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CR.MA/798/2008 23/ 24 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 798 of 2008
For
Approval and Signature:
HONOURABLE
MS. JUSTICE H.N.DEVANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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ANIL
PRATHAM, IPS NOW DIG STATE CID (CRIME) - Applicant(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
======================================
Appearance
:
MR IH SYED for Applicant(s) :
1,
PUBLIC PROSECUTOR for Respondent(s) : 1,
NOTICE SERVED BY DS
for Respondent(s) : 2,
MR KB ANANDJIWALA for Respondent(s) :
2,
======================================
CORAM
:
HONOURABLE
MS. JUSTICE H.N.DEVANI
Date
: 20/01/2010
CAV
JUDGMENT
1. By
this application under section 482 of the Code of Criminal Procedure,
1973, the applicant seeks quashment of Criminal Case No.2107 of 1992
pending before the learned Judicial Magistrate First Class, Bhuj as
well as the order issuing process on the ground that cognizance has
been taken by the learned Judicial Magistrate without there being any
prior sanction from the Government under section 197 of the Code.
2. The
facts stated briefly are that the applicant is an Indian Police
Service officer and at the relevant time was working as Assistant
Superintendent of Police, Bhuj. It is the case of the applicant that
on 15.07.1992, a public rally was organized by some local leaders of
a political party wherein the complainant was a participant. The
applicant was deputed for the police bandobust for the said rally.
During the course of the rally some miscreants tried to disturb the
law and order situation and at that time the police tried to stop the
mob by using due force. In connection with the incident a first
information report came to be registered against the
respondent-complainant and others vide Bhuj Police Station I-C.R.
No.151 of 1992 for the offences punishable under sections 143, 147,
148, 149, 332, 353, 336, 337, 186 of the Indian Penal Code and
section 135 of the Bombay Police Act, 1951. The police arrested the
complainant and others and produced them before the learned Judicial
Magistrate First Class Bhuj on the same day and all the accused were
released on bail. All the accused were subsequently charge-sheeted.
Upon conclusion of the trial, vide judgment and order dated
11.10.1995 passed by the learned Chief Judicial Magistrate,
Bhuj-Kutch, all the accused came to be acquitted.
3. On
16th
July, 1992, the respondent No.2 – complainant lodged a complaint
against the applicant in the Court of the learned Chief Judicial
Magistrate, Bhuj being Criminal Complaint No.2107 of 1992 alleging
commission of the offences punishable under sections 323, 504 and
506(1) of the Indian Penal Code. The allegations were to the effect
that on 15.7.92 at about 17:30 hours the complainant was walking near
the Collector s office in front of the District Court near Dr.
Ambedkar s statue, in the open space near the traffic point when
the applicant ACP all of a sudden got incited and started shouting
loudly saying catch him, and caught the complainant and belaboured
him with sticks and at that time other persons who were passing by,
namely, Anil Kumar Dalsukh Vitha, Dilip Jayantilal Joshi, Narendra
Haribhai Makwana and Kamlesh Bhagwanji Thakkar were also caught by
the accused and other police officers working under him and the
accused without any reasonable cause or reason belaboured the
complainant and others with sticks and caused injuries to them as
detailed in the complaint. After beating them, the police took the
complainant and others to the City Police Station and confined them.
The complainant was suffering from severe pain due to the beating and
Anil Kumar and Jayantilal were also suffering from severe pain due to
the beating and were even vomiting. The complainant and others were
wrongly apprehended and confined
and on account of the injuries sustained by them, they
required medical treatment. However despite making request they were
not provided any treatment nor were they given any food and late at
night the accused threatened them that if they complained about the
beating to anyone, they would be involved in false cases and would be
beaten even more. On account of the threats, when they were produced
before the Magistrate at night, they did not complain about the
ill-treatment.
4. On
the very same day that the complaint was lodged, the learned Chief
Judicial Magistrate recorded the statements of the complainant as
well as other witnesses on oath and directed issuance of process
against the applicant for the offence under sections 323 and 506(1)
IPC. It appears that the applicant filed an application in the Court
of the learned Judicial Magistrate First Class, Bhuj, to set aside
the complaint as prior permission had not been obtained under section
197 of the Code. The said application came to be rejected vide order
dated 30.9.2005 on the ground that the learned advocate for the
applicant was not present.
5. Yet
another application was filed by the applicant seeking discharge on
the ground that section 251 of the Code provides for recording the
plea of the accused, whereas in the present case no such plea was
recorded. The said application came to be rejected and a revision
application being Criminal Revision Application No.6 of 2007 came to
be filed before the Sessions Court. The revision application came to
be disposed of with a direction to the trial Court to call the
accused and record his plea on 18.7.2007. Thereafter, at the stage of
recording of his plea, the applicant moved an application challenging
the maintainability of the proceedings before the trial Court. The
said application came to be withdrawn as according to the applicant,
the only remedy available to him was to approach this Court by
invoking its inherent jurisdiction.
6. Mr.
I.H. Syed, learned advocate for the applicant invited the attention
of the Court to the complaint in question as well as to the contents
of the first information report lodged by the police against the
complainant in connection with the same incident which has given rise
to the complaint in question, to submit that the alleged offence was
committed during bandobust. It was submitted that a rally had been
taken out without permission and despite issuing warning, the crowd
did not disperse. The police tried to control the crowd with all
restraint, however, the persons forming part of the unlawful assembly
started pelting stones at the police officers engaged in the
bandobust, and hence a light lathi-charge had been carried out to
disperse the violent crowd. It was submitted that it is apparent that
the alleged offences are said to have been committed by the applicant
– accused while he was discharging duties as a public servant and,
therefore, the sanction of the State Government under Section 197 of
the Code would be a condition precedent to taking cognizance of the
offence against the applicant. However, the learned Magistrate has,
after recording statements of the complainant and witnesses,
straightaway taken cognizance of the offence despite the fact that
the requirements of Section 197 of the Code have not been complied
with. Reliance was placed upon the decision of the
Apex Court in S.K.
Zutshi and another vs. Bimal Debnath and another,
(2004) 8 SCC 31, for the proposition that Section 197 of the Code
falls under the Chapter dealing with
conditions requisite for initiation of proceedings. That is, if the
conditions mentioned are not made out or are absent then no
prosecution can be set in motion. The mandatory character of the
protection afforded to a public servant is brought out by the
expression no court shall take cognizance of such offence except
with the previous sanction . Use of the words no and shall
makes it abundantly clear that the bar on the exercise of power by
the court to take cognizance of any offence is absolute and complete.
The very cognizance is barred. That is, the complaint cannot be
taken notice of. A court, therefore, is precluded from entertaining a
complaint or taking notice of it or exercising jurisdiction if it is
in respect of a public servant who is accused of an offence alleged
to have been committed during discharge of his official duty.
7. The
learned advocate for the applicant invited the attention of the Court
to the provisions of Chapter XIV of the Code which provides for
Conditions requisite for initiation of proceedings , Chapter XV
of the Code which provides for Complaints to Magistrates and
Chapter XVI of the Code which provides for Commencement of
proceedings before Magistrates and more particularly to the
provisions of sections 190, 200 to 204 of the Code to submit that
taking cognizance is a pre-requisite for issuance of process under
section 204 of the Code. It was contended that in the facts of the
present case, the process has been issued, which presupposes that
cognizance has been taken. In the circumstances, the issuance
of process against the applicant is invalid as the learned Magistrate
could not have taken cognizance on such complaint. Reliance was
placed upon a decision of the Apex Court in Chief
Enforcement Officer vs. Videocon International
Limited, (2008) 2
SCC 492 for the proposition that Chapter XVI relating to commencement
of proceedings before Magistrates will apply only after the
cognizance has been taken by a Magistrate under Chapter XIV. Section
204 which provides for issuance of process and falls under Chapter
XVI would, therefore, come into play only after cognizance has been
taken by the Magistrate. It was submitted that Section 197 of the
Code expressly prohibits a Court from taking cognizance of an offence
committed by a public servant while acting or purporting to act in
the discharge of his official duty, except with the previous sanction
of the authority specified under the said provision. In the present
case, admittedly cognizance has been taken without any sanction
having been obtained, which is contrary to the provisions of Section
197 of the Code and as such, the learned Judicial Magistrate has no
jurisdiction to try the case. It was submitted that in the
circumstances, the Court can neither acquit nor convict the accused
and can only discharge the accused.
8. Next,
it was submitted that the present case is a summons triable case
inasmuch as all the offences are punishable with imprisonment not
exceeding two years, hence, in view of the decision of the Apex Court
in Adalat Prasad
vs. Rooplal Jindal,
(2004) 7 SCC 338, the
learned Judicial Magistrate has no jurisdiction to discharge the
accused. The only remedy which is, therefore, available to the
applicant is by way of
the present application under Section 482 of the Code. Reliance was
also placed upon the decision of the Apex Court in Balbir
Singh vs. State of Delhi,
(2007) 6 SCC 226 for the proposition that in absence of sanction, the
Court has no jurisdiction to proceed in the matter and take
cognizance of the offence.
But the order passed in that regard cannot lead to the acquittal of
the accused. The decision of the Apex Court in Subramanium
Sethuraman vs. State of Maharashtra,
(2004) 13 SCC 324, was also cited for the proposition that as
observed in Adalat Prasad case, the only remedy available to an
aggrieved accused to challenge an order at an interlocutory stage is
the extraordinary remedy under Section 482 of the Code and not by way
of an application to recall the summons or to seek discharge which is
not contemplated in the trial of a summons case. Lastly, the
attention of the Court was invited to the provisions of Clause (k) of
Section 461 of the Code to submit that the present case would fall
within Clause (k), hence, the cognizance taken by the Magistrate
would be an irregularity which would vitiate the proceedings.
9. Mr.
K.B. Anandjiwala, learned advocate for the respondent no.2
original complainant vehemently opposed the application. It was
submitted that the aspect regarding sanction can be considered at any
stage of the trial. It was argued that as to whether the offence has
been committed by the applicant during the course of discharge of his
duties or otherwise is a disputed question of fact which may be
decided by the Trial Court after recording the evidence. It was
contended that the first information report which is produced at
Annexure ‘A’ to the application cannot be looked into at this stage
as it does not form part of the record before the learned Judicial
Magistrate. It was submitted that the same is in the nature of his
defence, which has to be proved by the applicant before the Trial
Court and that the applicant has yet to prove that the alleged
offence was committed in the discharge of his duties. It was
submitted that on the basis of the averments made
in the complaint, the Court was convinced regarding commission of an
offence and had, therefore, taken cognizance thereof. It was pointed
out that in connection with the said first information report, the
accused therein, including the complainant, were prosecuted and at
the end of the trial, they had been acquitted. Reliance was placed
upon the decision of this Court in Prabhudas
Badaji Pandav vs. Faridmiya Huseinmiya Kadri and another,
1991 (2) GLR 876, wherein it has been held that the question
regarding sanction to prosecute can be considered at any stage of the
proceedings and while considering this question, it is not necessary
for the Court to confine itself to the allegations only in the
complaint and that the Court can take into consideration all other
materials on record at the time when the question is raised. The
question regarding sanction can be considered at any time and the
facts and circumstances and the record and the material available at
that juncture can be looked into. Reliance was placed upon the
decision of the Apex Court in Raj
Kishor Roy vs. Kamleshwar Pandey,
AIR 2002 SC 2801 and more particularly to paragraph 11 thereof which
reads thus:
In
this case, as indicated above, the complaint was that the 1st
respondent had falsely implicated the appellant and his brother in
order to teach them a lesson for not paying anything to him. The
complaint was that the 1st respondent had brought an illegal weapon
and cartridges and
falsely shown them to have been recovered from the appellant and his
brother. The High Court was not right in saying that even if these
facts are true then also the case would come within the purview of
Section 197 CrPC. The question whether these acts were committed
and/or whether the 1st respondent acted in discharge of his duties
could not have been decided in this summary fashion. This is the type
of case where the prosecution must be given an opportunity to
establish its case by evidence and an opportunity
given to the defence to establish that he had been acting in the
official course of his duty. The question whether the 1st respondent
acted in the course of performance of duties and/or whether the
defence is pretended or fanciful can only be examined during the
course of trial. In our view, in this case the question of sanction
should be left open to be decided in the main judgment which may be
delivered upon conclusion of trial .
10. Reliance
was also placed on the decision of the Apex Court in State
of Maharashtra vs. Devahari Devasingh Pawar,
(2008) 2 SCC 540, and more particularly to the contents of paragraph
14 wherein the Court has referred to certain observations made in
Romesh Lal Jain vs.
Naginder Singh Rana; which
shall be referred to hereinafter at an appropriate stage.
11. Attention
was invited to the fact that from the date of the offence, after
issuance of process, the applicant – accused has never remained
present before the learned Magistrate. It was submitted that the
examination-in-chief of the complainant was recorded in the year
2006. However, thereafter, the applicant has not remained present to
cross-examine the complainant to show that the act was committed
during the course of discharge of his duties. Earlier, an application
had been filed before the learned Magistrate seeking discharge on the
ground that sanction under Section 197
had not been obtained, which came to be rejected. Thereafter,
another application came to be filed regarding non-compliance with
the provisions of Section 251 of the Code as regards recording of
plea of the accused prior to framing charge which came to be
rejected. The applicant carried the same further in revision before
the Sessions Court, Bhuj, which came
to be rejected by an order dated 18th
August, 2007, passed by the learned Additional Sessions Judge, Fast
Track Court No.5, Bhuj-Kutch. However, it was directed that the plea
of the accused be recorded in accordance with law and thereafter,
trial should proceed in accordance with law. It was submitted that
thereafter, instead of remaining present before the learned
Magistrate for recording of his plea, the applicant filed another
application before the Trial Court challenging the maintainability of
the proceedings which came to be withdrawn. Subsequently, after a
period of 16 years from the date of issuance of process, the
applicant has filed the present application for quashing the
complaint as well as the process issued pursuant thereto. It was
urged that the applicant was trying to protract the trial under one
pretext or the other and considering the overall conduct of the
applicant, he is not entitled to any of the reliefs prayed for. The
application, therefore, deserves to be rejected.
12. In
rejoinder, Mr. I.H. Syed, learned advocate for the applicant
submitted that in absence of sanction, there is no bar against
institution of the proceedings. Hence, lodging of the complaint was
not barred. However, commencement of proceedings under Section 204 of
the Code is invalid without prior sanction as envisaged under Section
197 of the Code. Hence,
the issuance of process against the petitioner stands vitiated as the
Court could not have taken cognizance of the offence without prior
sanction for prosecuting the applicant. It was submitted that the
issue regarding sanction to prosecute can be raised at any point of
time. Reliance was placed upon the decision of the Apex Court in
Romesh Lal Jain vs.
Naginder Singh Rana and others,
(2006) 1 SCC 294,
for the proposition that
a plea relating to want of sanction although desirably should be
considered at an early stage of the proceedings, but the same would
not mean that the accused cannot take the said plea or the Court
cannot consider the same at a later stage. Each case has to be
considered on its own facts. Furthermore, there may be cases where
the question as to whether the sanction was required to be obtained
or not would not be possible to be determined unless some evidence is
taken, and in such an event, the said question may have to be
considered even after the witnesses are examined. It was accordingly
submitted that it was desirable that a plea relating to want of
sanction should be considered at an early stage of the proceedings.
It was submitted that on the facts of the present case, it is
possible for the Court on the basis of the material on record to
decide the question as to whether sanction was required to be
obtained or not. Hence, it is not necessary to record any further
evidence for the purpose of deciding the said question. It was
further submitted that the question regarding want of sanction now
cannot be raised before the Trial Court inasmuch as in view of the
decision of the Apex Court in Adalat
Prasad case, the
Trial Court is not competent to discharge the accused after the
issuance of process.
13. In
the background of the aforesaid facts as well as the rival
contentions raised by the learned advocates for the parties, the
questions that arise for determination are firstly, as to whether at
this stage of the proceedings, the question of sanction can be
considered; secondly, whether on the facts of the present case, it
would be possible to decide the question of sanction at this stage
and lastly, whether on the facts of the present case, the offences
alleged have been committed by the applicant during the course of
discharge of his duties so as to attract the provisions of Section
197 of the Code which makes sanction to prosecute mandatory for
taking cognizance of the offence.
14. Insofar
as the first question is concerned, the Apex Court in Romesh
Lal Jain vs. Naginder Singh Rana and others
(supra) has, after referring to several of its earlier decisions,
held thus:-
33.
The upshot of the aforementioned discussions is that whereas an order
of sanction in terms of Section 197 CrPC is required to be obtained
when the offence complained of against the public servant is
attributable to the discharge of his public duty or has a direct
nexus therewith, but the same would not be necessary when the offence
complained of has nothing to do with the same. A plea relating to
want of sanction although desirably should be considered at an early
stage of the proceedings, but the same would not mean that the
accused cannot take the said plea or the court cannot consider the
same at a later stage. Each case has to be considered on its own
facts. Furthermore, there may be cases where the question as to
whether the sanction was required to be obtained or not would not be
possible to be determined
unless some evidence is taken, and in such an event, the said
question may have to be considered even after the witnesses are
examined.
39.
We may hasten to add that we do not intend to lay down a law that
only because a contention has been raised by the complainant or the
prosecution that the question as regards necessity of obtaining an
order of sanction is dependent upon the finding of fact that the
nexus between the offences alleged and the official duty will have to
be found out upon analysing
the evidences brought on record; the same cannot be done at an
earlier stage. What we intend to say is that each case will have to
be considered having regard to the fact situation obtaining therein
and no hard-and-fast rule can be laid down therefor.
In
the light of the aforesaid decision, it is apparent that a plea
relating to want of sanction can be raised at an earlier stage of the
proceedings. Hence, the question as to whether an order of sanction
in terms of Section 197 of the Code is required to be obtained can be
decided at any stage of the proceedings and even at this stage.
15. As
regards the second question as to whether on the facts of the present
case, it would be possible to decide the question of sanction at this
stage, in the opinion of this Court, on the basis of the material
which has been brought on the record of this application, this Court
would be in a position to decide the said question. On behalf of the
respondent no.2 complainant, it has been contended that the
evidence in the nature of the first information report lodged against
the complainant is required to be brought on the record of the Trial
Court and cannot be taken into consideration by this Court as it does
not form part of the record before the Trial Court. In this regard,
it may be pertinent to refer to the decision of the Supreme Court in
State through the
CBI vs. B.L. Verma and another,
(1997) 10 SCC 772. Though the said decision had been rendered prior
to the decision in Adalat
Prasad case, the
following observations would be applicable even to the facts of the
present case:
24. In
Matajog case the Constitution Bench held that the
complaint may not disclose all the facts to decide the question of
applicability of Section 197, but facts subsequently coming either on
police or judicial inquiry or even in the course of prosecution
evidence may establish the necessity for sanction. In B. Saha case
the Court observed that instead of confining itself to the
allegations in the complaint the Magistrate can take into account all
the materials on the record at the time when the question is raised
and falls for consideration. In Pukhraj case
this Court
observed that whether sanction is necessary or not may depend from
stage to stage. In Matajog case the Constitution Bench had further
observed that the necessity for sanction may reveal itself in the
course of the progress of the case and it would be open to the
accused to place the material on record during the course of trial
for showing what his duty was and also the acts complained of were
so interrelated with his official duty so as to attract the
protection afforded by Section 197 of the Code of Criminal Procedure.
This being the position it would be unreasonable to hold that the
accused even though might have really acted in discharge of his
official duty for which the complaints have been lodged yet he will
have to wait till the stage under sub-section (4) Section 246 of the
Code is reached or at least till he will be able to bring in relevant
materials while cross-examining the prosecution witnesses. On the
other hand it would be logical to hold that the matter being one
dealing with the jurisdiction of the court to take cognizance, the
accused would be entitled to produce the relevant and material
documents which can be admitted into evidence without formal proof,
for the limited consideration of the court whether the necessary
ingredients to attract Section 197 of the Code have been established
or not. The question of
applicability of Section 197 of the Code and the consequential ouster
of jurisdiction of the court to take cognizance without a valid
sanction is genetically different from the plea of the accused that
the averments in the complaint do not make out an offence and as such
the order of cognizance and/or the criminal proceedings be quashed.
In the aforesaid premises we are of the considered opinion that an
accused is not debarred from producing the relevant documentary
materials which can be legally looked into without any formal proof,
in support of the stand that the acts complained of were committed in
exercise of his jurisdiction
or purported jurisdiction as a public servant in discharge of his
official duty thereby requiring sanction of the appropriate
authority.
In
the facts of the present case, the additional evidence that has been
brought on record is in the nature of the first information report
registered vide Bhuj City Police Station I-C.R. No.151 of 1992 which
is a matter of official record. Hence, even in absence of any further
proof, the same can be taken into consideration for the limited
purpose of examining the question regarding want of sanction. The
other evidence is in the nature of the judgment and order dated 11th
October, 1995 rendered by the Chief Judicial Magistrate, Bhuj-Kutch
in Criminal Case No.4447 of 1992 whereby the complainant and other
accused were acquitted of the offence registered against them vide
the aforesaid first information report. Since the documents which
are produced on record for the purpose of deciding the issue of
requirement of sanction are part of the official record, for the
limited consideration of the Court whether the necessary ingredients
to attract Section 197 of the Code have been established or not, the
said documents can be taken into consideration without formal proof.
Considering the fact that the Trial Court has no jurisdiction to
discharge the accused
after issuance of process, it would be an exercise in futility to
relegate the applicant to the Trial Court for the purpose of adducing
evidence in his defence to indicate that the offence alleged against
him had been committed during the course of discharge of his official
duties. Since on the basis of the material on record, it is possible
for this Court to decide the question, no useful purpose would be
served in relegating the applicant to the Trial Court for the purpose
of adducing the very same evidence before the Trial Court which, in
any case, would not be in
a position to discharge the applicant even if it came to the
conclusion that sanction under Section 197 of the Code was necessary.
16. Insofar
as the question as to whether the offence alleged against the
applicant has been committed during the discharge of his duties as a
public servant is concerned, it would be necessary to examine the
contents of the complaint, the first information report registered
against the complainant and others as well as the judgment rendered
by the Trial Court. A perusal of the first information report
indicates that the offence alleged against the applicant has occurred
at about 17:30 hours on 15th
July, 1992, and the place of offence is near the office of the
Collector. The applicant herein was engaged in bandobust in
connection with the Dharna programme announced by the Vishwa Hindu
Parishad and supporters of Bhartiya Janata Party on 15th
July, 1992 from 10:00 to 16:00 hours in front of the Collector’s
office. At about 17:30 hours, a procession of about 50 persons
shouting slogans came towards the Collector’s office. The procession
was told that they had no permission to carry out the rally. That as
they had formed an unlawful
assembly they should immediately disperse. The assembly of persons
did not disperse but rushed into the police cordon. The police tried
to control the crowd with all restraint. However, the persons in the
mob started pelting stones at the police officers and other persons
in charge of the bandobust. Subsequently, with a view to bring the
situation under control, a light lathi-charge was carried out and the
crowd was dispersed. From the violent mob, the police had
apprehended the complainant and five others namely, Anilkumar,
Dilipkumar Jayantilal Joshi, Kamlesh Bhagwanji Thakkar and Narendra
Haribhai Makwana.
Pursuant to the said first information report, investigation was
carried out and charge-sheet was filed against the accused. The
accused faced trial and upon conclusion of the trial, they were
acquitted vide the above referred judgment and order. From the
aforesaid judgment and order, it is apparent that it is the case of
the prosecution that the complainant and other accused, in all five
persons, had been apprehended on the spot when they were fleeing
after the police carried out lathi-charge on the mob. The accused
have been acquitted on the ground that upon perusal of the entire
evidence, it had come on record that a mob of 50 different persons
had indulged in stone throwing and different police personnel had
sustained injuries. No evidence has been brought on record as regards
the injuries sustained by the concerned persons. The Court was of the
view that there is also no evidence to indicate that it was the
accused who had thrown stones and further there was no evidence that
the accused had formed an unlawful assembly.
17. In
the impugned complaint, it is the case of the respondent
No.2 – complainant that on 15th
July, 1992 at 17:30 hours, when he came near the Collector’s office,
the applicant herein suddenly got incited and started saying catch
him . The applicant herein caught hold of the complainant and
belaboured him with sticks and at that time, other persons who were
passing by namely Anilkumar Dalsukh Vitha, Dilip Jayantilal Joshi,
Narendra Haribhaii Makwana and Kamlesh Bhagwanji Thakkar were also
apprehended by the police and without any sufficient reasons were
belaboured with sticks. It is in the context of this incident that
the complaint has been lodged against the applicant. On a conjoint
reading of the complaint
lodged against the applicant and the first information report
registered against the complainant, it is apparent that both arise
out of the same incident. From the first information report in
question as well as the judgment rendered by the Trial Court, it is
evident that the police authorities were engaged in bandobust in
connection with the rally that was being taken out on that day. It is
during the course of the bandobust that the applicant is alleged to
have used force against the complainant and others. The first
information report registered against the complainant clearly
indicates that it was with a view to contain the mob that the
lathi-charge had been resorted to. It may be that excessive force may
have been issued during the course of the lathi-charge, however, that
certainly would not detract from the fact that the offence alleged
against the applicant has taken place during the course of discharge
of his official duties.
18. The
Apex Court in Raghunath
Anant Govilkar vs. State of Maharashtra and Others,
(2008) 11 SCC 289, has laid
down thus:-
6.
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 it chooses 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 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.
9.
The section falls in the chapter dealing with conditions requisite
for initiation of proceedings. That is, if the conditions mentioned
are not made out or are absent then no prosecution can be set in
motion. For instance no prosecution can be initiated in a Court of
Session under Section 193, as it cannot take cognizance, as a court
of original jurisdiction,
of any offence unless the case has been committed to it by a
Magistrate or unless the Code expressly provides for it. And the
jurisdiction of a Magistrate to take cognizance of any offence is
provided by Section 190 of the Code, either on receipt of a
complaint, or upon a police report or upon information received from
any person other than a police officer, or upon his knowledge that
such offence has been committed. So far as public servants are
concerned, the cognizance of any offence, by any court, is barred by
Section 197 of the Code unless sanction is obtained from the
appropriate authority, if the offence, alleged to have been
committed, was in discharge of the official duty. The section not
only specifies the persons to whom the protection is afforded but it
also specifies the conditions and circumstances in which it shall be
available and the effect in law if the conditions are satisfied. The
mandatory character of the protection afforded to a public servant is
brought out by the expression no court shall take cognizance of
such offence except with the previous sanction . Use of the words
no and shall make it abundantly clear that the bar on the
exercise of power by the court to take cognizance of any offence is
absolute and complete. Very cognizance is barred. That is, the
complaint cannot be taken notice of. According to Black s
Law Dictionary
the word cognizance means jurisdiction or the exercise
of jurisdiction or power to try and determine causes . In
common parlance it means taking notice of. A court, therefore, is
precluded from entertaining a complaint or taking notice of it or
exercising jurisdiction if it is in respect of a public servant who
is accused of an offence alleged to have been committed during the
discharge of his official duty.
19. Considering
the facts of the present case as noted hereinabove, in the light of
the aforesaid decision, it is apparent that the offence alleged
against the applicant has been committed in the discharge of his
official duties. At best, if the allegations made in the complaint
are taken to be true, it may be said that the applicant acted in
excess of his duties, however, there is a reasonable connection
between the act and the performance of the official duty. Hence, the
excess will not be a sufficient ground to deprive the applicant from
the protection given under Section 197 of the Code. As submitted by
the learned advocate for the applicant, Section 197 of the Code falls
in the Chapter dealing with conditions requisite for initiation of
proceedings. In the circumstances, if the conditions mentioned are
not made out or are absent, then no prosecution can be set in motion.
Insofar as a complaint against a public servant is concerned, the
cognizance of any offence by any Court is barred by Section 197 of
the Code unless sanction is obtained from the appropriate authority
if the offence alleged to have been committed was in discharge of his
official duty. The Court was, therefore, precluded from taking
cognizance of the offence and issuing process against the applicant
in connection with the offence which is alleged to have been
committed during the discharge of his official duty. In the
circumstances, the impugned order, directing issuance of process
against the applicant being without jurisdiction cannot be sustained.
20. The
question of applicability of Section 197 of the Code and consequent
ouster of jurisdiction of the Court to take cognizance without a
valid sanction is generically different from the plea of the accused
that the averments in the complaint do not make out an offence and as
such, the order of cognizance and the criminal proceedings be
quashed. Before this Court no submissions have been advanced on the
merits of the complaint as to whether the same makes out an offence
or not, in the circumstances, this Court has not gone into the merits
of the complaint and as such the question of quashing the complaint
does not arise. Even otherwise at this stage after a period of more
than a decade since the lodging of the complaint, the prayer for
quashing the complaint on merits cannot be entertained. However,
insofar as taking cognizance of the offence and issuing process
thereon without prior sanction of the Government under Section 197 of
the Code is concerned, the same stands vitiated.
21. For
the foregoing reasons, the application partly succeeds and is
accordingly allowed to the following extent. The cognizance taken by
the learned Chief Judicial Magistrate, Bhuj-Kutch on the complaint
lodged by the respondent no.2 against the applicant is held to be
vitiated on the ground of non-fulfillment of the requirements of
Section 197 of the Code. Consequently, the order dated 16th
July, 1992 passed by the learned Chief Judicial Magistrate in
Criminal Case No.2107 of 1992
directing issuance of process against the applicant for the offence
under Sections 323 and 506(1) of I.P.C. is hereby quashed. Rule is
made absolute.
22. It
is clarified that this Court has not expressed any opinion on the
merits of the complaint. Any observation made in this order is only
for the limited purpose of deciding the controversy in issue and
shall in no manner prejudice the case of either of the parties.
(
Harsha Devani, J. )
hki
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