Criminal Misc. No.79052-M of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.79052-M of 2006 Date of decision: April 07, 2008 Kishan Chand ...Petitioner Versus State of Haryana and another ..Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Narender Mukhi, Advocate for the petitioner. Mr. Surinder Saini, Advocate, for respondent No.2. RAJESH BINDAL J. 1. Prayer in the present petition is for setting aside the order passed by the Judicial Magistrate Ist Class, Sonepat whereby in a complaint filed under Section 420/467/468/471 IPC, the petitioner has been summoned vide order dated 21.01.2006. The challenge is also to the order dated 20.09.2006 passed by the learned Additional Sessions Judge, Sonepat whereby that of the learned Judicial Magistrate Ist Class was upheld in revision filed by the petitioner. 2. Briefly, the facts as stated in the petition are that respondent No.2-complainant filed a complaint against the petitioner and another accused with the allegation that respondent no.2-complainant was cheated by the petitioner in connivance with other person and the money deposited by him in the Post Office was mis-appropriated by them with connivance of each other. On recording of statement of the complainant, the Court was prima-facie not satisfied to issue process to the petitioner, accordingly direction was given to the police to investigate the matter under Section Criminal Misc. No.79052-M of 2006 -2- 202 Cr.P.C. On receipt of report of the police after investigation, the learned Judicial Magistrate Ist Class issued process against the petitioner vide impugned order dated 21.01.2006. In revision before the learned Addl. Sessions Judge the petitioner failed. 3. Learned counsel for the petitioner submitted that the mere fact that the process was not issued to the petitioner merely on the statement of respondent no.2-complainant under Section 200 Cr.P.C. shows that the Court was not prima-facie satisfied with the allegation made in the complaint. It is for this reason only that the police was directed to investigate the allegation. Thereafter, without even considering the report submitted by the police, process has been issued against the petitioner. Further submission is that the petitioner was then Post Master at Head Post Office, Sonepat. Accordingly, the petitioner being a public servant sanction for his prosecution was pre-requisite under Section 197 Cr.P.C. before prosecution could be initiated against him. Further it is submitted that it is Manohar Lal, who had cheated the respondent no.2-complainant and not the present petitioner and he had nothing to do. Whatever was done by the petitioner was in his official capacity. It is further submitted that as for the same offence FIR No. 268 dated 09.11.2004 already stood registered at Police Station Sonepat, the complaint was not maintainable. 4. Learned counsel for respondent No.2 raised a preliminary objection regarding the maintainability of the present petition filed under Section 482 Cr.P.C. stating that the petitioner having availed of his remedy of revision before the learned Additional Sessions Judge cannot file the present petition under the garb of quashing under Section 482 Cr.P.C. once the second revision is specifically barred. 5. Replying to the arguments of learned counsel for the petitioner on merits, learned counsel for respondent no.2-complainant submitted that Criminal Misc. No.79052-M of 2006 -3- the complainant in the present case has been cheated in active connivance with the petitioner as Rs. 3 lacs had been withdrawn from his account by forging his signature as change in specimen signature was effected in the records. In fact it was the petitioner who had directed the complainant to contact Manohar Lal-agent, so he cannot be permitted to plead ignorance. 6. As far as FIR is concerned, the submission is that the complainant had not lodged any FIR. It was only that his statement was recorded during investigation in FIR regarding a scam in the post office where large number of people were cheated. It is further submitted that report submitted by the police was duly considered by the Court below. As regard the sanction under Section 197 Cr.P.C. is concerned, relying upon the judgment of Hon'ble the Supreme Court in Parkash Singh Badal and another v. State of Punjab and others (2007) 1 Supreme Court Cases 1, the submission is that an act of cheating done by the petitioner cannot be said to be in discharge of his official duty, accordingly sanction under Section 197 Cr.P.C. was not required. Prayer is for dismissal of the present petition. 7. In response to the preliminary objection raised by the respondent-complainant, counsel for the petitioner relying on judgment of Hon'ble the Supreme Court in Kailash Verma v. Punjab State Civil Supplies Corporation and another (2005) 2 Supreme Court Cases 571, submitted that where there is serious miscarriage of justice and abuse of process of Court or mandatory provisions of law had not been complied with, this Court can certainly exercise power under Section 482 Cr.P.C. for correction of error committed by the courts below and the case in hand squarely falls in that category as the continuation of proceedings against the petitioner would amount to abuse of process of law. 8. As far as the maintainability of the petition is concerned, Hon'ble Criminal Misc. No.79052-M of 2006 -4- the Supreme Court in Kailash Verma's case (supra) while commenting upon the exercise of power under Section 482 Cr.P.C. in a case where a revision filed by the party had already been dismissed by the Court below, opined as under:- “It may also be noticed that this Court in Rajathi v. C.Ganesan (1999) 6 SCC 326 said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilized as a substitute for second Revision. Ordinarily, when a Revision has been barred under Section 397 (3) of the Code, the complainant or the accused cannot be allowed to take recourse to Revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional Court.” 9. In State through Special Cell, New Delhi v. Navjot Sandhu @ Afshan Guru & Ors. (2003) 6 SCC 641, while considering the issue of exercise of power under Section 482 Cr.P.C., Hon'ble the Supreme Court opined as under:- “ Section 482 of the Criminal Procedure Code starts with the words “Nothing in this Code.” Thus, the inherent jurisdiction of the High Court under Section Criminal Misc. No.79052-M of 2006 -5- 482 of the Criminal Procedure Code can be exercise even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayan Sharma's case (2001) 8 SCC 607, this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent powers. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice.” 10. As regard the sanction of prosecution required under Section 197 Cr.P.C. is concerned, the contention raised by learned counsel for the petitioner is totally misconceived. It is not every offence committed by a public servant which requires sanction for prosecution under Section 197 Cr.P.C. It is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal conduct. For the purpose, reliance can be placed upon the judgment of Hon'ble the Supreme Court in Parkash Singh Badal's case (supra). The relevant para of the same is reproduced as under:- "50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120-B can by no stretch of imagiation by their very nature be regarded as having been committed by any public servant while acting or purporting to act in Criminal Misc. No.79052-M of 2006 -6- discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence." 11. Similar view was expressed by Hon'ble the Supreme Court in Raghunath Anant Govilkar v. State of Maharashtra 2008(1) Criminal Court Cases 820. 12. Keeping in view above authoritative pronounciation of law by Hon'ble the Supreme Court, in my considered opinion, in the facts and circumstances of the case where inter-alia allegations are of cheating and tempering with the official record, no sanction under Section 197 Cr.P.C. was required. Accordingly, this contention of the counsel for the petitioner is rejected. 13. As far as the second issue raised by learned counsel for the petitioner to the effect that for the same offence FIR is already registered and under consideration and accordingly the complaint should not be allowed to be proceeded with, it is sufficient to add that the petitioner is not the complainant in the FIR. The same is for investigation of scam in the post office where large number of people were cheated. It is only that the statement of the petitioner was recorded therein. On that ground the summoning order of the petitioner in the complaint filed by respondent no.2-complainant cannot be faulted with. 14. Even the other contention raised by learned counsel for the petitioner regarding non-consideration of the report of the police after investigation is concerned, the same also does not carry any weight for the simple reason that admittedly, even if in the report of the police after investigation no case is made out, still the Court can take cognizance and summon the accused. In the present case, after the receipt of the report Criminal Misc. No.79052-M of 2006 -7- and recording the statement of the complainant, the Court was prima-facie satisfied that a case for summoning of the petitioner along with Manohar Lal-agent for committing offence under Sections 420/467/468/471 IPC was made out and accordingly they were summoned. Sufficiency of material cannot be considered at this stage in exercise of power under Section 482 Cr.P.C., which is extra-ordinary in nature especially in a case where the petitioner is invoking the same after unsuccessfully availing of the remedy of revision before the learned Additional Sessions Judge. 15. Once on factual aspect of the matter, the learned revisional Court has already considered the issue on merits and concurred with the view expressed by the learned Magistrate summoning the petitioner, even if a different view is possible, this Court would not like to interfere in extra- ordinary power under Section 482 Cr.P.C. as this case does not fall within the exception as carved out by Hon'ble the Supreme Court in Kailash Verma's case (supra). 16. Accordingly, for the reasons stated above, I do not find any merit in the present petition and the same is dismissed. April 07, 2008 (RAJESH BINDAL) nt JUDGE