HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 Case :- APPLICATION U/S 482 No. - 43297 of [SECTION]9 Applicant :- [ENTITY] Opposite Party :- State of U.P. and Another Counsel for Applicant :- [ENTITY],[ENTITY] Counsel for Opposite Party :- G.A. Hon'ble [ENTITY],J.
1. Today, Sri [ENTITY] has filed vakalatnama on behalf of opposite party no. 2 which is taken on record.
2. Heard Sri [ENTITY], learned counsel for the applicant, Sri [ENTITY], learned counsel for opposite party no. 2, Sri [ENTITY], learned A.G.A. for the State and perused the record.
3. By means of present 482 [ACT] application, the applicant has prayed for quashing of the entire proceedings of case crime no. 263 of [SECTION]8 under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT], police station Jahanganj, District Azamgarh.
4. The brief facts of the case are that an F.I.R. was lodged by opposite party no. 2 Smt. [ENTITY] on 11.12.[SECTION]8 at police station Jahanganj, District Azamgarh for the offence under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT] with an allegation that the applicant had helped the father of the accused of a case of rape by changing the date of birth of her minor daughter, namely, Km. [ENTITY]. It is alleged that on 13.5.[SECTION]8, one [ENTITY] had committed rape of the daughter of the complainant for which an F.I.R. was lodged by her which was registered as case crime no. 116 of [SECTION]8. It seems that the father of the accused, in order to save his son from criminal prosecution, in collusion with the applicant, has done fraud with the official papers and have issued a transfer certificate showing her date of birth as 8.2.2000, thereafter, it was signed by the Block Education Officer and Basic Education Officer. The said certificate was filed in the bail application of [ENTITY] before this Court. It is alleged that when she came to know about the said fact through her counsel various complaints were made by her against the applicant on which on 27.9.[SECTION]8, the applicant was given charge-sheet by the Department and in the meanwhile he was suspended. It is also alleged that before his suspension, the applicant in order to save his suspension, had stolen certain papers from the file. It is further alleged that after rejection of bail, the accused [ENTITY] started threatening him due to which, she is terrorized.
5. After investigation, the investigating officer submitted charge-sheet against the applicant on 14.7.[SECTION]9 and the learned Magistrate on the basis of the charge-sheet took cognizance of the offence on 12.10.[SECTION]8 and summoned the applicant to face trial.
6. Learned counsel for the applicant submits that the applicant is posted as Principal of a Primary Education Institution and the cognizance which has been taken on the basis of charge-sheet is absolutely wrong as no sanction for prosecution of the applicant under [SECTION] [ACT] has been obtained from the competent authority and without sanction the proceedings against the applicant is liable to be quashed. He submits that the applicant in discharge of his official duty had issued the transfer certificate of the daughter of the informant wherein her date of birth has been mentioned as 8.2.2000 which was endorsed in the admission register of primary school Gambheervan-I, Rani ki Sarai, district Azamgarh where the daughter of the informant studied upto Class-III and she did not turn up in the said school and finally on 25.8.[SECTION]7, she left the school and a transfer certificate was prepared on 12.10.[SECTION]7. He further submits that the date of birth which was mentioned in the school register of the minor daughter of the opposite party no. 2 was on the information given by the grand mother of the minor daughter of opposite party no. 2 at the time of her admission. He next submitted that at the most the negligence on the part of the applicant is that he had issued the transfer certificate to a person, who was not authorized to get the same issued except the opposite party no. 2 or any of the family member of Km. [ENTITY]. He pointed out that a departmental proceedings with respect to the same allegation is going on, hence the present proceeding is liable to be quashed. In support of his argument, he has placed reliance on the judgment of the Apex Court in the case of [PRECEDENT] through C.B.I. reported in ([SECTION]6) 4 SCC (Cri.) 15.
7. For ready reference, para-39 of the case of [PRECEDENT] through C.B.I. (Supra) is quoted hereinbelow:-
"39. The principles emerging from the aforesaid decisions are summarized hereunder :
39.1 Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.
39.2 Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent [SECTION] [ACT] has to be construed narrowly and in a restricted manner. III.
39.3 Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under [SECTION] [ACT] There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.
39.4 In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under [SECTION] [ACT], but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of [SECTION] [ACT] would apply.
39.5. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.
39.6 Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
39.7 Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
39.8 Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.
39.9 In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial."
8. Learned counsel for the applicant has further placed reliance on the judgment of the Apex Court in the case of [PRECEDENT] reported in ([SECTION]6) 3 SCC (Cri.) 160 and drawn the attention of the Court towards paras-13 and 14 of the case of [PRECEDENT] (Supra) which are quoted hereinbelow:-
" 13. In [PRECEDENT], this Court has laid down thus :
"59. For the purpose of attracting the provisions of [SECTION] of the [ACT], it is not necessary that they must act in their official capacity but even where public servants purport to act in their official capacity, the same would attract the provisions of [SECTION] of the [ACT]. It was so held by this Court in [PRECEDENT]. The question came up for consideration before this Court in [PRECEDENT] wherein it was held: (AIR pp. 48-49, para 17) "17. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in [SECTION] of the Code; any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty'. But the difference is only in language and not in substance.
The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under [SECTION], unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits.
What we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In [PRECEDENT] [ENTITY], J. observes:
The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.' The interpretation that found favour with [ENTITY], J. in the same case is stated by him in these terms at p. 56:
There must be something in the nature of the act complained of that attaches it to the official character of the person doing it.' In affirming this view, the Judicial Committee of the Privy Council observed in Gill case : [PRECEDENT] 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. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.' [PRECEDENT] is referred to with approval in the later case of [PRECEDENT] but the test laid down that it must be established that the act complained of was an official' act appears to us unduly to narrow down the scope of the protection afforded by [SECTION] of the [ACT] as defined and understood in the earlier case. The decision in [PRECEDENT] does not carry us any further; it adopts the reasoning in Gill case "
60. The said principle has been reiterated by this Court in [PRECEDENT] in the following terms: (SCC pp. 184-85, paras 17-
"17. The words any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in [SECTION] of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of [SECTION], an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by [ENTITY], J. in [PRECEDENT]
16. It is the quality of the act that is important, and if it falls within the scope and range of his official duties the protection contemplated by [SECTION] of the [ACT] will be attracted'.
18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."
14. In view of the aforesaid discussion, it is clear that the omission complained of due to which offence is stated to have been committed, was intrinsically connected with discharge of official duty of the appellant, as such the protection under [SECTION] [ACT] from prosecution without sanction of the competent authority, is available to the appellant. Thus, he could not have been prosecuted without sanction. It would be for the competent authority to consider the question of grant of sanction in accordance with law. In case sanction is granted only then the appellant can be prosecuted and not otherwise. Resultantly, the impugned orders are set aside, the appeal is allowed."
9. Learned counsel for the applicant also cited the judgment of the Apex Court in the case of [PRECEDENT] reported in ([SECTION]6) 2 SCC 143 and has drawn the attention of the Court towards para-35 of the case of [PRECEDENT] (Supra) which is reproduced hereinbelow:-
"35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under [SECTION] of [ACT], it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under [SECTION] of [ACT] was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence."
10. Per contra, learned counsel appearing for opposite party no. 2 and learned A.G.A. have vehemently opposed the prayer for quashing of the entire proceedings and the impugned order on the ground which has been argued by learned counsel for the applicant and submitted that the act of the applicant in indulging in a criminal act by issuing a forged transfer certificate by wrongly mentioning the age of the minor daughter of the opposite party no. 2, cannot be said to be an act in discharge of official duty, hence no sanction is required for such act before prosecuting the applicant. In this regard, reliance has been placed on the judgment of the Apex Court in the case of Devendra Prasad Singh vs. State of Bihar & another reported in [SECTION]9 Lawsuit (SC) 1007 and submitted that in view of the same, the order taking cognizance of the offence does not suffer from any illegality, perversity, hence the present application is liable to be rejected.
11. Having considered the rival submissions of learned counsel for the parties and perused the record.
12. Admittedly, the applicant is the Principal of the Primary Education Institution under whose signature the transfer certificate of the minor daughter of opposite party no. 2 was issued a copy of which has been annexed as annexure-7 to the affidavit filed in support of the present application and the same was counter signed by the Block Development Officer and Basic [ENTITY]. The opposite party no. 2 has claimed that the date of birth of her minor daughter which has been mentioned in the transfer certificate issued by the applicant was a wrong one as her daughter's date of birth is 7.8.2006 which was mentioned in the admission register at serial no. 1392 of primary school Gambheervan-II, district Azamgarh -II where she studied upto class-III. It is alleged by her that though her daughter was admitted in the primary school but as she fell seriously ill, she did not go to study in the said school. It further reveals from the record that the medical examination of the victim girl was also conducted in a case which was registered against the accused [ENTITY] as case crime no. 116 of [SECTION]8 for the offence under [SECTION], [SECTION], [SECTION] [ACT] and 3/4 [ACT] by opposite party no. 2 against [ENTITY] wherein as per the ossification test which was conducted, it was opined in the report dated 18.5.[SECTION]8 by the C.M.O., Azamgarh that the victim is aged about 14 years which goes to show that the victim was a minor girl. On the complaint which was made by the opposite party no. 2 to the District Basic Shiksha Adhikari, Azamgarh vide complaint dated 16.8.[SECTION]8, a departmental enquiry has been ordered and the applicant has been suspended till pendency of the enquiry. In the enquiry, the applicant has given some explanation for issuance of the disputed transfer certificate wherein the date of birth of the victim girl has been mentioned as 8.2.2000. The contention which has been raised by learned counsel for the applicant that the transfer certificate which was issued by the applicant in the name of the victim girl showing her date of birth 8.2.2000 in place of 7.8.2006 which is alleged to be a forged documents issued under the signature of the applicant and counter signed by the Block Development Officer and Basic [ENTITY], was an act done in discharge of his official duty is not at all acceptable as a criminal act of forging documents cannot be in any manner said to be an act in discharge of official duty. The sanction required for the prosecution of the applicant before taking cognizance by the Magistrate on the basis of charge-sheet submitted against him as has been argued by learned counsel for the applicant vitiates the proceedings against him, is also not sustainable in the eyes of law. The case law which has been relief upon by the applicant cannot be made applicable in the facts and circumstances of the present case as in the case which has been relied upon by learned counsel for the applicant, i.e., [PRECEDENT] through C.B.I. (Supra), the Apex Court after going through its earlier decisions has held that public servant is not entitled to indulge in criminal activities and in such case sanction under [SECTION] is not required and to that extent [SECTION] has been construed narrowly and in a restricted manner and it further observe that some times certain questions about requirement of sanction under [SECTION] [ACT] cannot be decided without evidence. Such questions like good faith or bad faith of public servant can be decided on conclusion of trial. In the present case also it would be expedient in the interest of justice that the trial court is at liberty to prima facie proceed as per prosecution version and the applicant be given opportunity to adduce evidence in his support and if at later stage it comes to the notice of the Court that there was reasonable nexus of incident and discharge of official duty, the Court shall re-examine the issue of sanction and take decision as per law. The said issue of sanction can be taken from stage to stage and even at the conclusion of the trial at the time of judgment.
13. In view of the above settled principle of law as has been referred above, I do not find any infirmity or illegality in the order taking cognizance, the prayer for quashing the impugned order as well as the entire proceedings based on the charge-sheet is refused.
14. The present 482 [ACT] application lacks merit and is, accordingly, dismissed.
Order Date :- 2.12.[SECTION]9 Shiraz