Bombay High Court
Dr. Kakasaheb S/O Adinath Dole, ... vs Prashant S/O Mahadeorao ... on 29 November, 2017
Bench: A.S. Chandurkar
APL15.12.odt 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO.15 OF 2012
APPLICANT: Dr. Kakasaheb S/o Adinath Dole, Aged
about 40 year, Occ-Service as Sub-
Divisional Police Officer, R/o Daryapur,
Tahsil-Daryapur, District-Amravati.
-VERSUS-
RESPONDENTS: 1. Prashant S/o Mahadeorao Nandurkar,
Aged about 32 yars, Occ-Service, R/o
Anjangaon Surji, Tahsil-Daryapur,
District-Amravati.
2. The State of Maharashtra through P.S.O.
Anjangaon Surji, District-Amravati.
Shri A. S. Mardikar, Senior Advocate with Shri S. G. Joshi,
Advocate for the applicant.
Shri A. B. Mirza, Advocate for the non-applicant No.1.
Ms. S. Haider, Addl. Public Prosecutor for the non-applicant no.2.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 30-10-2017.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 29-11-2017.
APL15.12.odt 2/13
ORAL JUDGMENT :
1. By this application filed under Section 482 of the
Code of Criminal Procedure, 1973, the accused in Regular
Criminal Complaint Case No.75/2011 has challenged the
order issuing process on the complaint filed by non-applicant
No.1.
2. Brief facts relevant are that non-applicant no.1 on
13-3-2011 lodged a report alleging commission of offence
punishable under Section 3(1)(x) of the Prevention of
Atrocities to Scheduled Castes and Scheduled Tribes Act,
1989 (for short, the said Act). According to non-applicant
no.1, he was working as a clerk in the college run by the
persons accused therein. It was his grievance that on 12-3-
2011 the said persons had abused the non-applicant no.1 in
the matter of his caste. Pursuant thereto the statement of the
non-applicant no.1 came to be recorded on 14-3-2011 by the
Sub-Divisional Police Officer. As the said Sub-Divisional
Police Officer was on leave, the applicant herein was directed
to investigate the offence. On 24-3-2011, the applicant visited
the office of the concerned college and directed non-applicant
APL15.12.odt 3/13
no.1 to remain present for recording his supplementary
statement. Accordingly, on 30-3-2011 the applicant recorded
supplementary statement of non-applicant No. l. Thereafter
on 13-4-2011, the non-applicant no.1 issued a letter to the
applicant in which it was stated that though the non-
applicant no.1 had stated that he desired to continue with his
earlier statement recorded on 14-3-2011, the applicant
recorded his supplementary statement. Though a period of
fourteen days had passed, the said statement was not given to
non-applicant no.1 for its perusal.
3. Thereafter on 30-4-2011, the non-applicant no.1
filed a complaint against the applicant for the offence
punishable under provisions of Section 3(ii)(vi) and Section 4
of the said Act along with Sections 217, 406, 463, 467 and
471 of the Penal Code. According to non-applicant no.1, the
supplementary statement dated 30-3-2011 was not of the
complainant and that it was not recorded according to his
say. This according to non-applicant no.1 resulted in
commission of offence punishable under said provisions. In
the said complaint, the statement of the non-applicant no.1
was recorded. On that basis, the learned Judicial Magistrate
APL15.12.odt 4/13
First Class was pleased to issue process against the applicant
for the offence punishable under the aforesaid provisions.
The applicant challenged this order dated 24-6-2011 passed
by the learned Magistrate before the Sessions Court. By
judgment dated 19-9-2011, the learned Judge of the Sessions
Court was pleased to maintain the order issuing process
under Sections 217, 463, 467 and 471 of the Penal Code.
However, the order issuing process under the provisions of
the Act of 1989 was set aside. Being aggrieved the applicant
has preferred the present criminal application.
4. Shri A. S. Mardikar, learned Senior Counsel for the
applicant submitted that in the absence of any valid sanction
under Section 197 of the Code the learned Magistrate could
not have taken cognizance of the alleged offence. It was
submitted that the allegations made against the applicant
were with regard to his alleged commission/omission while
recording the supplementary statement of non-applicant no.1
on 30-3-2011. The applicant had recorded that statement
while performing his duties as the Investigating Officer. The
act of recording this statement was in discharge of his official
duty and therefore the applicant was entitled for statutory
APL15.12.odt 5/13
protection in that regard. The duty of investigating the
offence and recording the statement of the complainant was
interlinked with the discharge of official work and there
could be no segregation of the two aspects. The applicant
had not done anything which was not beyond the duty of the
Investigating Officer and therefore the complainant ought to
have obtained sanction under Section 197 of the Code before
proceeding against him. In that regard the learned Senior
Counsel placed reliance on the decisions in Abdul Wahab
Ansari vs. State of Bihar and anr. 2001 ALL MR Criminal 183,
State of Orissa & Ors. vs. Ganesh Chandra Jew 2004 ALL MR
Criminal 1492 and D. T. Virupakshappa vs. C. Subash (2015)
12 SCC 231.
It was then submitted that no offence was also
made out under the provisions of Section 217, 463, 467 and
471 of the Penal Code. There was no question of the
applicant disobeying any direction of the law as to the way in
which he had to conduct himself as a public servant so as to
save some other person from legal punishment. There was
also no question of the applicant committing any forgery as
alleged. Both the Courts failed to take into consideration
APL15.12.odt 6/13
these aspects of the matter and therefore the proceedings
were liable to be quashed.
5. Shri A. B. Mirza, learned Counsel for non-
applicant no.1 - complainant supported the impugned order.
According to him, the statement of the complainant having
been recorded on 14-3-2011, there was no reason whatsoever
to record his supplementary statement as was done by the
applicant. The act as alleged amounted to abuse of the
authority given to the applicant as an Investigating Officer.
The entire object behind recording the supplementary
statement was to create material in favour of the accused
persons and therefore the alleged act not being part of his
official duty, sanction was not required to be obtained.
Placing reliance on the judgment of the Hon'ble Supreme
Court in Inspector of Police and anothr vs. Battenapatla
Venkata Ratnam and another (2015) 13 SCC 87 and
Choudhury Parveen Sultana v. State of W. B. and anr. 2009
Cr. L.J. 1318, it was submitted that there was no need to
obtain sanction when the act alleged was a result of abuse of
power and authority conferred on the accused. Hence, there
was no need to obtain sanction before proceeding against the
APL15.12.odt 7/13
applicant. The supplementary statement was likely to be
relied upon by the accused persons in support of their
defence and such act would result in weakening the case of
non-applicant no.1. It was therefore submitted that no
interference was called for with the impugned order.
Shri J. Y. Ghurde, learned Additional Public
Prosecutor for non-applicant no.2 also supported the
impugned order. He submitted that the supplementary
statement as recorded was not in accordance with the
statement made by non-applicant no.1. Therefore the alleged
act of the applicant was not in furtherance of his official
duties and for said reason it was not necessary to obtain
sanction.
6. I have heard the learned Counsel for the parties at
length and I have perused the material placed on record. In
the complaint as filed by non-applicant no.1 it is his
grievance that his statement was initially recorded on
14-3-2011 and the same indicated the correct picture. The
applicant while recording the supplementary statement on
30-3-2011 had merely stated that only certain points as
stated by the non-applicant no.1 were being noted. However,
APL15.12.odt 8/13
the non-applicant no.1 found that the said statement was not
recorded as per his say but it was prepared with a view to
favour the accused persons in Crime No.3022/2011. The
applicant as a public servant had recorded a false and
fabricated supplementary statement of the non-applicant
no.1. These are the contents of the complaint filed by non-
applicant no.1.
7. On a reading of the entire complaint it can be seen
that the initial statement of non-applicant no.1 was recorded
by the Sub-Divisional Police Officer on 14-3-2011. Thereafter
charge was given to the applicant herein and in that regard
the applicant conducted further investigation. During that
process the supplementary statement of non-applicant no.1
was recorded on 30-3-2011. The question therefore is
whether in these facts, sanction was required to be obtained
under Section 197 of the Code for proceeding against the
applicant.
8. In this regard the legal position that can be
deduced from the decisions relied upon by the learned
Counsel for the parties is that the offence alleged to have
been committed must have something to do or must be
APL15.12.odt 9/13
related in some manner with the discharge of official duty of
the accused. There must be a reasonable connection between
the act alleged and the discharge of official duty. The act
must bear such relation to the duty that the accused could lay
reasonable claim which is not fanciful that he did it in the
course of performance of his duty. The use of the expression
"official duty" implies that the act or omission must have
been done by the public servant in the course of his service
and that it should have been done in discharge of his duty. If
an act or omission is found to have been committed by a
public servant in discharge of his duty, then it must be given
liberal and wide construction so far as its official nature is
concerned. The act alleged must fall within the scope and
range of the official duties of the public servant concerned. If
there is a reasonable connection between the act alleged and
the duty performed, sanction would be necessary.
9. When the facts of the present case are viewed in
the light of the aforesaid legal position, it becomes clear that
the act alleged to have been committed while recording the
supplementary statement of the complainant has a direct
connection with the discharge of official duty by the
APL15.12.odt 10/13
applicant. In the complaint itself, it has been stated that the
applicant was a public servant and while acting in that
capacity he recorded a false supplementary statement not
according to the say of the complainant and without giving
an opportunity to the complainant of reading the same. I find
that there is a reasonable connection between the alleged act
of recording the said supplementary statement as the same is
purported to be done in the discharge of official duty. In
other words, while doing his official duty if the applicant
acted in excess thereof but there was a reasonable connection
between the alleged act and the performance of the official
duty, the excess would not be a sufficient ground to deprive
the application of the protection conferred by Section 197 of
the Code.
The decisions relied upon by the complainant are
clearly distinguishable. In Inspector of Police and another
(supra) the allegation against the accused persons was that
while working as Sub-Registrars they had conspired with
stamp vendors and document writers to gain monetary
benefits and resorted to manipulation of registers resulting in
wrongful gain to themselves and loss to the Government. In
APL15.12.odt 11/13
that context, it was alleged that the alleged indulgence of the
officers in cheating, fabrication of records or
misappropriation could not be said to be in discharge of the
official duty. Similarly, in Chaudhary Parvin Sultana (supra)
when the allegation was that the Dy. Superintendent of
Police had committed acts of extortion and criminal
intimidation while conducting investigation, said act was
found to be not part of the duty of the Investigating Officer.
These decisions therefore are of no assistance to the case in
hand. The facts of the present case clearly indicate that the
alleged act of preparing the supplementary statement which
according to the complainant was not according to his say
has reasonable connection with the discharge of official duty
by the applicant as the Investigating Officer. In that view of
the matter, I find that before taking cognizance of the
complaint, it was necessary for the complainant to have
obtained sanction under Section 197 of the Code. This aspect
of the matter has not been considered by both the Courts in
its proper perspective.
10. In so far as the submission that no offence
whatsoever punishable under Sections 217, 463, 467 and 471
APL15.12.odt 12/13
of the Penal Code was made out is concerned, the same
cannot be accepted at this stage. On a perusal of the
averments made in the complaint as well as the statement of
the complainant I am satisfied that the complaint does not
deserve to be dismissed at the threshold itself. It would be a
matter of trial for deciding whether the offence as alleged in
the complaint has in fact been made out or not. On a
complete reading of the complaint as well as the statement of
the complainant, at this stage the proceedings cannot be
quashed. To that extent the challenge to the impugned
order must fail.
11. In view of aforesaid discussion, the following
order is passed:
(a) The order dated 24-6-2011 passed by the learned
Judicial Magistrate First Class, Anjangaon Surji as well as the
order dated 19-9-2011 passed by the Sessions Court,
Achalpur in Criminal Revision No.60/2011 is set aside.
(b) It is held that it would be necessary for the
complainant to obtain sanction under Section 197 of the
Code before proceeding further in the complaint proceedings
against the applicant. It would be open for the complainant
APL15.12.odt 13/13
to seek such sanction and till that stage the proceedings in
the complaint shall remain stayed. The learned Judicial
Magistrate First Class shall proceed further with the
complaint if necessary sanction is granted under Section 197
of the Code.
(c) It is clarified that observations made are only for
deciding the present application.
12. The criminal application is partly allowed in
aforesaid terms with no order as to costs.
JUDGE
/MULEY/
