JUDGMENT
S.K. Katriar, J.
1. This application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), at the instance of the two petitioners is directed against the order dated 22-5-92, passed by Sri Satya Prakash Judicial Magistrate, Pakur, in P.C.R. Case No. 173/91/T.R. Case No. 362/92, whereby cognizance of the alleged offences has been taken under Section 384 of the Indian Penal Code and the accused, the petitioners herein, have been summoned to stand their trial.
2. According to the allegations in the petition of complaint, the sole opposite party herein (the complainant) is the owner of a Petrol Station known as Pakam Service Station at Pakaur who had purchased Mobil oil from the depot of Hindustan Petroleum Corporation, Mithapur, Patna, on 30-9-91, valued at Rs. 1,90,001/-. The same was loaded over a truck belonging to one Niranjan Pandey (described in the petition of complaint as P.W. 1, for transportation to Pakaur. One Naresh Raut (described in the petition of complaint as P.W. 2), an employee of the opposite party (complainant), were also in the truck. According to the further allegations, the truck had on 1-10-91 reached Dumka-Deoghar road. They had parked the truck by the wayside, and Naresh Raut went to attend to the call of nature and, in the meantime, the petitioners herein (accused-persons) had reached there, checked the vehicle on road, and demanded the cash memo and road permit which were produced before them but the petitioners refused to accept the same on the plea that the same did not bear the signature of the issuing authority. This was followed by a demand of illegal gratification of Rs. 10,000/- failing which the truck will not be allowed to proceed the Pakaur. The occupants of the truck on the highway were unable to satisfy the illegal demand. Therefore, the truck, at the behest of the petitioners, was taken to the office of the commercial taxes at B. Deoghar. The Opposite party met the petitioners at B. Deoghar who again demanded a sum of Rs. 10,000/- as illegal gratification to release the truck. According to the further allegations, the opposite party refused to pay illegal gratification because the taxes were paid and road permit had also been obtained. Further allegation is that on refusal to pay the illegal gratification, the accused-persons imposed fine whimsically on the Mobil oil. On 10-10-91, opposite party had filed an application for obtaining the certified copy of the order and was waiting for the same, but the same had not been supplied to him. Hence, the delay in filing the petition of complaint which was filed on 28-10-91.
2.1 The petition of complaint was registered as P.C.R. case No. 173 of 1991 Ranjeet Kumar Chatterjee v. S.N. Jha and Anr. A copy of the same is marked as Annexure-2 to the complaint petition. It appears that the learned Magistrate had conducted an inquiry under Section 202 of the Code. On a consideration of the materials on record, he passed the impugned order of cognizance in the aforesaid manner, and summoned the petitioners herein to stand their trial.
3. While assailing the validity of the impugned order of cognizance, learned Counsel for the petitioners submitted that no case under Section 384, I.P.C. is made out against the petitioners. The ingredients of the penal section are not prima fade satisfied. She next submitted that the complaint petition suffers from unexplained delay, and is also a counter blast to the lawful actions of the petitioners. She also submitted that in view of the facts and circumstances of the case as alleged in the petition of complaint followed by the lawful proceedings taken by the petitioners against the opposite party, prior sanction for their prosecution is imperative in terms of Section 197 of the Code. The same has not been obtained in the present case and, therefore, the prosecution should not be allowed to continue. Both the petitioners were commercial taxes officers, & posted as such at B. Deoghar, at the relevant point of time.
4. Learned Counsel for the opposite parry submitted that this is the petitioners’ second attempt before this Court and, therefore, it should be dismissed on this ground alone. He next submitted that on the basis of the materials before the learned Magistrate taking cognizance, the ingredients of Sections 383 and 384, I.P.C. are satisfied and a prima fade case is clearly made out against the petitioners. He further submitted that the issue relating to the delay has been properly explained in the petition of complaint, and the petitioners’ contention that the present case is a counter-blast to the lawful action of the petitioners amounts to introducing their defence which is impermissible in a quashing proceeding. He also submitted that in view of the allegations made in the petition of complaint which was really demand of illegal gratification, is tantamount to extortion, & cannot be in the discharge of official duties. Therefore, the petitioners are not entitled to the protection afforded by Section 197 of the Code.
5. The objection of the opposite part as to the maintainability of the present application should first of all be disposed of. The petitioners had as in the instant petition, jointly challenged the impugned order of cognizance earlier by preferring Criminal Misc. No. 13772 of 1992 which was admitted on 13-5-93. The same was laid before a learned Single Judge of this Court for hearing on 10-1-94, but it was dismissed for default. The petitioners had then preferred a restoration application which was registered as Criminal Misc. No. 645/94, to recall the said order dated 10-1-94 and to restore Criminal Misc. No, 13772/92 to its original file, which was also dismissed by a learned Single Judge of this Court by order dated 2 -2-94 (Annexure-1). Relying on the provisions of Section 362 of the Code as well as the Judgment of the Supreme Court Simrikhia v. Dolley Mukherjee, learned Counsel for the O.P. submitted that the inherent powers cannot be exercised by this Court to review its own judgment. I am unable to accede to this contention. Section 362 of the Code reads as follows:
362. Court not to alter judgment,-Save as otherwise provided by this Court or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
It is manifest from the aforesaid facts that this Court had not delivered any judgment on the merits of the case. It was rather dismissed for non-appearance of the Counsel, and the provisions of Section 362 of the Code are not at all attracted. Therefore, the aforesaid judgment of the Supreme Court for the same reason is wholly inapplicable to the present case which basically dealt with the scope & content of Section 362 of the Code.
5.1 The petitioners have placed reliance on the judgment of a learned Single Judge of this Court reported in 1988 PLJR 121, Tarkeshwar Misra v. State of Bihar. In that case, the first quashing petition was dismissed as withdrawn long time ago. There was no progress in the trial in spite of complete absence of laches on the part of the accused-persons therein. In those circumstances, this Court had held that dismissal of the earlier application was no bar to the maintainability of a second application for quashing the prosecution.
5.2 Law is well settled that if an earlier quashing petition has been dismissed, not on merits, but on grounds like non-appearance of the Counsel, non-payment of Court fee etc., then a second application is maintainable. Accordingly, I have no hesitation in concluding that the present application in the circumstances stated above is maintainable.
6. Learned Counsel for the petitioners has propounded the following chronology of events to substantiate her contention that the complaint petition is not a bona fide prosecution, and is an after-thought to discredit the petitioners & their lawful actions:
1-10-91-The petitioners had checked the truck in question on the Dumka-Deoghar road and had demanded papers showing deposit of sales tax and the road permit.
1-10-91-The petitioners submitted the inspection report dated 1-10-91 and on the basis of which initiated proceedings under Section 31-(3) of the Bihar Finance Act calling upon the driver of the truck to show cause on 2-10-91 as to why penalty under Section 31(3) of the Act be not imposed. The same was registered as case No. 31(3) 3/91-92, & is marked Annexure-5 to the quashing petition.
2-10-91-Both Niranjan Pandey and Naresh Raut separately shown cause before the petitioners on 2-10-91. Neither of them had produced the road permit, nor did they mention that illegal gratification was demanded from the truck driver. The two show causes are marked Annexures-3 and 4 to the quashing petition.
2/3-10-91-The proceeding under Section 31 (3) of the Bihar Finance Act was concluded, and a fine of Rs. 5.700.05P was imposed on the opposite party. The order-sheet is marked Annexure-6 to the quashing application,
7-10-91–Naresh Raut filed an application in the aforesaid proceeding stating therein that owing to special circumstances, the road permit could not be produced by the driver of the vehicle, and the same was produced on 7-10-91. This application is marked Annexure-8.
8-10-91-This order in the aforesaid penalty proceeding is part of Annexure-6, and records that the fine had been paid and the truck had been ordered to be released.
28-10-91-The compliant petition was filed, marked Annexure-2.
17-3-93-The letter (Annexure-9/1), from the Joint Commissioner of Commercial Taxes (Admn.), Bhagalpur, Patna, to the headquarters in Patna, stating therein that the road permit in question was obtained on 5-10-91.
29-10-91-The appellate order whereby the aforesaid order dated 2/3-10-91 was set aside on the ground that the notice of the penalty proceeding was not served on the consignee in accordance with law. This order is marked as Annexure-13.
14-11-95-The revisional order was passed by the Commissioner of Commercial Taxes, whereby the appellate order was set aside and the penalty was directed to be imposed in the ratio or three times of sales tax and purchase tax. The revisional order is marked as Annexure-14.
6.1 On the the basis of the aforesaid chronology of events, learned Counsel rightly submitted that the delay in filing the complaint petition (Annexure-2) is unexplained, and was lodged only to discredit the petitioners and the action taken by them. Learned Counsel is right in her submission that the cause shown by Niranjan Pandey and Naresh Raut on 2-10-91 did not produce the road permit, nor did it mention that they were being harassed on account of their inability or refusal to meet the demand of illegal gratification, She is equally right in her submission that if the driver or the other persons in the truck had in their possession the road permit, they would have surely produced it at the time of inspection itself on the highway. It was, in fact, produced on 7-10-91, as is manifest from Annexure-8. This, therefore, appears to be consistent with the contents of the aforesaid letter dated 17-3-93 (Annexure-9/1), that the road permit in question had really been obtained on 5-10-91. In such circumstances, the complaint petition fled as late as on 28-10-91 appears to be an after-thought, and a mala fide attempt to discredit the petitioners as well as the action taken by them under the Act. There is a hiatus between 1-10-91 to 28-10-91. The delay is really gaping & unexplained.
6.2 Learned Counsel for the petitioners is, therefore, right in placing reliance on the judgment dated 27-7-99, passed by me in Criminal Misc. No. 6017 of 1993 G.C. Bahuguna and Ors. v. State of Bihar and Ors. reported in 1999 B.C.C.R., P 887, wherein it was held as follows:
3.2 Having considered the rival submissions, this Court is of the view that the present complaint case is undoubtedly a counter-blast to the aforesaid Digha P.S. Case No. 45/93, in an effort to destroy the police case and also to satisfy their vengeance. I have been informed by Counsel for the parties during the course of arguments that the eight accused-persons including the complainant were dismissed from service on 26-2-93, which undoubtedly added to the growing anger and vengeance on the part of the workmen. The alleged occurrence is said to have taken place on 24-293, and the present complaint petition was filed on 4-3-93. The effort on the part of the complainant before this Court to explain the delay on account of the arrest of the complainant is unconvincing for the reason that the complainant and his fellow workmen were engaged in a joint venture of trade union activity against the management. Therefore, there can be no doubt that other office-bearers and fellow workmen who had taken active part were available to start the criminal case, had the workmen really been victims. The complainant and others were released on bail on 26-2-93, and the hiatus between 27-2-93 and 4-3-93 lends sustenance to the submission of the petitioners. The delay is really gaping and unexplained. The genesis of both the cases is the same. In such circumstances, I have no hesitation in concluding that the present case is a counter blast to the said Digha P.S. Case No. 45/93. Accordingly, I hold that the present complaint case is not a genuine case, being a false and frivolous case against the management.
7. Learned Counsel for the opposite party has submitted that consideration of the documents in question which have been incorporated in the aforesaid chronology of events were not before the Magistrate and amounts to introducing the defence of the petitioner & is impermissible in a quashing petition. Learned Counsel relied on the judgment of the Supreme Court reported in 1991 (2) Cr.L.J. 438, State of Bihar v. P.P. Sharma, particularly paragraph 16 which is set out hereinbelow:
16. It is thus obvious that the “Annexures” were neither part of the police-reports nor were relied upon by the Investigating Officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating ‘the Annexure’ and affidavits as evidence and by converting itself into a trial Court, the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal Courts. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon “the Annexures” in support of its findings, we may briefly examine these documents.
7.1 I am unable to accede to the submission of the opposite party for the reason that all these documents relied on by the petitioners are part of a quasi-judicial proceeding under the Act and have not been rebutted in the counter-affidavit of the opposite party before me. The opposite party has not denied before me the veracity or the authenticity of the aforesaid documents. In such circumstances, I find and hold that the truck owner had failed to produce the road permit for perusal of the petitioners on 1-10-91, which was produced on 7-10-91, i.e. after conclusion of the proceeding under Section 31 of the Act. The reasonable despatch with which the aforesaid proceedings were concluded by the petitioners and the truck was promptly ordered to be released speaks of the bona fides of. the petitioners. I have, therefore, no hesitation in concluding that the present complaint petition is not a bona fide prosecution and was meant to discredit the petitioners and the bona fide action taken by them under the Act.
8. Learned Counsel for the petitioners next contended that the petitioners acted in due discharge of their duties and are, therefore, entitled to the protection of Section 197 of the Code.
8.1 Learned Counsel for the opposite party submitted that the substance of allegations in the petition of complaint (Annexure-2) is regarding the demand of illegal gratification which can never be a part of discharge of official duties. He has relied on the judgment reported in AIR 1948 PC 128 H.H.B. Gill v. The King. In his submission, the following portion of paragraph 30 of the judgment is relevant.
…A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does by virtue of his office. Applying such a test to the present case, it seems clear that Gill could not justify the acts in respect of which he was charged as acts done by him by virtue of the office that he held…
8.2 Learned Counsel for the petitioners is right in her submission that the previous sanction for prosecution of the petitioners in the facts and circumstances of the present case was essential. She has relied on a judgment of the Supreme Court , Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, paragraph 24 of which is set out hereinbelow for the facility of quick reference:
24. In Matajog’s 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 of police or judicial inquiry or even in the course of prosecution evidence may establish the necessity for sanction. In S.B. Saha’s 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’s case (supra), this Court observed that whether sanction is necessary or not may depend from stage to stage. In Matajog’s 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 inter-related 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 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 reaches 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.
8.3 Learned Counsel for the petitioners has also relied on an unreported judgment dated 17-8-99, passed by this Court in Criminal Misc. No. 4023/94, Devendra Kumar Sinha v. Sri Hari Narain Singh and Anr. wherein similar questions under Section 197 of the Code had been decided.
9. As already found hereinabove, the petitioners were acting in due discharge of their duties in inspecting the truck in question on the highway, and the occupants of the truck were unable to produce the road permit before the petitioners at the time of inspection. They also unable to produce the same during the course of penalty proceeding. The same was in fact produced on 7-10-91 i.e. after conclusion of the penalty proceeding. It has also been found hereinabove that the complaint petition is not bona fide and was meant to discredit the petitioners and the action taken by them. In such circumstances, I conclude that the petitioners are entitled to the protection afforded by Section 197 of the Code. The prosecution cannot be allowed to continue in the absence of previous sanction for prosecution of the petitioners.
10. Once it is held that it was not a bona fide prosecution, and that the prosecution cannot continue in the absence of previous sanction, there is no need to decide the question whether or not the alleged offence is made out in terms of Section 384, I.P.C.
11. In the result, this quashing petition is allowed, and the impugned order of cognizance dated 22-5-92, passed by the learned Judicial Magistrate, Pakaur, In P.C.R. Case No. 173/91 / T.R. case No. 362/92, is hereby quashed.