Sunil S/O Ramrao Paraskar vs State Of Maharashtra And Ors.
2006 Latest Caselaw 788 Bom

JUDGMENT

K.J. Rohee, J.

1. Rule made returnable forthwith. Heard finally by consent of parties.

2. By this application under Section 482, Criminal Procedure Code read with Articles 226 and 227 of the Constitution of India, the applicant seeks to quash the order of the Judicial Magistrate, First Class, 10th Court, Nagpur in SCC No. 681/2004 dated 5-12-2005 rejecting the application of the applicant under Section 258, Criminal Procedure Code for stopping the prosecution and the order of the 2nd Ad hoc Additional Sessions Judge, Nagpur confirming the said order in Criminal Revision Application No. 276/2006 on 5-6-2006.

3. In order to appreciate the grievance of the applicant it is necessary to see the background of the case in brief :

A party was hosted by Police Head Constable to celebrate his promotion. A Khansama was called for cooking food. The said Khansama was subsequently beaten by the policemen who participated in the said party. As a result of the beating the Khansama died. His dead body was brought to the National Highway and left there in order to make a show of accidental death. Initially accidental death under Section 174, Criminal Procedure Code was registered at Police Station, Buttibori (Nagpur). Subsequently offence under Sections 302, 201, Indian Penal Code was registered by Nagpur Rural Police. On the request of Nagpur Rural Police, investigation was transferred to State CID. The State CID (Crime), Nagpur investigated into the matter and closed the prosecution in 1995 praying for 'A' Summary. 'A' Summary was granted by the concerned Magistrate. Feeling aggrieved by the closer of the case the widow of the said Khansama filed Writ Petition No. 294/1996 before this Court. By order dated 14-3-1997 this Court directed that an offence should be registered against the respondents therein and any other persons. This Court also directed CID (Crime) Nagpur to file charge-sheet after completion of investigation within two months. Accordingly charge-sheet came to be filed against those persons for the offence punishable under Section 302 of Indian Penal Code. The Additional Sessions Judge, Nagpur acquitted the accused therein by judgment dated 31-7-1998.

4. In the same writ petition this Court issued notice to the present applicant and other police officers concerned with the investigation to show cause as to why appropriate action, in accordance with law, should not be taken against them for dereliction of official duty. This court further directed the State to launch prosecution against the applicant and others under Section 217 of Indian Penal Code and under any other relevant provisions of law. The investigating authority however came to the conclusion that no offence was committed by the applicant or others under Section 217 read with Section 34 of Indian Penal Code. Hence 'C' Summary was filed before the concerned Magistrate. The concerned Magistrate rejected 'C' Summary on 4-4-2002. Thereafter, reinvestigation was carried out by the State. A proposal for grant of sanction to prosecute the applicant and others was moved on 20-3-2003. The State, however, refused to grant sanction and communicated its decision by letter dated 24-8-2004. Despite refusal to grant sanction to prosecute, charge-sheet came to be filed against the applicant and others.

5. The applicant moved an application before the learned Magistrate for stopping the proceedings under Section 258 of Criminal Procedure Code. The said application was rejected by the learned Magistrate. The said order was confirmed by the revisional Court and hence the present application.

6. According to the applicant cognizance of the offence under Section 217 of Indian Penal Code cannot be taken by the Court in the absence of sanction under Section 197 of Criminal Procedure Code. Both the Courts below committed serious illegality in allowing the proceedings to continue which were untenable right at the very inception. Hence the impugned orders are sought to be quashed and set aside.

7. I have heard Mr. Avinash Gupta, Advocate for the applicant and Mr. K. S. Dhote, APP for the respondents/State through CID (Crime), Nagpur.

8. Mr. Gupta, the learned Counsel for the applicant, vehemently submitted that the offence under Section 217 of Indian Penal Code namely public servant disobeying direction of law with intent to save person from punishment or property from forfeiture, can be committed only by a public servant. The very nature of the offence under Section 217 of Indian Penal Code shows that it can be committed only by a public servant and none else. Mr. Gupta submitted that the offence can be committed only during the course of performance of his duty as public servant. Hence previous sanction under Section 197 of Criminal Procedure Code for prosecution of such public servant is necessary. In the absence of such sanction the Court cannot take cognizance of the offence.

9. In this respect Mr. Gupta relied on S.B. Hussain v. Emperor wherein it is held as under:

Section 217, Penal Code makes punishable a certain dereliction of duty quite apart from the question as to whether any bribe is paid to induce such dereliction. The dereliction must, clearly from the nature of the definition of the offence, be committed in the discharge of the functions of the person charged. Thus, the very nature of the offence under the section makes it clear that sanction for prosecution for this offence is clearly required.

Proceedings commenced in respect of the offence under Section 217 without first obtaining such sanction are null and void.

10. Mr. Gupta further relied on Sankaran Moitra v. Sadhna Das and Anr. , in which the Apex Court took review of several reported cases under Section 197 of Criminal Procedure Code. In the said case the observations in Shreekantiah Ramayya Munipalli v. State of Bombay about the scope of Section 197 and the object of it have been referred to. The relevant portion is to the effect that:

if it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official...Whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done; in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.

11. Pukhraj v. Stale of Rajasthan has been referred to in which it was observed that :

while the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty.

12. Rakesh Kumar Mishra v. State of Bihar has been referred to in which it was held that:

The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned.

13. Rizwan Ahmed Javed Shaikh v. Jammal Patel has been referred to in which it was held that:

The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected.

14. In order to stress his contention Mr. Gupta further relied on K.K. Patel and Anr. v. State of Gujarat and Anr. 2000 All MR (Cri) 1232 (SC) wherein it is held that :

the indispensable ingredient of the said offence is that the offender should have done the act "being a public servant". The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 of Indian Penal Code the pivotal ingredient is the same as for the offence under Section 166 of Indian Penal Code.

In my humble opinion the same analogy would apply to the offence under Section 217 of Indian Penal Code.

15. In this connection reference can be made to S.K. Zutshi and Anr. v. Bimal Debnath and Anr. in which it is held :

Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.

16. In the present case it has been alleged that the investigation in Crime No. 188/1993 was conducted under the supervision of the applicant and other Police Officers. It is alleged that they conducted the investigation dishonestly in order to screen the policemen responsible for causing the death of Khansama. In other words, it means that the applicant was responsible for dereliction of duty in not conducting the investigation honestly. It may be seen that disciplinary proceedings could have been initiated against the applicant for dereliction of duty. Thus the alleged inaction on the part of the applicant relates to an integral part of the official duty of the applicant.

17. Charge-sheet has been filed against the applicant for the offence under Sections 217 read with 34 of Indian Penal Code. From the case law cited above it is apparent that such an offence can be committed only by public servant during the discharge of his official duty. Hence previous sanction under Section 197, Criminal Procedure Code is absolutely necessary. In the absence of previous sanction the Court is not empowered to take cognizance of such offence against the applicant. Thus the Court acted without jurisdiction in taking cognizance of the offence against the applicant.

18. It was urged by Mr. Dhote, the learned APP that the applicant was not discharging his duty honestly and acted dishonestly in screening the offenders and hence sanction is not necessary. In view of the case law referred to above, this submission finds no support and is without any merit.

19. It was further contended by Mr. Dhote, the learned APP that since in an earlier writ petition this Court had issued direction to launch prosecution against the applicant and others, it is not necessary to seek sanction under Section 197, Criminal Procedure Code to prosecute the applicant.

20. The fallacy of this submission can be seen from the fact that after direction by this Court to prosecute the offenders, the prosecution moved the competent authority for grant of sanction under Section 197, Criminal Procedure Code. Had it not been necessary to seek sanction, the prosecution would not have moved the competent authority for grant of sanction. Once the prosecution has moved for obtaining sanction and no sanction was granted, a novel plea is set up that no sanction is required as this Court directed to prosecute the offender. It may be seen that the direction of this Court to prosecute the offenders cannot be resorted to give go-bye to the statutory provisions of Section 197, Criminal Procedure Code. This Court's direction to prosecute the offenders means that they should be prosecuted "in accordance with law" and not by surpassing the provisions of law. Once the prosecution sought sanction to prosecute the applicant and sanction was refused by the competent authority, the prosecution could not have filed charge-sheet against the applicant by saying that no sanction was necessary. It does not fit in the mouth of the prosecution to change its plea to suit its convenience.

21. In this connection it may be seen that mandamus cannot be issued to an authority to exercise its discretion in a particular manner. The authority in whom the discretion is vested under the Statute has to act independently and not under the instructions and orders of another authority. It may be noted that mandamus which is a discretionary remedy under Article 226 of the Constitution is required to be issued to compel performance of public duties which may be administrative, ministerial or statutory in nature. In the performance of this duty the authority has to exercise its own discretion which is vested in it under the Statute. This is what has been done in the present case by the competent authority while refusing sanction to prosecute the applicant. A reference can be made to the observations in Mansukhlal Vithaldas Chauhan v. State of Gujarat .

22. In the present case it seems that both the Courts below were under an impression that this Court had directed the State to prosecute the applicant and others and that is why no sanction under Section 197, Criminal Procedure Code was necessary. As stated earlier this approach is quite incorrect and cannot be upheld.

23. In the result I find that the prosecution filed against the applicant cannot proceed and it has to be quashed and set aside for want of sanction under Section 197, Criminal Procedure Code. Hence the order:

24. The application is allowed. The proceedings in SCC No. 681/2004 pending before Judicial Magistrate, First Class, Court No. 10, Nagpur against the applicant are quashed and set aside.

25. Rule is made absolute in the above terms.