IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 21/01/2004
CORAM
The Honourable Mr. Justice V. KANAGARAJ
Crl.O.P. No.20810 of 2003
and
Crl.M.P. No.5935 of 2003
M.K.G. Selvarajan ... Petitioner
-Vs-
State, rep. by the Deputy
Superintendent of Police,
Crime Branch, C.I.D., Metro,
Chennai - 600 002. ... Respondent
Petition filed under Section 482 of the Code of Criminal Procedure
praying for the relief as stated therein.
For Petitioner : Mr. N.R. Elango
For Respondent : Mr. A.N. Thambidurai,
Govt. Advocate (Crl. Side)
:O R D E R
The above Criminal Original Petition has been filed praying to
call for the records in C.C. No.9 of 2001 on the file of the Court of I
Additional Sessions Judge, City Civil Court, Chennai, and quash the same.
2. Tracing the history of the case, it comes to be known that
the petitioner was working as a Senior Bailiff in the City Civil Court during
the year 1994; that on a complaint filed by the Registrar, Small Causes Court,
a case was registered by the respondent-police in C.B. C.I.D. Metro Crime
No.7 of 1997 and a charge sheet was filed for an offence punishable under
Sections 466, 471 read with 466, 147, 451, 42 7 read with 120-B I.P.C.
against eleven accused, including the petitioner; that the petitioner is said
to have committed offences punishable under sections 147, 451, 380, 466, 471
read with 466 I.P.C.; that in the very same crime number, another final report
was filed citing the petitioner and another as accused alleging that the
petitioner had committed an offence punishable under Section 7 of the
Prevention of Corruption Act on the ground that the accused evicted one S.
Shanmugasundaram illegally from door No.17/1, Thakkudin Khan Bahadur Street,
Triplicane, and also obtained signatures of two persons by name Ramesh and
Kumar as witnesses for delivery of possession through one Babu; that the
respondent, before filing the charge sheet, obtained the sanction for
prosecuting the petitioner from the Appointing Authority under section
19(1)(c) of the Prevention of Corruption Act, 1988 and no sanction was
obtained under Section 197 Cr.P.C.; that taking cognizance of the offences
under the Indian Penal Code against the petitioner is not valid in law and
hence he would seek for the relief extracted supra.
3. The complaint against the accused is that on 24.12.1993,
the petitioner as the Senior Bailiff, while executing the Warrant of
possession at No.17/2, Thakkudin Khan Bahadur Street, Triplicane, in his
official capacity as public servant, with an intention to get bribe,
represented to A.2 Hussain, with whom the possession has to be handed over,
that he could not execute the warrants immediately; that thereafter, the said
Hussain took the petitioner inside the house and gave him Rs.10,000/= as
gratification to evict one Shanmugasundaram from the said house; that the
petitioner ordered forcible eviction of the said Shanmugasundaram from the
house bearing door No.17/2 and hence, committed an offence punishable under
Section 7 of the Prevention of Corruption Act, 1988.
4. The case of the petitioner is that based on the complaint
of the Registrar, Small Causes Court, Chennai, a case was registered by the
respondent for offences punishable under Sections 120-B, 147, 341, 4 47, 448,
427, 380, 161, 193, 196 and 199 IPC and a final report has been filed for
offences punishable under Sections 466, 471 r/w. 466, 1 47, 451, 427 r/w.
120-B IPC against 11 accused, including the petitioner. The petitioner
further submits that in the very same Crime number, another final report has
been filed citing the petitioner and another as accused for the offence
committed under Section 7 of the Prevention of Corruption Act. The contention
of the petitioner is that both the two charge sheets have been laid in the
case registered in one and the same Crime No.7/97, the first one by the Crime
Branch CID, Metro Wing taking up the investigation and the second one by the
High Court Vigilance Inspector of Police attached to the High Court Vigilance.
5. During arguments, the learned counsel appearing for the petitioner
would also cite the following judgments reported in
(i) 2000 SCC (Cri) 1202 (Surendra Pandey v. State of Bihar and
others)
(ii) 2000 SCC (Cri) 872 (Gauri Shankar Prasad v. State of Bihar and
another)
(iii) The Bombay Law Reporter 660 (Natwarlal Sakarlal Mody v. The
State of Bombay)
(iv) AIR 1999 SC 2405 (State of Kerala v. V.Padmanabhan Nair)
(v) 1998 SCC (Cri) 1(Suresh Kumar Bhikamchand Jain v. Pandey Ajay
Bhushan and others)
(vi) 2000(4) Crimes 152 (SC) (Abdul Wahab Ansari v. State of Bihar
and Anr.)
6. In the first judgment cited above it is held ‘the act complained
of is intrinsically connected with the discharge of the official duty. In
this view of the finding, it must be held that Section 197 CrPC. gets
attracted, even if the alleged act was in excess of the discharge of the
official duty.’
7. In the second judgment cited above it is held that ‘The object of
the section is to save officials from vexatious proceedings against Judges,
Magistrates and public servants but it is no part of the policy to set an
official above the common law. If he commits an offence not connected with
his official duty he has no privilege.’
8. In the third judgment cited above it has been held that ‘ Separate
trial is the rule and joint trial is an exception.’
9. In the fourth judgment cited above it is held that ‘An accused
facing prosecution for offences under the Prevention of Corruption Act cannot
claim any immunity on the ground of want of sanction, if he ceased to be a
public servant on the date when the court took cognizance of the said
offences.’
10. In the 5th judgment cited above it is held:
“The legislative mandate engrafted in sub-section (1) of Section 197 debarring
a court from taking cognizance of an offence except with a previous sanction
of the Government concerned in a case where the acts complained of are alleged
to have been committed by a public servant in discharge of his official duty
or purporting to be in the discharge of his official duty and such public
servant is not removable from his office save by or with the sanction of the
Government touches the jurisdiction of the court itself. It is a prohibition
imposed by the statute from taking cognizance, the accused after appearing
before the court on process being issued, by an application indicating that
Section 197(1) is attracted merely assists the court to rectify its error
where jurisdiction has been exercised which it does not possess. In such a
case there should not be any bar for the accused producing the relevant
documents and materials which will be ipso facto admissible, for adjudication
of the question as to whether in fact Section 197 has any application in the
case in hand. The question of sanction can be considered at any stage of the
proceedings.”
11. In the last judgment cited above it is held:
“On a plain reading of the provisions of Section 197 makes it crystal clear
that the Court is prohibited from taking cognizance of the offence except with
the previous sanction of the competent authority. There is no requirement
that an accused should wait for taking such plea till the charges are framed.”
On such arguments the learned counsel for the petitioner would pray to grant
the relief extracted supra.
12. On the other hand the learned Government Advocate would clarify
that though two different charge sheets one for the IPC offences and the other
for the commission of offence in one and the same crime under the Prevention
of Corruption Act, 1988 have been laid by the prosecution, still, it is up to
the trial Court to frame the charges according to the warranting provision of
law and therefore, it is up to the trial Court to frame the charges and
therefore, question of quashing of the charge sheet does not arise at all.
Regarding the sanction to be obtained under Section 197 Cr.P.C. the learned
Government Advocate would apprise this Court that it is not at all necessary
in the case of the petitioner and therefore, the sanction was not obtained.
On such arguments the learned Government Advocate would pray to dismiss the
above Criminal Original Petition.
13. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for both, this
Court is able to know that mainly on two grounds the petitioner has come
forward to file the above Criminal Original Petition firstly that dual charge
sheets have been filed in one and the same crime number for one and the same
offence, which cannot be sustained in law since two trials cannot be held nor
twice any accused could be punished for one and the same offence. The case in
hand particularly connecting the petitioner is nothing but one registered for
the commission of a very serious offence of forging the official documents and
making the forged document appears genuine etc., besides obtaining a bribe of
Rs.10,000/- for not executing the process of the Court and to evict a
different person in order to save the person who is to be evicted, by
manipulation of records wantonly and deliberately by the petitioner who was
working as the Senior Bailiff in the City Civil Court, Chennai during the year
1994, who has been charged for the offence punishable under Sections 466, 471
r/w 466, 147, 451, 427 r/w 120B IPC. among 11 accused besides becoming
punishable by another charge under Section 7 of the Prevention of Corruption
Act, 1988 and in fact the competent authority, the Principal Sessions Judge,
City Civil Court, Madras has accorded sanction for the petitioner to be
prosecuted under Section 19(1)(c) of the Prevention of Corruption Act and
therefore, the second contention of the petitioner is that the sanction
accorded by the competent authority is only pertaining to the case registered
against the petitioner under the penal provisions of the Prevention of
Corruption Act, 1988 and the same cannot be taken for granted serving the
purpose for prosecuting the petitioner under the other IPC Sections noted
above and it is incumbent on the part of the prosecution to obtain sanction
under Section 197 Cr.P.C. so far as prosecution of the petitioner under the
I.P.C. Sections are concerned since he is a Government servant protected
under the said provisions of law.
14. No doubt, Section 197 is designed for affording protection for
Public Servants but not all the public servants and not in every act indulged
in by a public servant. Limitations are there in this regard, firstly the
Section is applicable only to a Judge or a Magistrate or a public servant not
removable from his office save by or with the sanction of the Government
against the commission of offence while acting or purporting to act in the
discharge of his official duty.
15. First of all plainly it could be decided that the petitioner
being the Senior Bailiff is neither a Judge nor a Magistrate nor even a public
servant nor removable from his office except by or with the sanction of the
Government, he is a Government Servant who could be removed by the competent
authority.
16. At this juncture a little argument needs necessary; that even
decades back this question of sanction came up, before the Supreme Court based
on a maxim to the effect that every act done by the Government authority is
deemed to be the act of Government, since he derives the power only from the
Government and in his personal capacity. However, the Supreme Court gave
clarification and altered the maxim and clarified that in olden days all the
Government powers were heaped together with one or some hands, particularly
during monarchical regime every power had to be derived from the Government.
But now on account of Legislation of laws, it cannot be said that the
competent authority either for appointing or for removal of a Government
servant has to derive the power from the Government, but from the enactment
and therefore, the maxim could not be applied to cases of such nature as it is
one in hand.
17. The upper forums of law have gone further assessing the merit of
the cases falling under the protective coverage of Section 197 Cr.P.C. and
ultimately settled that the Section is applicable only to the commission of
lawful acts committed by the Government servants of that category in discharge
of his lawful duties and therefore, all acts purported to have been done by a
Government servant cannot be said to be in discharge of his lawful duties and
wherever acts with malicious intention have been indulged in particularly
wherever malice forms part of the act, or such acts done by a Judge or
Magistrate or a Government servant of that category who cannot be removed but
by the Government are not protected under Section 197 and therefore, no
sanction under this particular provision of law need be necessary. In short
it is only the lawful acts in discharge of the official functions which are
protected under Section 197 for the prosecution of which sanction is necessary
and not for those acts purported by the Judge or Magistrate or the public
servant in which malice is attached for the prosecution of which sanction is
not at all necessary.
18. These propositions have been long back held and followed in very
many decisions by the upper forums of law in general and by the Honourable
Apex Court in particular. While such being the position of law as per the
first proposition held regarding the status of those who have not been
mentioned in Section 197 Cr.P.C., as perk which it is only the Judges the
Magistrates and those public servants who could not be removed from out of
service, save by the Government are only entitled to claim the benefit of the
section and not every public servant such as the petitioner who could not be
said to be removed only by the Government and therefore, sanction under
Section 197 is not at all necessary for in the case registered against the
petitioner since the Section is not at all meant for such category of public
servants like the petitioner who could very easily be removed by the competent
authority who accorded sanction for the prosecution of the case registered
under the provision of the Prevention of Corruption Act that is by the
Principal Sessions Judge, City Civil Court, Chennai and therefore, needless to
mention that the petitioner cannot claim the benefit of Section 197 Cr.P.C.
since he does not fall within the ambit of the Section.
19. Secondly, the act perpetrated by the petitioner even though meant
for discharge of the official duty which has not been done in the legal manner
in due discharge of his official duty i.e. the execution of the process of
law but deviated from the official and lawful discharge of duties, since the
petitioner started indulging in acts malicious in nature, such of those
criminal acts indulged in by the petitioner are not attracted by Section 197
of Cr.P.C. and in short it could be said that the petitioner is not entitled
to seek protection under Section 197 Cr.P.C. which is meant only for
protecting those offences which arise in the course of the discharge of the
lawful duties and responsibilities in a lawful manner by such of Government
servants covered under Section 197 of Cr.P.C. who could not be removed from
out of service save by the Government and therefore, the sanction that is
sought to be required to have been obtained by the prosecution for prosecuting
the petitioner under the IPC Sections is not at all a requisite in the case in
hand since the sanction for the prosecution of a Government servant in general
is only required under the provisions of the Prevention of Corruption Act 1988
and since this has been complied with, the prosecution of the petitioner in
the manner that it has been dealt with is perfectly right and it is up to the
trial Court to decide the case on trial.
20. Regarding the dual charges alleged to have been placed before the
court it is not that the trial Court is going to act upon the said charges
since based on the available materials placed on record the lower Court is
bound to frame the charges based on which alone the trial will commence and
therefore, the filing of the charge by the police is not going to affect the
case in any manner and therefore, this Court does not find any valid or
tangible reason to cause its interference into the ongoing trial procedures
undertaken by the trial Court and hence the following order:
In result,
(i) the above Criminal Original Petition does not merit acceptance for
the forgoing reasons assigned and becomes only liable to dismissed and is
dismissed accordingly;
(ii) consequently, Crl.M.P.Nos.5932 and 5935 of 2003 are also
dismissed.
gr.
CRL.O.P.No.20810 OF 2003.
V.KANAGARAJ, J.
Immediately after pronouncement of the above order, the learned
counsel for the petitioner has a request to be made with the Court pertaining
to certain anomalies that may occur if the charge-sheets laid are allowed to
remain in the same condition.
2. Besides certain vital questions raised have already been
considered and determined by this Court, it is also thought fit to add that in
any event, any other such irregularity or error apparent on the face of the
charge-sheet or other vital aspect of the case the petitioner will be at
liberty to raise those points before the Court of trial either at the time of
framing of the charges and preliminary questioning or at the appropriate time
during the course of trial and the trial Court shall entertain such objections
and with due opportunity for the other side being heard, shall decide those
issues on merits and in accordance with law.
21.1.2004.
Rao
gr.
V.KANAGARAJ,J
To
1. The Deputy Superintendent of Police, Crime Branch, C.I.D., Metro,Chennai
– 600 002.
2. The I Additional Sessions Judge, City Civil Court, Chennai.