge of their official duties as they went to the place of incident for recovery of arrears of land revenue.
9. In B. Saha V. M.S. Kochar, 3 (1979) 4 SCC 177, it was held in para 17 as under:-
"17. 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, are capable of a narrow as well as a wide interpretation. If these words 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 or 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), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision." (emphasis in original)
10. In the case of State of Orissa (Supra) the scope is so widened that it was held that official duty therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature.
11. In the case of Gauri Shanker Prasad (Supra), the petitioner was Sub Divisional Officer, who was present at the spot for removal of encroachment. Hon'ble the Apex Court referred and relied upon Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, (1998) 1 SCC 205, wherein it was held that :-
"The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicting that Section 197 (1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicted by this court in several cases that the question of sanction can be considered at any stage of the proceedings."
12. Question of sanction can be considered at any stage of proceedings. At any stage means stage when the cognizance is taken by the learned Magistrate.
13. In the case of P.K. Choudhury (Supra), Hon'ble the Apex Court has held in para 16, which is reproduced here below:-
"16. Section 197 of the Code unlike the provisions of the Prevention of Corruption Act postulates obtaining of an order of sanction even in a case where public servant has ceased to hold office. The requirements to obtain a valid order of sanction have been highlighted by this Court in a large number of cases. In S.K. Zutshi v Bimal Debnath (2004) 8 SCC 31 the Hon'ble Apex Court held (SCC p. 39, para 11).
"11. The correct legal position, therefore, is that an accused facing prosecution for offences under the old Act or the new Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date when the court took cognizance of the said offences. But the position is different in cases where section 197 of the Code has application." (emphasis adduced)."
14. Recently in the case of D.T. Virupakshappa (Supra), Hon'ble Apex Court has held in para 5, which is quoted below:-
"5. The question, whether sanction is necessary or not, may arise on any stage of the proceedings, and in a given case, it may arise at the stage of inception as held by the Hon'ble Apex Court in Om Prakash v. State of Jharkhand (2012) 12 SCC 72. To quote " (SCC p. 94, para 41).
" 41. The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea."
15. Keeping in view the facts of the present case admittedly the petitioners reached at the spot in discharge of their official duties to recover the arrears of land revenue, when they were acting in discharge of their official duties, protection as provided under section 197 Cr.P.C would come into play.
16. It is no doubt true that at the threshold interference by exercise of jurisdiction under section 482 Cr.P.C. has to be in very rare cases and this case appears to be of that nature. It fits in with category (7) of broad categories indicated in State of Haryana Vs. Bhajanlal, 1992 Suppl (1) SCC 335. The continuance of the proceedings by way of of prosecution in this case would amount to abuse of process of law.
17. Accordingly, the petition is allowed. Impugned orders dated 2.11.2004 and order dated 28.6.2005 and also the entire proceedings of Case No. 4104 of 2004, Anil Kumar Mishra Vs. Pratap Singh Bhadauriya pending in the court of Additional Chief Judicial Magistrate, Court No. 4 , Hardoi passed by the learned Additional Chief Judicial Magistrate, Hardoi are set aside.
Order Date :-31.8.2017
GSY [ Justice Anil Kumar Srivastava-II. ]
