Crl. Revision No.2041 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Revision No.2041 of 2008 Date of Decision: 26.5.2010 Naresh Kumar Behl .....Petitioner Vs. State of Punjab and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.R.S. Cheema, Sr.Advocate with Mr.Rajiv Trikha, Advocate for the petitioner. Mr.Rajesh Garg, Addl.A.G.Punjab for respondent no.1. Mr. Yogesh Putney, Advocate for the complainant-respondent no.2. .... RAJIVE BHALLA, J The petitioner prays for quashing of the order dated 11.8.2008, passed by the Sessions Judge, Gurdaspur, framing a charge under Section 306 of the Indian penal Code (hereinafter referred to as `the IPC') for abetment of the suicide by one Sohan Singh. The petitioner has been arraigned as an accused in FIR No.302 dated 27.12.2002 registered under Section 306 of the Indian Penal Code at Police Station Division No.1, Pathankot. The deceased Sohan Singh, who was working as an Assistant in the Telecom department at Hoshiarpur, was transferred to Pathankot on 1.11.2002. He committed suicide on 26.12.2002 by jumping from the telephone Exchange building. The petitioner was working as Chief Accounts Officer in the office of General Manager, Crl. Revision No.2041 of 2008 2 Telecom, Bharat Sanchar Nigam Ltd., (BSNL) Pathankot. Sh. Surjit Singh, an uncle of the deceased lodged the FIR. A relevant extract of the FIR reads as follows :- “On 12.11.2002, I had come to my house on four days leave and at about 9.00 PM, I had been to my nephew Sohan Singh's house. Sohan Singh had come to his house at about 8.30 P.M., his wife Ekta Devi was also present at the house. I said to Sohan Singh,”Beta, you used to come at 6.00 P.M. when you were posted at Hoshiarpur but now you despite being posted at a nearby station Pathankot, you come late at about 8/9 P.M, whether you fell it near or far away ?” whereupon he told that the Chief Accounts Officer N.K. Behl, in his office harasses him and he sobbed. I consoled him by saying that sometimes, the officers intentionally cause harassment at a new station but he said, “The other staff members are also feel very much harassed by him. He sends me to deliver the dak at Chandigarh on every second or third day and also harasses me for doing his domestic works and compels me to report on duty in the office even on the holidays and when I requested him to let me go to my house being two holidays ahead, he threatened me with transfer, whereby I feel very my mentally depressed.” I tried to persuade him no to worry a lot but he pleaded that the C.A.O. harassed him a lot and threatens him to terminate his services. After persuading him, I came back to my house. Yesterday, i.e. 26.12.02 in the evening the telephonic message was received at the house that Sohan Singh has died by jumping from the Crl. Revision No.2041 of 2008 3 building of the Telephone Exchange and asked me to reach the house at the earliest. At that time, it came to my mind that what ever my nephew had been telling me, have come true. I have got recorded my statement with you that my nephew could not fall due to slip of his foot rather in fact he has taken this extreme step due to being harassed by the C.A.O. and a ruqa is found from his pocket and I submit the photo copy thereof before you and the original Ruqa is in the possession of C.A.O. I have heard the statement, which correct. A legal action may kindly be taken against him.” The police proceeded to investigate these allegations and thereafter filed a final report before the trial court. The petitioner filed an application for discharge on merits and on the plea that he could not be prosecuted without prior sanction, as required by Section 197 of the Code of Criminal Procedure (hereinafter referred to as `the Code'). The trial court, after considering the material collected by the police, rejected both the prayers. Vide order dated 11.8.2008, the trial court proceeded to frame a charge under Section 306 of the IPC. Counsel for the petitioner submits that the merits of the case apart, the petitioner is admittedly a public servant. The allegations levelled against the petitioner are so intrinsically linked to the discharge of his duties as to be inseparable, therefrom. The trial court has, therefore, committed an error in rejecting the petitioner's plea that he cannot be prosecuted without prior sanction. It is argued that as the deceased joined the petitioner's organisation one and a half month before his demise, it is Crl. Revision No.2041 of 2008 4 unbelievable that in this short span of time, the petitioner could have harassed the deceased to such an extent, as to compel him to commit suicide. The allegations levelled against the petitioner are that he asked the deceased, to work on holidays, to repeatedly travel to Chandigarh to deliver dak, used harsh and strong language and threatened to get the deceased transferred. It is argued that these allegations fall squarely within a legitimate and reasonable discharge or purported discharge of official duties. At its worst the petitioner may be accused of being a hard task master or an ill behaved officer but this alone cannot not deprive him of the protection of Section 197 of the Code. It is submitted that Sohan Singh was transferred to Pathankot on 1.11.2002. He left the office on 20.12.2002. As 21st and 22nd December were Saturday and Sunday, he did not visit the office. On 23.12.2002, he was on tour to Chandigarh. He did not report for duty on 24.12.2002 and as 25thDecember, 2002 was a holiday, he joined the office only on 26.12.2002. The petitioner, therefore, did not meet the deceased between 20.12.2002 and 25.12.2002. This gap of six days between the last alleged interaction and the suicide, is by itself sufficient to negate the charge of abetment of suicide. It is further argued that directing a subordinate to perform his duty or asking him to go on tour can by no stretch of imagination be said to fall beyond a bonafide discharge or purported discharge of official duties. To prosecute the petitioner, on this evidence, without prior sanction, is a travesty of justice. Reliance for the above arguments is placed upon the following judgements : Abdul Wahab Ansari Vs. State of Bihar, 2000(4) RCR (Crl.) 572, P.K. Pradhan V. State of Sikkim, AIR 2001, S.C. 2547, State Crl. Revision No.2041 of 2008 5 of H.P. Vs. M.P. Gupta, 2004(2) SCC 349, S.K. Zutshi and another Vs. Bimal Debnath and another, 2004(3) RCR (Crl.) 813, K. Kalimuthu Vs. State AIR 2005 SC 2257, State of Karnataka Vs. C. Nagarajaswamy, 2005(4) RCR (Crl.) 511, Rakesh Kumar Mishra V. State of Bihar and others, 2006 (1) SCC 557. Counsel for the petitioner further submits that even if the allegations levelled against the petitioner are accepted as true, they do not fulfill the ingredients of an offence of “abetment”, as defined under Section 107 of the IPC. The deceased joined at Pathankot on 1.11.2002 and committed suicide on 26.12.2002. The petitioner did not meet the deceased after 20.12.2002. The cause of suicide, therefore, cannot be the acts of harassment alleged against the petitioner.. The allegations of harassment and mental torture, levelled by the complainant during this period of 42 days are general in nature and, therefore, do not make out any offence, much less an offence of abetment of suicide. It is further argued that as per the complainant's statement, the deceased informed him that the petitioner harasses him, sends him to deliver dak at Chandigarh, every 2-3 days, compels him to do his domestic work and directs him to report for duty on holidays. These allegations are by themselves insufficient to prosecute the petitioner for abetment of suicide. The suicide note, is a photostat copy and, therefore, cannot be taken into consideration and is even otherwise, insufficient to charge the petitioner with the offence of abetment of suicide. It is further argued that the statements made by Ashok Kumar, Subhash Kumar, Harbans Lal, Smt.Vandana Malik, J.S. Malik, Harbans Singh, Mahinder Singh and Pawan Kumar merely allege, without reference to any particular incident, that the petitioner is responsible for the suicide. It is Crl. Revision No.2041 of 2008 6 argued that in the absence of the details of harassment or any reasonable connection between the allegations levelled and the unfortunate suicide, the petitioner cannot be arraigned as an accused. Counsel for the respondents, however, submits that there is sufficient evidence on record to frame a charge. The question at this stage is, whether there is sufficient evidence to proceed with the trial and not necessarily, whether this material would lead to a successful conclusion of the prosecution. The statements made by the witnesses, including the office staff, clearly establish that the deceased was harassed by the petitioner, compelling him to commit suicide. A court exercising revisional jurisdiction cannot weigh the evidence so as to record a finding that there is no evidence of abetment. It is argued that it was no part of the petitioner's duty, as a superior officer, to abuse and harass his subordinates. The argument that the petitioner is entitled to the protection of Section 197 of the Code was, therefore, rightly rejected by the trial court. Counsel for the complainant, on the other hand, states that the complainant has filed an affidavit stating that Sohan Singh was under mental stress for many other reasons and was a case of chronic depression. Counsel for the complainant further submits that respondent no.2 has realised the error in his statement made before the police and, therefore, has no objection, if the charge is quashed. I have heard learned counsel for the parties and perused the impugned orders. The first point that requires consideration is whether the petitioner, who is admittedly a public servant, can be prosecuted without prior sanction. Crl. Revision No.2041 of 2008 7 Admittedly, the petitioner is a public servant. Section 197 of the Code, postulates that where a public servant “..... is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty......”, he shall not be arraigned, as an accused, without prior sanction of the appropriate government. Section 197 of the Code affords protection, to a public servant, where the alleged act/acts are so intrinsically linked to the discharge or purported discharge of his official duty as to be inseparable, therefrom. In other words, it is the nature of the alleged act that would determine, whether an accused is entitled to the protection of Section 197 of the Code. In order to appreciate the true import of Section 197 of the Code and to determine whether the petitioner is entitled to its protection, it would be appropriate to refer a few important judgements of the Hon'ble Supreme Court. In B. Saha and others Vs. M.S. Kochar, 1979 (4) SCC 177, while considering the nature of the protection provided by Section 197 of the Code, the Hon'ble Supreme Court held as follows : “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 197(1) 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 Crl. Revision No.2041 of 2008 8 their umbrella every act constituting an offence, committed in the course of same transaction in which official duty is performed or purports to be performed. The right approach to the import of these words lies between 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 197(1), an act constituting an offence directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. Use of expression 'official duty' implies that the act or 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 but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.” The ratio in K.Kalimuthu (supra), would also require reference :- “The protection given under Section 197 is to protect responsible public servants against institution of possible vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or Crl. Revision No.2041 of 2008 9 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 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 performance of the official duty, the excess will not be a 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 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 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 Crl. Revision No.2041 of 2008 10 can be performed both in the discharge of the official duty as well as in the dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. 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. 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 or could not have been 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.” In Rakesh Kumar Mishra's case (supra), while dealing with Section 197 of the Code, it was held as under :- “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 Crl. Revision No.2041 of 2008 11 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 a 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 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 Crl. Revision No.2041 of 2008 12 official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. 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. 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 Section 197 does not get immediately attracted on institution of the complaint case.” The judgement in Parkash Singh Badal and another V. State of Punjab and others (2007) 1 SCC 1, would also require reference :- 33. As regards applicability of Section 197 of the Crl. Revision No.2041 of 2008 13 Code, the position in law has been elaborately dealt with in several cases. 34. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr., 1988(1) RCR(Crl.) 35 (SC) : (AIR 1988 SC 257), this Court while emphasising on the balance between protection to the officers and the protection to the citizens observed as follows :- "It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence." Crl. Revision No.2041 of 2008 14 35. “8. 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 a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant Crl. Revision No.2041 of 2008 15 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 must fall within the scope and range of the official duties of the public servant concerned. 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. 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.... This aspect makes it clear that the concept of Section 197 does not immediately get attracted on institution of the complaint case. 9. XXX XXX XXX 10. XXX XXX XXX 11. Such being the nature of the provision, the question is how should the expression, 'any offence alleged to have been committed by him while acting Crl. Revision No.2041 of 2008 16 or purporting to act in the discharge of his official duty', be understood? What does it mean? 'Official' according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and Ors. v. M. S. Kochar (1979(4) SCC 177), it was held : "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 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section