SCR.A/1249/2007 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1249 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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 ? ========================================================= MAGANBHAI D. BHADAJA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR MRUGEN K PUROHIT for Applicant(s) : 1, MR.MENGDEY, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 25/01/2008 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of India read with Section 482 of the SCR.A/1249/2007 2/15 JUDGMENT Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code'), the petitioner has prayed for the following substantive reliefs. “13(b). The Hon'ble Court be pleased to issue an appropriate writ, order or direction quashing and setting aside the impugned FIR bearing C.R.No.I-0044/2005 registered with Tankara Police Station. 13(B)(1). This Hon'ble Court may be pleased to issue appropriate writ, order or direction and may be pleased to quash and set aside the Criminal Case No.2636 of 2005 pending before the Judicial Magistrate, First Class at Morbi and also may be pleased to issue a writ of certiorari or any other writ in the nature of certiorari and may be pleased to quash and set aside the judgment and order dated 1st June, 2006 passed below Exh.16 in Criminal Case No.2636 of 2005 pending before the Judicial Magistrate, First Class, Morbi.” 2. The facts giving rise to the present petition are that the petitioner was working as a Talati-cum-Mantri in village Mitana. A complaint was lodged against the petitioner by one Shri Harjivanbhai Chaturbhai Mareji, the Circle Officer with the Mamlatdar's Office, Tankara, for the SCR.A/1249/2007 3/15 JUDGMENT offences punishable under Section 463, 464, 465, 468, 470 and 471 of the Indian Penal Code. Charge-sheet in respect of the aforesaid complaint was submitted on 19th March, 2005 and was registered as Criminal Case No.2636 of 2005. 3. The petitioner preferred an application at Exh.16 for discharge before the learned Judicial Magistrate, First Class at Morbi, mainly on the ground that no prior permission of the State Government had been obtained before submitting the charge-sheet, as contemplated under Section 197 of the Code. By the impugned order dated 1st June, 2006, the said application came to be rejected. Hence, the petitioner has filed the present petition seeking the reliefs as noted herein above. 4. Heard Mr.Mrugen Purohit, learned Advocate for the petitioner and Mr.M.R.Mengdey, learned Additional Public Prosecutor appearing on behalf of the respondent-State of Gujarat. 5. Learned Advocate for the petitioner has submitted that the allegations levelled in the F.I.R., are absolutely false and fabricated and the SCR.A/1249/2007 4/15 JUDGMENT petitioner is an innocent person and has not committed any offence. It is further submitted that there is no evidence against the petitioner with regard to the charges levelled against him in the F.I.R. or even in the charge-sheet papers. It is urged that there appears to be a preplanned conspiracy against the petitioner by the Talati-cum- Mantri, who has been appointed subsequent to the petitioner and he might have forged the document so as to see that the petitioner can be falsely implicated in the said crime. It is submitted that there was some enmity between the petitioner and the said Talati-cum-Mantri and therefore, malicious proceedings have been initiated against the petitioner. However, the main plank of the submissions of the learned Advocate for the petitioner was that the petitioner is a Government employee and, therefore, before initiation of any proceedings against the petitioner, the sanction of the Government, as contemplated under Section 197 of the Code is required to be obtained. It is submitted that so far as the present case is concerned, the petitioner has acted in discharge of his official duties and therefore, valid sanction ought to have been obtained by the prosecution against the SCR.A/1249/2007 5/15 JUDGMENT petitioner before initiation of the criminal case. It is further submitted that the act complained of is directly concerned with the official duties of the petitioner and the petitioner has done the act in the discharge of his official duties and, therefore, it is incumbent upon the prosecution to obtain sanction from the State Government. It is argued that as the petitioner had acted in his official capacity, even if there is any breach in the discharge of the official duties of the petitioner, the prosecution was required to obtain prior sanction from the State Government, which is lacking in the present case and therefore, the entire case against the petitioner is required to be quashed and set aside. 6. In support of his contentions, the learned Advocate for the petitioner has placed reliance upon the following decisions. 1. The decision of the Supreme Court in the case of Centre for Public Interest Litigation and Anr. Vs. Union of India and Anr. (2005 8 SCC 202). 2. The decision of the Supreme Court in the case of Rakeshkumar Mishra Vs. State of SCR.A/1249/2007 6/15 JUDGMENT Bihar and Ors. (2006 1 SCC 557). 3. The decision of this Court in the case of Sudesh Garg and Ors. Vs. State of Gujarat and Ors., (2007 1 GLH 346). 7. It is submitted that the Supreme Court has held that the real test to be applied to attract the applicability of Section 197 (3) of the Code is whether the act which is done by a public officer and is alleged to constitute an offence was done by the Public Officer whilst acting in his official capacity though what he did was neither his duty nor in his official capacity as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the Public Officer would be protected. It is accordingly submitted that going upon above test, it is amply clear that Section 197 (1) of the Code is attracted to this case, as the offences in question are alleged to have been committed by the petitioner while acting in his SCR.A/1249/2007 7/15 JUDGMENT official capacity. 8. On the other hand, Mr.M.R.Mengdey, learned Additional Public Prosecutor for respondent-State of Gujarat has opposed the grant of any relief in favour of the petitioner. It is submitted that the allegations made in the F.I.R., clearly constitute the offences with which the petitioner is charged. It is further submitted that the allegations against the petitioner are in respect of the creating false record and tampering with the official record which in no manner could be said to be in the discharge of his official duty and as such there being no merit in the petition, the same deserves to be summarily dismissed. 9. Before examining the legal issues raised in the present petition, it would be necessary to refer to the F.I.R. in question to examine the nature of the offences alleged against the petitioner. A perusal of the F.I.R. shows that the charge against the petitioner is of creating false record by tampering with the revenue record whereby the name of one Harkha Jiva, has been entered into the revenue record vide mutation entry No.16 in respect of 16 SCR.A/1249/2007 8/15 JUDGMENT acres of Kharaba Land of Survey No.729. Another allegation is that of issuing false Village Form No.7/12 and 8-A certificates. It is also alleged that the petitioner has created a false order in pursuance of which land has been given to one Mohanbhai Karsanbhai and receipt dated 14th July, 2000 for Rs.21,344/- is issued to him; whereas on record a receipt for Rs.44/- has been placed. 10. A perusal of the F.I.R. shows that the allegations levelled therein clearly constitute the offences punishable under Sections 463, 464, 465, 468, 470 and 471 of the Indian Penal Code. In the circumstances, there is no merit in the petition so far as the petitioner seeks quashing of the F.I.R. bearing C.R.No.I-0044/2005 registered with Tankara Police Station. 11. As regards the the contention that before initiation of any proceedings against the petitioner, sanction of the Government as contemplated under Section 197 of the Code is required to be obtained, it would be necessary to examine as to whether the offences alleged against the petitioner have been committed while discharging his official duty or SCR.A/1249/2007 9/15 JUDGMENT whether the act complained of is directly concerned with the official duty of the petitioner. 12. The Supreme Court in the case of Center for Public Interest Litigation (Supra) has held as follows. 9. 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 they choose 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 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 SCR.A/1249/2007 10/15 JUDGMENT 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 much fall within the scope and range of the official duties of the public servant concerned. It is the quality of the fact 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 SCR.A/1249/2007 11/15 JUDGMENT Section 197 does not get immediately attracted on institution of the complaint case. 10. Use of the expression “official duty” implies that the act of omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 11. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed.” 13. In light of the aforesaid decision of the Supreme Court, this Court has to examine as to whether the act or omission for which the petitioner has been charged has reasonable connection with discharge of his duty, in which case it must be held to be official and the provisions of Section 197 of the Code would be applicable. 14. As can be seen from the F.I.R. in question, the offences alleged against the petitioner are under SCR.A/1249/2007 12/15 JUDGMENT Sections 463, 464, 465, 468, 470 and 471 of the Indian Penal Code. The said offences pertain to forgery, making false documents, forgery for the purpose of cheating and using as genuine forged documents. The allegation in the F.I.R. is that the petitioner has tampered with the revenue record by entering the name of one Harkha Jiva in respect of certain lands, thereby creating false record. The other allegations are in respect of creating a false order and giving land on the basis of the said order to one Mohanbhai Karsanbhai and taking valuable consideration in the form of money for grant of the said land and placing on record a receipt for Rs.44/- only when the receipt for Rs.21, 344/- had been issued to him and issuing false Village Form No.7/12 and 8-A Certificate. 15. The Supreme Court in the case of State of H.P. Vs. M.P.Gupta, (2004 2 SCC 349), has held that Section 467, 468 and 471 of the Indian Penal Code, relate to forgery of valuable security, Will, etc; forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of SCR.A/1249/2007 13/15 JUDGMENT the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar. 16. In case of Shambhoo Nath Misra Vs. State of U.P. And Others [(1997) 5 SCC 326], the Supreme Court while examining the question as to when a public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc., can be said to have acted in the discharge of his official duty, has held as follows. “5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge.” 17. While examining the facts of the present SCR.A/1249/2007 14/15 JUDGMENT case in light of the aforesaid decisions of the Supreme Court, it is apparent that the petitioner is alleged to have committed the offence of fabrication of record as well as forgery for the purpose of cheating and using as genuine a forged document. As held by the Apex Court in the aforesaid decisions, it is not the duty of the public servant to fabricate false records and misappropriate public fund etc., in furtherance of or in discharge of his official duties. In these circumstances, the offences which the petitioner is alleged to have committed can in no manner be said to have been in the discharge of his official duty. Under these circumstances, the contention raised on behalf of the petitioner that the proceedings could not have been initiated against him without prior sanction of the State Government under Section 197 of the Code, is misconceived and does not merit acceptance. 18. For the foregoing reasons, the petitioner is also not entitled to the relief prayed for vide paragraph 13(B)(1). 19. In above view of the matter, this Court finds no merit in the petition, the same is SCR.A/1249/2007 15/15 JUDGMENT accordingly summarily dismissed. (H.N.DEVANI, J.) sompura