CRIMINAL MISC. NO.M 22158 OF 2008 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 29, 2008
Dr.Inderjit Singh Bagga
.....Petitioner
VERSUS
State of Punjab
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Gurcharan Dass, Advocate,
for the petitioner.
****
RANJIT SINGH, J.
The prayer of the petitioner for accepting the cancellation
report filed in the case registered against him is declined. The
petitioner has accordingly filed this petition under Section 482
Cr.P.C. for quashing of this order dated 18.8.2008.
Petitioner, Dr.Inderjit Singh, accused, was working as
Medical Officer, in the year 1999. One Raj Kumar alongwith his
employer, Anil Kumar, had gone to the Civil Hospital, when he was
caused injuries by one Manjit Singh. The petitioner, who was a
CRIMINAL MISC. NO.M 22158 OF 2008 :{ 2 }:
Medical Officer, demanded bribe of Rs.800/- for issuing medical
report, but later agreed to do so on payment of Rs.500/- as bribe.
The complainant promised to pay the same but went and reported
the matter to DSP Charanjit Singh, who recorded the statement of
Raj Kumar and thereafter conducted raid and apprehended the
petitioner. 5 currency notes of Rs.100/- denominations were
recovered from the drawer of the table of the petitioner. Normal
procedural requirements were complied with. A medico-legal report
prepared by him was also taken into possession. After investigation,
the cancellation report was submitted in the Court on 7.8.2003.
Finding that there was enough evidence against the petitioner to
proceed with the case, the cancellation report was returned to
investigating agency for further investigation. The Investigating
Agency, however, again filed a cancellation report, which was under
consideration before the Court and has been disposed of through the
impugned order.
It was contended before the Trial Court on behalf of the
petitioner that sanction under Section 197 Cr.P.C. and Section 19 of
the P.C. Act is required to proceed with the case and cognizance can
not be taken without such sanction. It may be worth notice that the
petitioner-accused is alleged to have committed offence under
Sections 7, 13(2) of the Prevention of Corruption Act, 1988 (for short,
“the Act”). The question of obtaining sanction under Section 197
Cr.P.C. in this case would not arise. The petitioner is being
prosecuted for the offences under the Act and Section 19 of the said
Act is only relevant in this regard. Section 19(3) of the Act would be
CRIMINAL MISC. NO.M 22158 OF 2008 :{ 3 }:
relevant to see the affect of absence of sanction or any error therein.
The same is reproduced hereunder:-
(3)Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a special
Judge shall be reversed or altered by a court in appeal,
confirmation or revision on the ground of the absence
of, or any error, omission or irregularity in, the sanction
required under sub-section (1), unless in the opinion of
that court, a failure of justice has in fact been
occasioned thereby;
(b) no court shall stay the proceedings under this Act
on the ground of any error, omission or irregularity in
the sanction granted by the authority, unless it is
satisfied that such error, omission or irregularity has
resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act
on any other ground and no court shall exercise the
powers of revision in relation to any interlocutory order
passed in any inquiry, trial, appeal or other
proceedings.”
It is clearly provided that no finding, sentence or order
passed by the Special Judge shall be reversed or altered by a Court
in appeal, confirmation or revision on the ground of absence of, or
any error, omission or irregularity in the sanction required under sub-
section (1), unless in the opinion of that Court a failure of justice has
CRIMINAL MISC. NO.M 22158 OF 2008 :{ 4 }:
in fact been occasioned thereby. It is not the case of the petitioner
that there had been any failure of justice on account of absence of
sanction or not. There is some justification in the view taken by the
Trial Court that sanction in this case may not be necessary to take
cognizance of the offence against the petitioner under the Act
because while accepting bribe a public servant neither act nor
proposes to act in discharge of his official duties.
The learned counsel for the petitioner, however, would
refer to the case of Raghunath Anand Govilkar Vs. State of
Maharashtra and others, 2008 (1) RCR (Criminal) 1042. It is held in
this case that cognizance of 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 duties. This has been held to be
mandatory protection. As already noticed, the petitioner has been
accused of an offence under the Act and as such, Section 19 of the
said Act only would be relevant in this case. In the case Raghunath
Anand Govilkar (supra), the Hon’ble Supreme Court was dealing
with the person accused who was accused of offences under Section
406, 409 and 120-B IPC. Otherwise also, it has been significantly
observed by the Hon’ble Supreme Court that sanction would be
necessary if offence alleged to have been committed was in
discharge of the official duty. Use of expression `official duty’ implies
that act or omission must have been done by the public servant in
the course of his service and such act or omission must have been
performed as part of duty, which further must have been official in
CRIMINAL MISC. NO.M 22158 OF 2008 :{ 5 }:
nature. Thus, the requirement of said Section is to construed
strictly while determining its applicability to the act or omission during
the course of service. In Nirmal Singh Kahlon Vs. State of
Punjab and others, 2008 (2) RCR (Criminal) 208, which was
referred to before the Special Judge, this Court has, after relying on
various judgments, has held that following principle could be
deduced in this regard:-
“(i) Protection is 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.
(ii)If in doing public 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.
(iii)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. Act can
be performed in discharge of official duty as well as in
dereliction thereof.”
In addition to all these considerations, the contents of
Section 19(3) of the Act can not be ignored. In fact, counsel for the
petitioner did not dispute that Section 197 Cr.P.C. would have no
applicability in the present case and Section 19 of the Act is the
complete Code, which will govern the aspect of sanction in this case.
CRIMINAL MISC. NO.M 22158 OF 2008 :{ 6 }:
The official duty of the petitioner was to issue medical
report. While performing that duty, he demanded money to perform
the duty required of him. This part would not be connected with
discharge of his official duty. As viewed by the Courts, it is the quality
of the act which is important and the protection is available if the act
falls within the scope and range of his duty. Accepting or asking for
money would certainly not be in the scope and range of the official
duty performed by the petitioner. Sanction, as such, would in my
considered opinion, be not required in this case and the impugned
order does not suffer from any infirmity as pleaded.
Learned counsel for the petitioner also submits that
cancellation report was submitted in this case and as such, the grant
of sanction would acquire an added significance. For accepting or
rejecting the cancellation report as submitted by the investigating
agency, grant or non grant of sanction would have no relevance.
Cancellation report has not been submitted on the basis that the
sanction in this case has not been granted. The Court of Special
Judge is fully justified in applying its mind to the cancellation report
and rejecting the same, as apparently there is sufficient material on
record in support of the allegations. There is enough material on
record for which cognizance of offence can be taken against the
petitioner. Once the cancellation was submitted, obviously no action
was likely to be taken for obtaining sanction. However, sanction
would not be needed in this case. The view taken by the Court is on
the basis of a law laid down above and would not call for any
interference.
CRIMINAL MISC. NO.M 22158 OF 2008 :{ 7 }:
The petition is accordingly dismissed in limine.
August 29 ,2008 ( RANJIT SINGH ) khurmi JUDGE