Uttam S/O Patruji Khobragade vs Omprakash S/O Damodar Rawal And ...
2001 Latest Caselaw 346 Bom

JUDGMENT

R.K. Batta, J.

1. The complaint was filed by the non-applicant No. 1 against the present applicant for offences under sections 420, 465, 177 and 181, Indian Penal Code. By order dated 5-4-1988, Judicial Magistrate, First Class Malkapur, issued process against the present applicant under sections 420, 465, 177 and 181 of the Indian Penal Code, subject to the condition of deciding the question of sanction, if raised or contested at the later stage. This order of issue of process was challenged by the present applicant before the Sessions Court at Buldana by filing Criminal Revision Application No. 89 of 1988.

2. The learned Sessions Judge, Buldana vide judgment dated 16th December, 1988. allowed the revision, quashed issue of process and dismissed the complaint. Against this order, the non-applicant No. 1 filed Criminal Revision Application No. 45 of 1989 before this Court. By judgment dated 14-9-1989, the order passed by the learned Sessions Judge, Buldana, was quashed and set aside and the matter was remanded back to the J.M.F.C., Malkapur for deciding the issue as to whether sanction under section 197 of the Criminal Procedure Code is mandatory in the matter. In pursuance of these directions, J.M.F.C., Malkapur vide order dated 8-1-1999 held that sanction under section 197, Criminal Procedure Code is not mandatory in the matter. This order was challenged by the present applicant in this application and by order dated 21-2-2000, this Court disposed of the matter, in the light of the observations made therein. This order dated 21st February, 2000 was challenged by the present applicant before the Apex Court and the Apex Court vide order dated 3rd November, 2000 held that the High Court had not recorded any finding on the question of sanction and it would be appropriate that the High Court itself decides this issue instead of leaving it to be decided by the Trial Court. Accordingly, order dated 21st February 2000 of this Court was set aside by the Apex Court and this Court was asked to decide the question of sanction preferably within a period of six months from the date of receipt of the certified copy of the order. This order of the Apex Court was received by this Court on 14-12-2000 as can be seen from the noting made in the farad by the office and after hearing, the matter is being disposed of by this order.

3. Before proceeding ahead, I would like to point out that the issue of process had been challenged by the present applicant before the Sessions Court which had quashed issue of process. But, the said order of quashing of issue of process was set aside by this Court and the matter was remanded to J.M.F.C., Malkapur for deciding as to whether sanction under section 197 of the Criminal Procedure Code is mandatory in the matter. In this Criminal Revision Application No. 45 of 1989, the non-applicant No. 1 has challenged the setting aside of the order of issue of process by the Sessions Judge, Buldana, who had ordered the quashing of the issue of process. In these proceedings, the present applicant was served, but he did not remain present. Thus, in my opinion, the issue of process on the merits has attained the finality and this aspect cannot be examined in this application and the only question which is required to be decided relates to sanction. In fact, this Court in order dated 21-2-2000 has pointed out that in the previous round of litigation, the subject regarding issue of process appears to have been closed, but subject relating sanction seems to have been left

open and the short question that has been raised in this application is whether in the circumstances, sanction under section 197 of the Criminal Procedure Code for prosecution was not necessary.

4. In order to examine the question of sanction, it is necessary to refer to certain facts, on the basis of which J.M.F.C., Malkapur in order dated 5-4-1988 had stated that the issue of process against the present applicant was subject to the condition of deciding the question of sanction, if raised, or contested at the later stage. In the complaint, it was alleged that the scheme of Family Planning Operation is made applicable by the Government everywhere and as per this scheme, apart from other persons, whosoever promotes anybody for family planning operation, such promoter gets money from the Government and for the purpose of implementing the said scheme the Government had appointed concerned officers who are covered by the definition of public servant. It is further stated in the complaint that the work of promoting for family planning operation is not of the Government, but it is a private one and can be done by anyone. The complaint further alleges that by taking advantage of the aforesaid scheme, the present applicant on 22-2-1987, promoted for family planning operation a person, in false and fake name Kisan Sampat Gavale, resident of Ward No. 15, Malkapur. But, no such person exists and the present applicant by giving false and fake information, and by falsely showing the said person for having been operated for family planning, has fraudulently obtained Rs. 20/-. It is further alleged in the said complaint that the name of said Kisan Sampat Gavale is not included in the voters' list of Ward No. 15 of Malkapur Municipal Council. In these circumstances, it was alleged that the present applicant had committed offence under sections 420, 465, 177 and 181 of the Indian Penal Code.

5. When the process was issued by the Magistrate, the said complaint as also verification by the complainant alone was before him. It appears that in the Criminal Revision filed by the present applicant before the Sessions Judge, Buldana, two affidavits were filed by the present applicant. The said affidavits are stated to be of said Kisan Sampat Gavale as also Gajanan Onkar Jadhav, Assistant Surgeon, Municipal Hospital, Malkapur. These affidavits are dated 5-5-1988. The affidavit which is stated to be of Kisan Sampat Gavale stated that he was operated for Vasectomy in Government Hospital, Malkapur and he was promoted for operation by the present applicant. The affidavit which is stated to be of Gajanan Onkar Jadhav, Assistant Surgeon, Municipal Hospital. Malkapur, states that he had operated the person by name Kisan Sampat Gavale, resident of Malkapur for vasectomy and issued him certificate for it and said Kisan Sampat Gavale was promoted by the present applicant. In fact, it was on the basis of production of these affidavits that the Sessions Judge, Buldana had quashed the process. This Court in Criminal Revision Application No. 45 of 1989 has stated that the observations made by the learned Sessions Judge on the assumption that affidavit filed by Shri Gavale was taken for granted being genuine is correct and it is on the basis of acceptance of the same learned Sessions Judge has come to the conclusion that no prima facie case is made out. This Court had, therefore, directed the Trial Court to decide as to whether under section 197 of the Criminal Procedure Code was mandatory in nature.

6. It is in this set of facts that the question of sanction has to be examined.

7. Learned Advocate for the applicant urged before me that the facts and circumstances, sanction is necessary in order to prosecute the applicant who is a public servant. He placed before me the scheme under which the applicant is alleged to have acted as promoter. He, therefore, contends that for want of sanction, the proceedings are required to be quashed.

8. On the other hand, learned Advocate for the non-applicant No. 1 has urged before me that even though government servant acted as motivator for implementing the scheme yet he does so in his private capacity and as such sanction is not required. However, the main contention of non-applicant No. 1 is that no such person by the name of Kisan Sampat Gavale exists and the present applicant has, by falsely showing such non-existing person, collected Rs. 20/-. Insofar as process under sections 177 and 282, Indian Penal Code is concerned, the learned Advocate for the non-applicant No. 1 had filed pursis before the Trial Court that the complainant did not desire to prosecute his complaint under the said sections of the Indian Penal Code. Therefore, according to him, the offences of 420 and 465 which are disclosed in the complaint do not call for sanction since the present applicant could not be said to have acted in the capacity of discharge of his official duty while committing the said offences. He has placed reliance on a number of judgments which I shall make reference at a later stage.

9. Learned APP appearing on behalf of non-applicant No. 2, has stated that the present applicant has not acted in the discharge of public duty while implementing scheme of the Government inasmuch as motivator can be anybody. However, upon specific enquiry being made, the learned A.P.P. stated that the scheme is to be implemented through government servant to motivate others and a government servant can also act as a motivator in the discharge of his duties for which he is entitled to Rs. 20/- like other motivators. The fact that the motivator is entitled to incentive is not disputed by anyone.

10. In reply, learned Advocate for the applicant relied upon Nandu Zambaulikar v. Shrikant Naik and another, and Gauri Shankar Prasad v. State of Bihar and another. I shall now refer to the rulings upon which reliance has been placed by the parties as also law on the subject. The law on the question of sanction is well settled though the interpretation and implementation of the words "accused of any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duties" occurring in section 197 of the Criminal Procedure Code may present some difficulty. The principle underlying the provisions relating to sanction is that there must be reasonable connection between the act complained of and the duty of the officer as public servant, so that, if questioned, the officer may reasonably profess to have done the act in exercise or purported exercise of his official duty and the connection between the act and the official duty should be reasonable one and not merely a fanciful one. The official position should not have been used as a mere cloak to defend the act complained of.

11. Learned Advocate for the non-applicant No. 1 has relied upon number of authorities and I shall refer to them one by one. In Pukhraj v. State of Rajasthan and another, a complaint was filed for offences under sections 323 and 504 of Indian Penal Code. In this complaint, filed by a Clerk of Head Post Office, it was alleged that at time of arrival for inspection, the Post Master General kicked the complainant and abused him when the complainant was submitting his representation for cancellation of his transfer. It was held that the acts of the public servant so alleged could not be said to have been done in purported exercise of his duty. In this case, the Apex Court had referred to a number of judgments Including Matajog Dobey v. H. C. Bhart. In this case, the allegations were that official authorised in pursuance of warrant issued by Income-tax Commissioner in connection with certain pending proceedings before it had forcibly broken open the entrance door and went inside but some resistance was put. The said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him mercilessly causing injuries. A complaint in respect of the same was filed against the concerned officer. The Apex Court on these facts held that such a complaint cannot be entertained without sanction of competent authority as provided under section 197 of the Criminal Procedure Code. In this case, the Apex Court has laid, down-

"The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty.

It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What the Court must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possible in excess of the needs and requirements of the situation.

It is not always necessary that the need for sanction under section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.

Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case."

The observations of the Apex Court in the third and fourth paragraphs quoted above are very much relevant for the decision of the case under consideration. It has been laid down by the Apex Court that it is not always necessary that the need for sanction under section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained and the question may arise at any stage of the proceedings though initially the complaint may not disclose need for sanction yet the facts subsequently

coming to light during judicial inquiry or prosecution evidence at the trial, may establish the necessity for sanction. The Apex Court held that whether the sanction is necessary or not may have to be determined from stage to stage and the necessity may reveal itself in the course of progress of the case.

12 Learned Advocate for the non-applicant No. I then placed reliance on K. Satwant Singh v. The State of Punjab, wherein the accused was charged for cheating. The Apex Court has held that offences of cheating by its very nature cannot be regarded as having been committed by public servant while acting or purporting to act in the discharge of his official duty.

13. The next ruling upon which the reliance was placed is Baijnath and another u. State of Madhya Pradesh, in which it was held that sanction for prosecution of offence under section 409 of the Indian Penal Code is not necessary because the act of criminal misappropriation was not committed by the appellant while he was acting or purporting to act in the discharge of his official duties and that offence has no direct connection with the duties of the appellant as a public servant, and the official status of the appellant only furnished the appellant with an occasion or an opportunity of committing the offence.

14. Reliance has been next placed by the learned Advocate for non-applicant No. 1 on Shambhoo Nath Misra v. State of U.P. wherein the Apex Court had held that fabrication of record and misappropriation of public funds by public servant is not his official duty and sanction for his prosecution for alleged offence is not necessary. In this case, the accused was charged for offences under sections 409, 420, 465, 468, 477A and 109 of the Indian Penal Code. It was laid down by the Apex Court that it is not the official duty of a public servant to fabricate the false record and misappropriate the public funds etc, in furtherance of or in the discharge of his official duties. Though the official capacity only enables him to fabricate the record or misappropriate the public funds etc. yet it does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of same transaction.

15. In State of Kerala v. V. Padmanabhan Nair, the Apex Court has laid down that it cannot be said that for offences under sections 406 and 409 read with section 120B of Indian Penal Code sanction under section 197 of the Criminal Procedure Code is a condition precedent for launching the prosecution.

16. Learned Advocate for the non-applicant No. I has also placed reliance on two Judgments of the High Court. In G. P. Pedke v. Syed Javed Ali, an Inspector of Police had abused person who wanted to file complaint and it was held that use of filthy abuses is not an act connected with discharge of official duty and if proved would amount to an offence for which sanction to prosecute is not necessary. Other judgment is D. V. Venkateswara

Rao v. State of Andhra Pradesh and Anr., wherein a Deputy Civil Surgeon had, issued a false medical certificate for being used as alibi by an accused and it was held that the said act cannot be said to have been done in the discharge of official duty and as such prosecution for offence under Section 218 of the Indian Penal Code was permissible without obtaining any sanction.

17. In reply, learned Advocate for the applicant had placed reliance on two rulings. In Gauri Shankar Prasad v. State of Bihar and Anr. a Sub-Divisional Officer in P.W.D. was asked by the family members of the complainant to see the complainant who was treating patients in his clinic before carrying out removal of encroachment of wall. The Sub-Divisional Officer went into the clinic, started abusing in filthy language on account of which the complainant protested but the Sub-Divisional Officer took away the licensed gun of the complainant and further ordered him to be dragged out from the clinic which was obeyed by the Constables and since the complainant was a man of one leg, he fell down. Later, Sub-Divisional Officer carried demolition. In this set of facts, the Apex Court held that the acts complained of against Sub-Divisional Officer had reasonable nexus with official duty of the Sub-Divisional Officer and criminal proceedings could not be initiated against the applicant without obtaining sanction.

18. The next Judgment upon which reliance was placed by the learned Advocate for the applicant is Nandu Zambaulikar v. Shrikant Naik and Anr. wherein a Head Constable while resorting to lathi charge snatched the camera of a press photographer and caused damage to it. It held that the action of the Head Constable had nexus with official duty which may amount to an offence, but the same should be protected under Section 197 of the Criminal Procedure Code requiring prior sanction for prosecution.

19. I have already pointed out that at the time when the Magistrate had issued process against the present applicant, the material before him was the complaint and verification of the same. Though the complainant had stated that the action of the present applicant was in relation to the scheme of the Government yet he had committed the offence of cheating and forgery by showing a person who did not exist. It is in this set of facts that the Trial Court had observed that the process is issued subject to the condition of deciding the question of sanction if raised or contested at the later stage. The question of sanction was, therefore, left open by the Magistrate and when the Magistrate was directed by this Court vide order dated 14-9-1989 in Criminal Revision Application No. 45 of 1989 to decide whether sanction under Section 197, Criminal Procedure Code is mandatory in nature, the Magistrate vide order dated 8-1-1999 held that sanction is not mandatory. The learned Magistrate as in the said order observed that after remand of the matter for deciding the question of sanction, no material has been placed on record by the accused to show that the acts alleged him fell within the ambit of his official duty and no oral or documentary evidence placed on record to throw light on this point. Therefore, the learned Magistrate on the basis of material placed before him, found that sanction is not necessary. The stand taken by the accused is yet to be proved and in case the

applicant is prima facie able to establish his stand, then the question of sanction may arise. However, on the basis of material which was placed before the learned Magistrate, the conclusion of the learned Magistrate that sanction was not required can neither be said to be perverse nor can be faulted with. As I have already pointed out, the Apex Court in Matajog Dobey v. H. C. Bhari (supra) has laid down whether sanction is necessary or not may have to be determined from stage to stage and the necessity may reveal itself in the course of progress of the case.

20. Therefore, taking into consideration the material which was placed before the learned Magistrate and the fact that the defence stand that such a person really existed and had undergone Vasectomy is yet to be established. I am of the opinion that at this stage of the proceedings no sanction is required.

21. The application is accordingly dismissed at this stage.