Rajasthan High Court - Jodhpur

Labhchand vs State on 7 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 915/2015

Labhchand

----Petitioner Versus State

----Respondent

For Petitioner(s) : Mr. Sudhir Saruparia For Respondent(s) : Mr. Mukesh Trivedi, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

07/05/2022 . In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

Counsel for the petitioner submits that the matter is

squarely covered by the judgment rendered this Court in Hari

Ram Vs. State (S.B. Criminal Revision Petition No.946/2015,

decided on 21.04.2022). The judgment reads as under :-

"1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. These criminal revision petitions have been preferred claiming the following

reliefs:

In S.B. Criminal Revision Petition No. 944/2015:

"It is, therefore, humbly prayed that this revision petition may kindly be accepted and by a suitable order or direction Hon'ble Court may be pleased to:

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quash and set aside the impugned order dated 28.5.2015 passed by learned Special Judge, Sessions Court (Prevention of Corruption Case) Udaipur in criminal case no. 9/2009 (special sessions case) so as to discharge the petitioner.

Grant such further relief(s) which in the facts and circumstances of this case may do complete justice to the petitioner; and award cost of this revision petition to the petitioner."

In S.B. Criminal Revision Petition No. 945/2015:

"It is, therefore, humbly prayed that this revision petition may kindly be accepted and by a suitable order or direction Hon'ble Court may be pleased to:

quash and set aside the impugned order dated 28.5.2015 passed by learned Special Judge, Sessions Court (Prevention of Corruption Cases) Udaipur in criminal case no. 9/2009 (special sessions case) so as to discharge the petitioners.

Grant such further relief(s) which in the facts and circumstances of this case may do complete justice to the petitioners; and award cot of this revision petition to the petitioners."

In S.B. Criminal Revision Petition No. 946/2015:

"It is therefore respectfully prayed that this criminal revision petition may kindly be allowed and the impugned order dated 28.5.2015 passed by learned Special Judge, Sessions court (Prevention of Corruption Cases) Udaipur in criminal case no.9/2009 (special sessions case) so as to discharge the petitioner."

In S.B. Criminal Revision Petition No. 1075/2015: "Hence it is prayed that the petition may kindly be allowed and order dated 11.06.2015 may kindly be quashed and set aside and also accused-petitioners discharged from all the offences."

3. For the sake of brevity, the facts, in brief, are being taken from S.B.

Criminal Revision Petition No. 946/2015, while treating the same as the lead

case.

4. Brief facts of the case as placed before this Court by Mr.Manish

Shishodia, learned Senior Counsel assisted by Mr. Jaideep Singh Saluja;

Mr.L.D. Khatri and Mr. Sudhir Saruparia, learned counsel appearing on behalf

of the revisionist-petitioners are that an F.I.R., bearing No. 203/2001 was

registered against the revisionist -petitioners, for the offences under Section

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13(1)(d) / 13(2) Prevention of Corruption Act, 1988 and Sections Sections

420, 467, 468, 477A and 120-B I.P.C., and the learned Special Judge, Sessions

Court (Prevention Of Corruption Cases), Udaipur in Criminal Case No.

9/2009 passed the impugned order dated 28.5.2015 framing charges under the

above mentioned sections against the revisionist-petitioners.

5. Learned Senior Counsel submits that the aforementioned F.I.R. was

registered alleging that a quarry license was issued by the Mining Department

in favour of one Nirmal Kumar Jain for the Araji Nos. 168 to 176, 182 and

183 of Gram Aaroli and Araji Nos. 568 and 569 of Village Jadoli, and that the

land was allegedly irrigated land, but in connivance with one Shankarlal

(Patwari), the same was shown as non-irrigated / 'barrani' land, and issuance

of the alleged quarry license therefor was managed. It was also alleged that as

per the Rules governing the quarry license, a license for irrigated land could

not be issued.

5.1 Learned Senior Counsel also submits that the State Government

refused sanction to prosecute the then Mining Engineer, Fateh Karan Mehdu,

and therefore, charge sheet against him was not filed.

5.2 Learned Senior Counsel further submits that the Government of

Rajasthan, on 01.04.1991, had issued a policy for issuance of quarry licenses/

mining lease in agricultural 'khaatedari' land, and the same was published in

the Rajasthan Gazette on 05.04.1991 and that the same was assailed before

this Hon'ble Court in S.B. Civil Writ Petition No. 1811/1991 wherein the

implementation of the said policy was stayed vide order dated 21.05.1996.

And thus the requirement of mentioning classification of land was never fully

acted upon in pursuance of the policy of 1991, until 1998 when a new

notification requiring the same was issued.

6. Learned Senior Counsel for the revisionist-petitioners placed reliance on the

judgment of the Hon'ble Apex Court rendered in State of Madhya Pradesh Vs.

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Sheetla Sahai and Ors., (2009) 3 SCC (Cri) 901, wherein the following was

observed:-

"55. This leaves us with the question as to whether an order of sanction was required to be obtained. There exists a distinction between a sanction for prosecution under Section 19 of the Act and Section 197 of the Code of Criminal Procedure. Whereas in terms of Section 19, it would not be necessary to obtain sanction in respect of those who had ceased to be a public servant, Section 197 of the Code of Criminal Procedure requires sanction both for those who were or are public servants.

56. Strong reliance has been placed by Mr. Tulsi on a judgment of this Court in Centre for Public Interest Litigation and Anr. v. Union of India and Anr. (2005) 8 SCC 202. In that case, it was held:

"9. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has 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 the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent 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. 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

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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.

This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

10. 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 in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

11. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed"

57. Were the respondent Nos. 1 to 7 required to act in the matter as a part of official duty? Indisputably, they were required to do so. Be he an Executive Engineer, Superintending Engineer, Chief Engineer, Engineer- in-Chief, Secretary or Deputy Secretary, matters were placed before them by their subordinate officers. They were required to take action

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thereupon. They were required to apply their own mind. A decision on their part was required to be taken so as to enable them to oversee supervision and completion of a government project. The Minister having regard to the provisions of the Rules of Executive Business was required to take a decision for and on behalf of the State.

58. Some of the respondents, as noticed hereinbefore, were required to render their individual opinion required by their superiors. They were members of the Committee constituted by the authorities, viz., the Minister or the Secretary. At that stage, it was not possible for them to refuse to be a Member of the Committee and/or not to render any opinion at all when they were asked to perform their duties. They were required to do the same and, thus, there cannot be any doubt whatsoever that each one of the respondent Nos. 1 to 7 was performing his official duties.

59. For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure. It was so held by this Court in Sankaran Moitra v. Sadhna Das and Anr. (2006) 4 SCC 584. The question came up for consideration before this Court in Matajog Dobey v. H.C. Bhari AIR 1956 SC 44 : 1955 (2) SCR 925 wherein it was held:

17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in Section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance.

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."

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What we 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 possibly in excess of the needs and requirements of the situation. In Hori Barn Singh v. Crown Sulaiman, J. observes:

"The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction."

The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at p. 187:

"There must be something in the nature of the act complained of that attaches it to the official character of the person doing it."

In affirming this view, the Judicial Committee of the Privy Council observe in Gill case:

"A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty ... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office."

Hori Ram case is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. King-Emperor but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by Section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads v. King does not carry us any further; it adopts the reasoning in Gill's case.

60. The said principle has been reiterated by this Court in B. Saha v.

M.S. Kochar (1979) 4 SCC 177 in the following terms:

"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

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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. As pointed out by Ramaswami, J., in Baijnath v. State of M.P.,

"it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted". 18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. [See also R.

Balakrishna Pillai v. State of Kerala and Anr. (1996) 1 SCC 478]

61. In Rakesh Kumar Mishra v. State of Bihar and Ors. (2006) 1 SCC 557, this Court held:

"12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. 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. 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

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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. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant.

Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefore then the bar under Section 197 of the Code is not attracted."

62. Reliance has been placed by Mr. Tulsi on Parkash Singh Badal v. State of Punjab and Ors. (2007) 1 SCC 1 wherein this Court held:

"38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage."

63. In Prakash Singh Badal case, the appellant therein was charged for commission of an offence of cheating under Section 420 and Sections 467, 468, 471 and 120B of the Indian Penal Code. In the factual matrix involved therein, it was held:

"29. The effect of Sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In Sub- section (3) the stress is on "failure of justice" and that too "in the opinion of the court". In Sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. therefore, mere

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error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of Narasimha Rao case. Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act [Section 19(2) of the Act] question relates to doubt about authority to grant sanction and not whether sanction is necessary."

64. In State of Karnataka v. Ameerjan MANU/SC/7922/2007 : (2007) 11 SCC 273, it was held that an order of sanction is required to be passed on due application of mind.

Thus, in this case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.

65. For the reasons aforementioned, there is no merit in this appeal which is dismissed accordingly.

7. On the other hand, learned Public Prosecutor, while opposing the

aforementioned submissions made on behalf of the petitioners, submits that the

learned trial court, after taking into due consideration all the facts and circumstances

of the present case and after considering the evidence placed on record before it, has

rightly passed the impugned orders.

8. Learned Public Prosecutor also submits that the revisionist-petitioners,

Ashok Kumar is the beneficial partner, Shankarlal and Hazarilal were the Patwaris;

out of whom Hazarilal has passed away, Nirmal Kumar was the quarry

license/mining lease applicant and Hari Ram was the Mines Surveyor.

9. Learned Public Prosecutor also submits that the learned Court below has

rightly found that the irrigated land was shown as barren / non irrigated land and

that with the assistance of the Patwari, a forged Jamabandi was created through

which an application for a quarry license and allotment was made. And that, a

forged 'Mauka' report was created for the same.

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10. Learned Public Prosecutor further submits that the learned court below has

passed the impugned orders framing the charges against the petitioner wherein a

detailed analysis or a roving enquiry is not required at the stage concerned.

11. Learned Public Prosecutor harped upon the word "presumption" occurring in

Section 228 Cr.P.C. stating that if the Judge is of the opinion that a ground for

presumption of alleged offences against the accused lies after consideration and

hearing of the case, then charges can be framed against such accused person(s).

12. This Court is conscious of the decision rendered by the Hon'ble Apex Court

in Union of India (UOI) Vs. Prafulla Kumar Samal and Ors., (1979) SCC (Cri)

609, relevant portion of which reads as under:

"8. The scope of Section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar v. Ramesh Singh : 1977CriLJ1606 where Untwalia, J. speaking for the Court observed as follows :-

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence; if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

9. In the case of K.P. Raghavan and Anr. v. M.H. Abbas and Anr. : 1967CriLJ653 this Court observed as follows :-

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No doubt a Magistrate enquiring into a case under Section 209, Cr.P.C. is not to act as a mere Post Office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session."

13. The ratio decidendi laid down by the Hon'ble Apex Court in Prafulla

Kumar (supra), has received the judicial imprimatur of the Hon'ble Apex Court

through multiple subsequent judgments.

14. This Court further finds that at the stage of framing of charge, the learned

trial court is not required to conduct a meticulous appreciation of evidence or a

roving inquiry into the same, as was laid down by the Hon'ble Apex Court in the

judgments rendered in Ashish Chadha v. Asha Kumari and Ors (2012) 1 SCC 680

and State of NCT of Delhi and Ors. vs. Shiv Charan Bansal and Ors. (2020) 2

SCC 290.

15. This Court, therefore, finds that the judicial precedent laid down by the

Hon'ble Apex Court is clear, and that at the stage of framing of charge, the scope of

interference of a High Court, as a revisional Court is limited, that the Court must be

concerned only with whether there is suspicion against the accused, and not with the

proof of the allegation(s). And, as an exception to this, in the case of State of

Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335, the Hon'ble Apex Court

observed as under:-

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra- ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4 . Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 106. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding a high office

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and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of the complaint. In such a piquant situation, the question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions of the Indian Penal Code-namely Under Sections 182 or 211 or 500 besides becoming liable to be sued for damages."

16. On a perusal of the record, this Court concurs with the submission advanced

by the learned Public Prosecutor that the land in question, which was irrigated land,

was shown as barren/non-irrigated land, due to connivance with the then Patwari;

thereafter, a forged Jamabandi and Mauka report were created, which culminated

into issuance of the quarry license in question. Had there been no such connivance,

the license in question could not be issued.

16.1 This Court, on the strength of the aforementioned precedent laws, agrees

with the submission of the learned Public Prosecutor that at the stage of framing of

charge, a detailed analysis or a roving enquiry is not warranted.

17. This Court finds that the precedent law cited by the learned Senior Counsel

for the revisionist-petitioners does not lend any assistance to the petitioners' case.

18. In light of the aforesaid observations, this Court finds that the impugned