JUDGMENT
Chandramauli Kr. Prasad, J.
1. In both the applications, prayer made by the petitioners is to, quash the order dated 11.4.2000 passed by the Additional Chief Judicial Magistrate, Patna in Shastrinagar (Gardanibagh) P.S. Case No. 847 of 1990 dated 20.11.1990 whereby the learned Magistrate had taken cognizance of the offence under Sections 467, 468, 471, 409, 420, 201 and 120-B of the Indian Penal Code.
2. By the said order, the learned Magistrate had taken cognizance of the offence against five persons, namely, Surya Kumar Srivastava, Gopi Kant Pathak, Tribnuwan Nath Gupta, Bhupendra Math Srivastava and Ram Pyare Sinha alias Ram Pyare Singh. Bhupendra Nath Srivastava and Tribhuwan Nath Gupta are the petitioners in Cr. Misc. No. 28834 of 2000 whereas accused Ram Pyare Sinha alias Ram Pyare Singh is petitioner in Cr. Misc. No. 13647 of 2001.
3. Prosecution started on the basis of a written, report given by the Special Officer, Jai Prakash Narayan Co-operative Society to the Officer-in-charge of Shastrinagar Police Station. According to the report, the registration of Jai Prakash Narayan Cooperative Housing Society Ltd, (hereinafter referred to as ‘Society’), superceded by judicial order dated 12.4.1999 passed by the Registrar of the Co operative Society and one Sri Surendra Prasad Singh was appointed as the Special Officer. In the report, it was further stated that the former Secretary of the Society, namely. Sri P.P. Verma, by letter dated 22.5.1989 was asked to make available the records of the Society but he did not comply with the said order Thereafter, according to the report, the Registrar of the Co-operative Society, by judicial order dated 13.7.1989; appointed the ‘informant, i.e., Shri P.P. Ojha as the Special Officer of the Society. The report farther stated that in spite of several requests and registered letter of the joint Registrar, Co-operative Society, Patna Division dated 7.9.1988, Sri Verma the Secretary of the Society, did not produce records. According to the First information Report, the Joint Registrar, by letter dated 23.10.1989, directed the Secretary of the Society to produce it records before the Special Officer on 3.11.1989 and such a notice was published in the daily Newspaper but Sri Verma did not produce the records. The Special Officer, in the report, further stated that the Joint Registrar, Co-operative Society had given consent for prosecution of Sri P.P. Verma, the Ex Secretary of the Society for commission of offence under Section 45 of the Bihar Co-operative Societies Act, showing him as absconder and the investigation was to continue in respect of these petitioners. During the course of investigation, the involvement of the petitioners were found in commission of the offence and accordingly, the police submitted supplementary charge-sheet No. 27 of 2000 dated 11.3.2000 against these petitioners and other accused-persons, The supplementary charge-sheet, so submitted, was placed for consideration before the learned Magistrate, who as stated earlier, by the impugned order, took cognizance of the offence and transferred the case for trial before another Magistrate.
4. According to the material collected during the course of investigation, it was found that the petitioners were connected with the Society in one of the the other capacity and done various illegal acts for their pecuniary gain and loss to the Society.
5. Mr. Rana Pratap Singh, appearing on behalf of the petitioners submitted that the allegation against the petitioners is such which clearly shows that the act was done in discharge of their official duty and the petitioners being removable from their office save by the sanction of the State Government, their prosecution without the sanction of the State Government is in teeth of Section 197 of the Code of Criminal Procedure. He emphasizes that the question with regard to sanction, can be raised at any stage of the trial. However, learned Counsels appearing on behalf of the State, submit that this is not the stage where this question is fit to be gone into and the petitioners shall be free to raise this point at the latter stage of the trial.
6. The point convassed at the bar is not res integra and had come up for consideration before the Supreme Court on several occasions. In the case of Matajog Dobey v. H.C. Bhari , a Constitution Bench of Supreme Court, considered this question as to the stage at which the need for sanction under Section 197 of the Code of Criminal Procedure is to be considered. In the said case, it has been held as follows:
Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in ‘Hori Ram’s case (B), and also in Sarjoo Prasad v. Emperor AIR 1946 FC 25 (G). Sulaiman, J, says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.
But, a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. Sulaiman, J. refers (at page 52) to the prosecution case as disclosed by the complaint or the ‘police report’ and he winds up the discussion in these words:
Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground.
The other learned Judge also states at p. 55. “At this stage, we have only to see whether the case alleged against the appellant or ‘sought to be proved’ against him relates to acts done or purporting to be done by him in the execution of his duty.
It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty but facts subsequently coming to lighten a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction.
Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.
7. In the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Ors. , the Supreme Court in para-24 has observed as follows:
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 of not may depend from Mage to stage.
8. In the case of Birendra K. Singh v. State of Bihar , the Supreme Court held as follows:
We are of the opinion that the stage for raising such objection could be when the accused are called upon to address arguments under Sections 227 and 228 of the Code of Criminal Procedure. Such a stage would reach only if the case is committed to the Court of Sessions. The advantage for the accused and the State as well as for the complainant to wait till then is that the order of committal would be supported by the materials envisaged in Section 202 of the Code and the question can be considered in the light of such materials also. We permit the appellant to raise the contention relating to sanction under Section 197 of the Code before the Sessions Court at the appropriate stage mentioned above. If any such contention is raised, the same shall be dealt with and disposed of by a speaking order by the Sessions Court untrammeled by any observations made in the impugned order. It is needless to say that the appellant shall be released on bail if he files an application for the same on such conditions as the Chief Judicial Magistrate, Gaya, deems fit to impose.
9. The judgment of the Supreme Court in Birendra K. Singh (Supra) came up for consideration before three Judges’ Bench of the Supreme Court in the case of Abdul Wahab Ansari v. State of Bihar and Anr. and it over ruled its decision in the case of Birendra Kr. Singh (Supra). While doing so it observed as follows:
In the case of Ashok Sahu v. Gokul Saikia, this Court had said that want of sanction under Section 197 of the Code is a prohibition against institution of the proceedings, and the applicability of the Section must be judged at the earliest stage of the proceedings and in that case, the Court directed the Magistrate to consider the question of sanction before framing a charge. In yet another case, in the case of S. Saha v. M.S. Kochar, a three-Judge Bench of this Court had held that the question of sanction under Section 197, Cr.P.C. can be raised and considered at any stage of the proceedings and further in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. This being the position, we are of the considered opinion that the decision of this Court in Birendra K. Singh case does not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time.
10. The Supreme Court had the occasion to consider the question as regard to the stage at which the requirement for sanction can be raised, recently in the case of P.K. Pradhan v. State of Sikkim and in the said case, in para-15, it has been held as follows:
Thus, from a conspectus of the aforesaid decisions, it will be dear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; may be immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain eases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish if. In Such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.
11. A learned Single Judge of this Court in the case of Harihar Choubey and Anr. v. State of Bihar and Anr. 2001 (1) PLJR 485, has observed in para-11 of the judgment as follows:
The accused, where sanction is necessary, is not without remedy even if cognizance is taken and process is issued because the question of sanction may still be taken into consideration at different stages of trial on the basis of further materials revealed at such stages. According to the Supreme Court, what is necessary is that the offence must be in respect of an act one or purported to be done in discharge of official duty.
Thus, from a conspectus of the authorities referred to above, to me, it seems to be plain that the question as regard to sanction can be raised and may arise at any stage of the proceeding. The Constitution Bench of the Supreme Court in Matjog Dubey (supra) has referred to its earlier precedent in which it was said that the question must be judged in the first instance at the earliest stage of the case but thereafter the Supreme Court observed that a careful perusal of the latter parts of the judgment, does not show that they did not intend to lay down any such proposition. In the said case, the Supreme Court observed that the question may arise at any stage of the proceedings.
12. In my opinion, question of sanction under Section 197 of the Code of Criminal Procedure can be raised any time immediately after the cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. However, there may be certain cases in which examination of this question may require detail evaluation of the material or the accused may like to bring evidence to show that what he did was in discharge of official duty and in such a cases, the accused may not be allowed to raise this question immediately after the cognizance is taken and processes issued. In fact, no as regards the stage at which this question can be allowed to be raised. It will depend upon the facts and circumstances of each case.
13. As observed earlier in the present case, petitioners have not been named in the first information report. Their complicity in the crime surfaced during the course of investigation and thereafter, charge-sheet has been submitted against them and on that basis, cognizance has been taken. The plea taken by the petitioners that what they did was in discharge of official duty, requires detail examination of the materials collected during the course of investigation. The petitioners have not raised any such plea before the learned Magistrate and rushed to this Court seeking protection at the first instance. Petitioners had not called for adjudication of this question from the trial Court and have invited this Court to decide this question. This requires detail examination of the materials collected during the course of investigation and in that view of the matter, it would be unsound exercise of discretion to go into this question at this stage. On this ground alone, I refrain from entering into the merits of submission that act done was in official discharge of duty. Thus, the petitioners succeed in law but fail on facts presently. In literary words, operation is successful but the patient dies presently.
14. Petitioners shall be free to raise this question at the time of framing of the Charge. Needless to state that in case such a plea is raised, the learned Magistrate shall consider the same in accordance with law. By way of abundant caution, I may observe that this judgment may not be construed to mean that I have held that the act done by the petitioners, is in discharge of their official duty. In case, such a plea is raised, the learned Magistrate shall obviously decide this question also.
15. In the result, I do not find any merit in these applications and are dismissed accordingly with the observations made above.