Maj Gen Then Brig Gaurab Roy, Retired vs The State Of Telangana
2024 Latest Caselaw 4293 Tel

Telangana High Court

Maj Gen Then Brig Gaurab Roy, Retired vs The State Of Telangana on 5 November, 2024

     THE HONOURABLE SMT JUSTICE K. SUJANA
         CRIMINAL PETITION No.6616 OF 2023


ORDER:

This Criminal Petition is filed under Section 482 of

the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.')

to quash the proceedings against the petitioner/accused

in CC.No.616 of 2022 on the file of the XI Additional Chief

Metropolitan Magistrate, at Secunderabad, registered for

the offences punishable under Sections 499, 500, 463,

464 and 465 of Indian Penal Code (for short 'IPC').

2. The brief facts of the case are that the petitioner is a

retired Indian Army Officer, the then Brigadier, and the

respondent No.2/de facto complainant is Brigadier in

Indian Army. The respondent No.2 lodged complaint

against the petitioner stating that the petitioner had been

creating obstacles in his professional front with an

intention to create barrier for his promotion. It was alleged

by respondent No.2 that in order to create nuisance and

trouble him, the petitioner had fabricated and created fake

mess bill in the name of Sai Siddhartha Mess, Vasavi

SKS,J Crl.P.No.6616 OF 2023

Nagar, Secunderabad, for a sum of Rs.41,250/- and had

also forged his signatures and that he had also filed

representation against the respondent No.2 before

superior authorities due to which the promotion of

respondent No.2 was bunged.

3. On receipt of the said complaint, the Police

registered case and investigated the matter. Upon

completion of due investigation, the Police filed CC.No.616

of 2022 against the petitioner for the offences punishable

under Sections 499, 500, 463, 464 and 465 of IPC.

Aggrieved thereby, this criminal petition is filed.

4. Heard Sri B. Narsimha Sarma, learned Additional

Solicitor General of India, appearing for Sri Gadi Praveen

Kumar, learned Deputy Solicitor General of India, for

petitioner, Sri S. Ganesh, learned Assistant Public

Prosecutor, appearing for respondent No.1 - State, and

Sri Vikram Ahooja, learned party-in-person/respondent

No.2/de facto complainant.

SKS,J Crl.P.No.6616 OF 2023

5. Learned Additional Solicitor General of India

appearing on behalf of the petitioner submitted that the

complaint and charge sheet lack basic ingredients to

support allegations leveled against the petitioner under

Sections 499, 500, 463, 464, and 465 of IPC and that the

complaint was filed with ulterior motives and without any

just and proper basis. He contended that the Police failed

to investigate the truthfulness of allegations and failed to

establish the involvement of the petitioner. He further

contended that the Indian Army has an internal

mechanism to address grievances by convening

departmental inquiry, however, in the case of respondent

No.2, the Department had not initiated any proceedings

against the petitioner with regard to defamation and

forgery, as alleged by respondent No.2.

6. In addition, the learned Additional Solicitor General

asserted that the learned Magistrate had not adhered to

Section 190 of Cr.P.C., which enables prior sanction as

pre-requisite condition as the petitioner is working in

Army in higher rank. He divulged that without conducting

SKS,J Crl.P.No.6616 OF 2023

investigation of any sort, the Police filed charge sheet

alleging serious allegations against the petitioner with

regard to forgery and fabrication. He lamented that

Sections 499 and 500 of IPC are not sustainable against

the petitioner in view of nullity barred under Section 199

of Cr.P.C., which also has a bar to the learned Magistrate

from taking resort to the provisions contained in Section

156(3) of Cr.P.C., and directing the Police to register a

crime and to investigate the offence as per Section 500 of

IPC, as such, prayed this Court to allow the criminal

petition, quashing the proceedings initiated against the

petitioner in CC.No.616 of 2022 as grave prejudice is

being caused to petitioner due to this false criminal

complaint.

7. Per contra, learned Assistant Public Prosecutor

appearing for respondent No.1 - State, submitted that on

receipt of complaint from respondent No.2, the Police

investigated the matter and during the course of

investigation, the statements of LWs.2 to 4 who are

owners of Sai Siddhartha Mess, stated that they never

SKS,J Crl.P.No.6616 OF 2023

issued any bill for a sum of Rs.41,250/- and that they

were completely unaware of existence of bill in dispute. He

contended that to wipe out the shadow of doubt with

regard to forgery of signatures, the alleged forged

signatures were sent to Telangana State Forensic Science

Laboratory (for short 'TSFSL') for examination and as per

the TSFSL report, variations between the signature in

question and the specimen signature were found. He

asserted that the allegations against the petitioner being of

serious nature, the matter would require full-fledged trial,

as such, prayed this Court to dismiss the criminal

petition.

8. Learned party-in-person/respondent No.2 filed

counter affidavit, sturdily opposing the contentions made

by learned Additional Solicitor General, appearing for

petitioner and relying on several judgments rendered by

the Hon'ble Supreme Court. He contended that there is no

requirement of any prior sanction under Section 197 of

Cr.P.C., as forgery and fabrication of records for personal

gains do not form part of official duties of public servant.

SKS,J Crl.P.No.6616 OF 2023

In support of the said contention, he relied on the

judgment of the Hon'ble Supreme Court in the case of

Station House Officer, CBI/ACB/Bangalore Vs.

BA.Srinivas and Another 1. The relevant paragraph No.14

of the said judgment reads as under:

"14. Again, it has consistently been laid down that the

protection under Section 197 of the Code is available to

the public servants when an offence is said to have

been committed "while acting or purporting to act in

discharge of their official duty", but where the acts are

performed using the office as a mere cloak for unlawful

gains, such acts are not protected. The statements of

law in some of the earlier decisions were culled out by

this Court in Inspector of Police v. Battenapatla

Venkata Ratnam [Inspector of

Police v. Battenapatla Venkata Ratnam, (2015) 13

SCC 87 : (2016) 1 SCC (Cri) 164] as under: (SCC pp.

89-90, paras 7-9)

"7. No doubt, while the respondents indulged in

the alleged criminal conduct, they had been working as

public servants. The question is not whether they were

in service or on duty or not but whether the alleged

offences have been committed by them 'while acting or

purporting to act in discharge of their official duty'.

That question is no more res integra. In Shambhoo

2020 2 SCC 153

SKS,J Crl.P.No.6616 OF 2023

Nath Misra v. State of U.P. [Shambhoo Nath

Misra v. State of U.P., (1997) 5 SCC 326 : 1997 SCC

(Cri) 676] , SCC para 5, this Court held that: (SCC p.

328)

'5. The question is when the public servant is

alleged to have committed the offence of fabrication of

record or misappropriation of public fund, etc. can he

be said to have acted in discharge of his official duties.

It is not the official duty of the public servant to

fabricate the false records and misappropriate the

public funds, etc. in furtherance of or in the discharge

of his official duties. The official capacity only enables

him to fabricate the record or misappropriate the

public fund, etc. It does not mean that it is integrally

connected or inseparably interlinked with the crime

committed in the course of the same transaction, as

was believed by the learned Judge. Under these

circumstances, we are of the opinion that the view

expressed by the High Court [Shambhoo Nath

Mishra v. State of U.P., 1995 SCC OnLine All 492 :

(1995) 32 ACC 775] as well as by the trial court on the

question of sanction is clearly illegal and cannot be

sustained.'

8. In Parkash Singh Badal v. State of

Punjab [Parkash Singh Badal v. State of Punjab, (2007)

1 SCC 1 : (2007) 1 SCC (Cri) 193] , at para 20 this

Court held that: (SCC pp. 22-23)

'20. The principle of immunity protects all acts

which the public servant has to perform in the exercise

of the functions of the Government. The purpose for

which they are performed protects these acts from

SKS,J Crl.P.No.6616 OF 2023

criminal prosecution. However, there is an exception.

Where a criminal act is performed under the colour of

authority but which in reality is for the public servant's

own pleasure or benefit then such acts shall not be

protected under the doctrine of State immunity.' and

thereafter, at para 38, it was further held that:

(Parkash Singh Badal case [Parkash Singh

Badal v. State of Punjab, (2007) 1 SCC 1 : (2007) 1 SCC

(Cri) 193] , SCC p. 32)

'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.'

9. In a recent decision in Rajib Ranjan v. R.

Vijaykumar [Rajib Ranjan v. R. Vijaykumar, (2015) 1

SCC 513 : (2015) 1 SCC (Cri) 714] , SCC at para 18,

this Court has taken the view that: (SCC p. 521)

'18. ... even while discharging his official duties, if

a public servant enters into a criminal conspiracy or

indulges in criminal misconduct, such misdemeanour on

his part is not to be treated as an act in discharge of his

official duties and, therefore, provisions of Section 197 of

the Code will not be attracted.' "

(emphasis in original)"

9. At this juncture, when an objection was raised by

learned Additional Solicitor General with regard to passing

SKS,J Crl.P.No.6616 OF 2023

of subsequent judgment to the judgment as relied upon

above, the learned party-in-person, in his defense, quoted

that a reportable judgment passed by the learned Three

Judge Bench of the Hon'ble Supreme Court cannot be over

ruled by any subsequent judgment rendered by an

equivalent Bench or by a lower Bench.

10. Learned party-in-person ensued with contending

that the petitioner forged mess bill by using sources that

are meant for photo-shop or any other dubious means and

filed photocopy of the same with an intention to

persuading the investigating agency to take action against

him. He strongly lamented that as per the judgment of

the Hon'ble Supreme Court in Budhu Ram Vs. State of

Rajasthan 2 even if photocopy of forged document is used,

the provisions of Section 471 would be attracted against

the accused.

11. In addition to the above, with regard to the alleged

forgery of mess bill, the learned party-in-person

indefatigably contended that it is not the official duty of a

1962 SCC OnLINE SC 300

SKS,J Crl.P.No.6616 OF 2023

public servant to fabricate records and create false

documents and quoted that "where a criminal act is

performed under the color of authority, but in reality it is for

the pleasure of public servant himself/herself or for any

such benefit, the said acts shall not be protected under the

'DOCTRINE OF IMMUNITY'. In support of his contentions,

he also relied upon the judgments rendered in the cases of

Prakash Singh Badal Vs. State of Punjab 3 and Kamala

Devi Agarwal Vs. State of West Bengal 4.

12. That apart, while concluding his submissions and

praying this Court to dismiss this criminal petition, the

learned party-in-person raised objections stating that

learned Additional Solicitor General cannot represent

learned Additional Deputy Solicitor General, for petitioner

as it is private case of petitioner and the said designated

counsel are not authorized to argue the matter. However,

it was elucidated by the learned Additional Solicitor

General that petitioner is being represented by him as the

1987 SUPP SCC 610

2000 SCC OnLine CAL 576

SKS,J Crl.P.No.6616 OF 2023

Office of Solicitor General is authorized and appropriate

authority to do the same.

13. Having regard to the rival submissions made and on

going through the material placed on record, it is noted

that it is the specific grievance of the respondent No.2 that

the petitioner had been creating obstacles in his

professional front with an intention to give rise to hurdles

for his promotion by filing several complaints against him

before superior authorities and also by forging his

signatures and creating false mess bill for a sum of

Rs.41,250/-, whereas, the stand of petitioner is that the

offences as alleged against him under Sections 499, 500,

463, 464 and 465 of IPC, fall under the set of exceptions

laid down by the Hon'ble Supreme Court in the judgment

rendered in State of Haryana Vs. Bhajanlal 5 and, on the

contrary, it was the respondent No.2 who adopted illegal

means to trouble petitioner by filing complaint against

him. It is also the precise contention of learned Additional

Solicitor General, appearing for petitioner that by

(1992) Supp (1) SCC 335

SKS,J Crl.P.No.6616 OF 2023

adherence to Section 197 of Cr.P.C., prior sanction is a

pre-requisite condition to filing of complaint as the

petitioner is an Army Officer working in higher rank.

14. Perusal of the contents of statements of witnesses

would reveal that, allegedly, the petitioner had fabricated

fake mess bill of Sai Siddhartha Mess, in the name of

respondent No.2, and even forged his signature at the

point of time when his promotion was very near so as to

defame him. Further, LWs.2 to 4 who are owners of the

said Sai Siddhartha Mess stated that they were completely

unaware of the alleged forged mess bill and had even not

recognized the disputed mess bill.

15. Further, the contention of the petitioner is that as

there is no sanction as per Section 197 of Cr.P.C., the

proceedings are liable to be quashed. Section 197 of

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

SKS,J Crl.P.No.6616 OF 2023

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 6[save as otherwise

provided in the Lokpal and Lokayuktas Act, 2013 (1 of

2014)]--

(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[Explanation.--For the removal of doubts it is hereby

declared that no sanction shall be required in case of a

public servant accused of any offence alleged to have

been committed under section 166A, section 166B,

section 354, section 354A, section 354B, section 354C,

section 354D, section 370, section 375, 3[section 376A,

section 376AB, section 376C, section 376D, section

376DA, section 376DB] or section 509 of the Indian Penal

Code (45 of 1860).]

SKS,J Crl.P.No.6616 OF 2023

(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.

4[(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 (43 of 1991), receives the assent of the

SKS,J Crl.P.No.6616 OF 2023

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."

16. In the case on hand, the allegation leveled against

the petitioner is that he made complaint against

respondent No.2 with forged documents to defeat his

promotion avenues and the same cannot be considered as

if he gave complaint while discharging official functions,

as such, in view of the observation of the Hon'ble Supreme

Court in Budhu Ram (supra 2) no sanction is required in

the present case.

SKS,J Crl.P.No.6616 OF 2023

17. At this stage, it is imperative to note that the High

Court in exercise of its powers under Section 482 Cr.P.C.

does not function as a Court of appeal or revision. In

several judgments, it was held that the inherent

jurisdiction under Section 482 Cr.P.C., though wide, has

to be used sparingly, carefully and with caution. The High

Court, under Section 482 Cr.P.C., should normally refrain

from giving a prima facie decision in a case where the

entire facts are incomplete and hazy, more so when the

evidence has not been collected and produced before the

Court and the issues involved, whether factual or legal,

are of wide magnitude and cannot be seen in their true

perspective without sufficient material.

17.

18. In the present case, the alleged offences are under

Sections 499, 500, 463, 464 and 465 of IPC. The main

allegation against the petitioner is that the with the help of

forged and fabricated mess bill, he lodged complaint

against respondent No.2 to cause loss to him in promotion

and obstructed his promotion avenues. Further, the

Investigating Officer sent alleged document for FSL and

SKS,J Crl.P.No.6616 OF 2023

the FSL report says that there are variations. All these

factual aspects cannot be decided in this petition.

Whether, the petitioner fabricated the documents or not so

as to prove the offences punishable under Sections 463

and 465 requires adjudication by the trial Court.

19. However, with regard to the offences punishable

under Sections 499 and 500 of IPC, as alleged against the

petitioner, it becomes just and proper to extract the said

sections for the sake of convenience and the same read as

under:

"499. Defamation.--Whoever, by words either spoken

or intended to be read, or by signs or by visible

representations, makes or publishes any imputation

concerning any person intending to harm, or knowing

or having reason to believe that such imputation will

harm, the reputation of such person, is said, except

in the cases hereinafter excepted, to defame that

person.

500. Punishment for defamation.--Whoever defames

another shall be punished with simple imprisonment

for a term which may extend to two years, or with

fine, or with both."

SKS,J Crl.P.No.6616 OF 2023

20. A cursor reading of the above extracted portion

would show that the essential ingredients to attract

offence under Sections 499 and 500 of IPC includes

making or publishing any imputation concerning any

person and that the said imputation must have been

made with an intention to harm or having reason to

believe that the imputation will harm the reputation of a

person should not be allowed to have a free play to permit

multiple points of territorial jurisdiction for the

prosecution of a single offensive matter as that would

place an unreasonable fetter on the exercise of right of free

speech and expression of a person by oppressive litigation.

21. In the present case, it is seen that except alleging

that the petitioner intends to defame respondent No.2 due

to which he had forged signatures and fabricated mess

bill, there are no specific allegations leveled against the

petitioner so as to attract the said offences. That apart,

there is bar under Section 199(1) Cr.P.C., 6 which intends

No Court shall take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf.

SKS,J Crl.P.No.6616 OF 2023

to be a restriction on whoever may file a criminal

complaint under Sections 499 and 500 IPC has to be

narrowly construed so as to confer a meaning to the words

"person aggrieved". As such, this Court is of the

considered view that continuation of proceedings against

the petitioner for the offences punishable under Sections

499 and 500 of IPC would amount to abuse of process of

law.

22. In the result, this Criminal Petition is allowed in

part, quashing the proceedings initiated against the

petitioner in CC.No.616 of 2022 on the file of the XI

Additional Chief Metropolitan Magistrate, at

Secunderabad, for the offences punishable under Sections

499 and 500 of IPC. However, the trial Court is directed to

proceed further for the remaining offences.

Miscellaneous applications, if any pending, shall

also stand closed.

_______________ K. SUJANA, J Date:05.11.2024 PT