CRIMINAL MISCELLANEOUS No.15752 OF 2003 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- GYAN SHANKER DAS, SON OF LATE JAI KISHORE LAL DAS, AT PRESENT POSTED AS CIRCLE OFFICER, MARHAURAH, P.S. MARHAURAH, DISTRICT SARAN. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. PARSHURAM MISHRA SON OF LATE RADHAKRISHNA MISHRA, RESIDENT OF VILLAGE MOHABBAT PARSA, P.S. RIVILGANJ, DISTRICT SARAN, AT PRESENT RESIDING AT MODHAPUR, P.S. MARHAURAH, DISTRICT SARAN. ... ... OPPOSITE PARTIES. ---- For the Petitioner : M/S R.K. Sinha-2,Adv. Kamal Kishor Singh,Adv. G.N. Jha,Adv. For O.P. No.2 : Mr. Rameshwar Pandey,Adv. For the State : Mrs.Indu Bala Pandey,A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, who was at the relevant time, Circle Officer, Marhaurah, Saran, has come before this Court, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure has approached this Court with a prayer to quash an order dated 29.3.2003 passed by IVth Additional Sessions Judge, Saran in Cr. Revision No.363 of 2002. By the said order, the learned Additional Judge had rejected the revision petition preferred by the petitioner against the order dated 15.5.2002 passed by 2 the learned Judicial Magistrate, Ist Class, Chapra, whereby he had taken cognizance of offence under Sections 500 and 504 of the Indian Penal Code in Complaint Case No.344(C) of 2002 and summoned the petitioner to face the trial. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Chapra at Saran, which was numbered as Complaint Case No.344(C) of 2002. In the complaint petition, the complainant has disclosed that in the year 1998 for the purpose of getting mutation done in favour of his wife on the basis of three sale deeds, he had filed petitions. It was alleged in the complaint petition that right from the year 1998, the complainant was given false assurance for doing the job. Regularly, the complainant was attending the office of Circle Officer for the purpose of knowing the result of the mutation case. The complainant had categorically described the dates and year of his visit in the circle office. The said complaint was filed against the petitioner and one Devendra Kumar Singh @ Bambam Singh, Head Clerk, Marhaurah Block, 3 Saran, Chapra. The complaint was filed for the offence under Sections 166, 167, 500 and 504 of the Indian Penal Code. The complainant had categorically stated that one occasion, the complainant was informed in the year 2001 that order in mutation case had already been passed and he was asked to take rent receipt from Karmchari. The complainant thereafter, again approached the office, but neither he could take the order of mutation case nor he was allowed to deposit the rent. In paragraph-13 of the complaint petition, it has been asserted by the complainant that in the month of July,2001, while the complainant went to the office of Circle Officer and met Accused No.2 i.e. Head Clerk, the Head Clerk demanded Rs.1,000/- as illegal gratification. On objection being raised by the complainant, the Accused No.2 asked him to make complaint wherever he wanted to make. Subsequently, the complainant approached the petitioner, who was Circle Officer and explained regarding the conduct of Accused No.2 whereupon the petitioner told the complainant that he cannot get certified copy of the order of mutation case from his office. For that very 4 purpose, he was directed to approach the office of Collector. Thereafter, the petitioner used harsh language and directed his Guard to push the complainant out from the office and detain him. Thereafter, the Guard forcibly detained the complainant. After noticing the said occurrence, number of persons assembled there and keeping in view the fact that the complainant was a retired Bank Officer, other persons also raised objection. It has further been disclosed that the complainant was detained illegally for an hour and thereafter, the Accused No.2 i.e. Head Clerk gave copies of the order passed in three mutation cases. After getting the said copies, the complainant noticed that the orders were not correct. However, the complainant filed a complaint before the Chief Judicial Magistrate and after conducting enquiry, the learned Magistrate, by its order dated 15.5.2002, took cognizance of the offence under Sections 500 and 504 of the Indian Penal code. 3. Aggrieved with the order of cognizance, the petitioner filed a revision petition vide Cr. Revision No.363 of 2002. 5 The learned IVth Additional Sessions Judge, Saran at Chapra, by assigning a detailed reason, has rejected the revision petition preferred by the petitioner. Before the revisional court, the plea was taken on behalf of the petitioner that in absence of sanction for prosecution, the learned Magistrate was not authorized to take cognizance of the offence. The revision petition was rejected on 29.3.2003. 4. After rejection of the revision petition, the petitioner approached this Court by filing the present petition, which was admitted for hearing on 20.10.2005. While admitting, this court directed that during the pendency of this application, interim order passed on 24.3.2004 shall remain operative. The order of stay is still continuing. 5. I have heard learned counsel for the petitioner and Shri Rameshwar Pandey, learned counsel appearing on behalf of opposite party no.2. 6. Learned counsel for the petitioner, while challenging the order of cognizance as well as order of rejection of 6 revision petition, has mainly argued that in absence of prosecution sanction, the learned Magistrate was not authorized to take cognizance of offence. It was submitted that under Section 197 of the Code of Criminal Procedure before cognizance, it is necessary to see whether prosecution sanction, by competent authority, was issued or not. It was argued by learned counsel for the petitioner that whatever allegation was made in the complaint petition was in relation to discharge of official duty of the petitioner. It has been submitted that the petitioner was in his Chamber and since the complainant had un-authorizedly entered into his Chamber, the complainant had asked the Guard to keep the complainant away from the Chamber and as such it was a case in relation to discharge of official duty. Learned counsel for the petitioner has further argued that on the basis of averment made in entire complaint petition, no offence is made out and on this ground also, the order of cognizance was liable to be set aside. Learned counsel for the petitioner has submitted that the order of cognizance was passed without application 7 of mind by the learned Magistrate and in similar manner, the learned IVth Additional Sessions Judge has rejected the revision petition and as such both the orders are liable to be set aside. 7. Learned counsel for the petitioner has heavily relied on a judgment of Hon’ble Supreme Court reported in 2009(6) SCC 379 (State of U.P. Vrs. Paresh Nath Singh). He has submitted that it has been held by Hon’ble Supreme Court that in such situation before cognizance sanction for prosecution was must and in absence of prosecution sanction, order of cognizance is liable to be set aside. Learned counsel for the petitioner has further relied on a judgment of this Court reported in 2009(4) PLJR 179 SC (M.N. Ojha Vs. Alok Kumar Srivastava). It has been submitted by the learned counsel for the petitioner that in the case of M.N. Ojha (Supra), it has been held that if there is no material in the complaint petition to show commission of any offence, the order of cognizance, in such situation, will amount to non application of mind and on this ground also in the present case, order of cognizance 8 is liable to be set aside. 8. Shri Rameshwar Pandey, learned counsel appearing on behalf of opposite party no.2, has vehemently opposed the prayer of the petitioner. It has been submitted by learned counsel for the petitioner that the contents of the complaint petition itself indicates specific case has been made out against the petitioner and as such the learned Magistrate has rightly taken cognizance of the offence. Learned counsel for the opposite party no.2 has submitted that the complainant was a retired Manager of the State Bank of India and he was having a good reputation and respect in the locality. By referring to the complaint petition, it was submitted that right from the year 1998, the complainant was pursuing the accused persons for getting the result in the mutation case filed on behalf of his wife in respect of three documents. Even after expiry of about four years, he could not get either order of mutation or he was allowed to deposit rent and get rent receipt. On the contrary, the Accused No.2, who was none else, but the Head Clerk in the office of 9 petitioner, instead of issuing certified copy of the order in the mutation case, was demanding illegal gratification of Rs.1,000/- . Thereafter, the complainant reasonably approached the petitioner to inform him that his Subordinate had demanded illegal gratification instead of acting upon the complainant request the Accused No.1 became furious and he un-authorizedly and illegally directed his Guard to push him out from the Chamber and illegally detain him. In compliance with illegal direction of the petitioner, the Guard illegally detained the complainant for about one hour and only after objection was by the local people, the accused persons gave the copy of order in the mutation case. Even the order passed in the mutation case was not correct. It was submitted that handing over of certified copy of the orders in mutation case, after objection being raised by the locality, makes it clear that the order was itself prepared prior to making the complaint by the complainant, but the Accused No.2, Head Clerk, with a view to extract illegal gratification, was refusing to grant such 10 orders and in such a situation, since the petitioner was head of the office, the complainant had rightly made a complaint to the petitioner. Instead of acting upon the complaint of the complainant, the Accused No.1 had committed offences as alleged in the complaint petition and as such the learned Magistrate, after conducting enquiry, has rightly taken cognizance of the offence. On the question of sanction, it has been argued by Shri Pandey, learned counsel for opposite party no.2 that allegation made against the petitioner was not directly in relation to discharge of his official duty. For the purposes of attracting Section 197 of the Code of Criminal Procedure, it is must to see as to whether the allegation was in relation to discharge of official duty or not. It was submitted that directing the Guard to throw the complainant out from the office and illegally detain him cannot be considered as an Act in relation to discharge of official duty and in such situation, there was no application of Section 197 of the Code of Criminal Procedure. Alternatively, it was argued that prosecution sanction can be 11 examined even during the trial. Learned counsel for the opposite party no.2 has relied on a judgment of Calcutta High Court reported in 1998 Criminal Law Journal 923 (Paresh Chandra Koji Vs. State of West Bengal). Learned counsel has specifically referred to paragraph-13 of the judgment, which is as follows : “13. In the instant case, police, after investigation, submitted charge sheet against some persons after obtaining sanction and could not send up the petitioners only because of the fact that sanction was not obtained as against them. The Ld. Special Judge appears to have considered suo motu the question of necessity for sanction for prosecution of the petitioners without that question being raised by the petitioners. The Ld. Judge, upon consideration of the charge- sheet and the police papers, appears to have found out a prima facie case under Section 409, I.P.C. to be taken cognizance of 12 against the petitioners and took cognizance and issued process against them since he was of the view that no sanction was necessary for their prosecution under Section, 409, I.P.C. The petitioners have straightway come to this Court to challenge the impugned order of the Ld. Judge without fist appearing before him in response to the process. During the hearing of this revisional application, it was not argued on behalf of the petitioners that the materials revealed from the charge-sheet and police papers are not sufficient to make out a prima facie case against them under Section 409, I.P.C. to be taken cognizance of. The cognizance taken is sought to be quashed on the sole ground of want of sanction. Mr. Roy did not take me through the materials on record for the purpose of showing prima facie that the acts constituting 13 the alleged offence were directly and reasonably connected with the official duties of the petitioners. Generally, in the case under Section 409, I.P.C., the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of. This is, however, not to be understood as an invariable proposition of law. The question always depends on the facts of each case and if the act of criminal misappropriation or conversion complained of is inseparably intertwined with the performance of the official duty sanction would be necessary and otherwise not. The Ld. Special Judge has not of course in so many words made it clear in his impugned order that such inseparable connection as pointed 14 out above is missing but then on behalf of the petitioners as well no attempt was at all made to establish such connection for the present on the basis of the facts and circumstances revealed from the charge-sheet and police papers. The Supreme Court has unequivocally expressed the view that the question whether sanction was necessary or not might have to depend upon from stage to stage having regard to the facts and circumstances of the case. One of the broad tests as reiterated by the Apex dCourt, for the purpose of deciding the question whether the offence is committed in the course of official duty or under colour of office is whether the public servant, if challenged can reasonably claim that what he did he did in virtue of his office and it could not be shown on behalf of the petitioners at this stage that the requirement of this test has 15 been satisfied in the facts and circumstances of this case. It may so happen that facts subsequently coming to light during the course of the prosecution evidence at the trial might establish the necessity for sanction. The necessity may reveal itself in the course of the progress of the case and it would be open to the accused petitioners to place the materials on record during the course of the trial for showing what their duties were and also that the acts constituting the alleged offence were so inter- related with their official duties so as to attract the protection afforded by Section 197, Cr.P.C. For the present all that we are concerned with is whether on the facts alleged in the charge-sheet and disclosed by the police papers it would be said that what the petitioners are alleged to have done could be said to have been 16 done in purported exercise of their duties. As the materials on record now stand, the aforesaid question cannot be answered definitively in the affirmative so as to warrant a conclusion that sanction was necessary for the prosecution of the petitioners. Having anxiously considered the facts and circumstances of the present case as revealed from the materials which now stand on record in the light of the principles enunciated by the Supreme Court on the question of necessity of sanction vis-à-vis an offence under Section 409, I.P.C. as discussed above, I am inclined to hold that this is not a fit and proper case for invoking this Court’s revisional or inherent jurisdiction to interfere with the impugned order at this stage. The revisional application is accordingly dismissed.” 9. Accordingly, it has been submitted 17 that the revisional court has rejected the revision petition. 10. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has supported the stand taken by Shri Pandey, learned counsel for opposite party no.2.She has also opposed the prayer of the petitioner. 11. Besides hearing learned counsel for the parties, I have also perused the materials available on record particularly contents of the complaint petition. After going through the complaint petition, the court is satisfied that while taking cognizance of offence, the learned Magistrate had not committed any error. So far as question of sanction is concerned, time without number, it has been held that for the purposes of attraction of Section 197 of the Code of Criminal Procedure, it is necessary to examine as to whether Act alleged was in relation to discharge of official duty or not. While hearing a petition under Section 482 of the Code of Criminal Procedure that too, against the order of cognizance, it would be difficult for this Court to come to 18 a definite conclusion as to whether the Act alleged was really in relation to discharge of official duty or not. For that very purpose, option is open to the petitioner to raise those points before the court below. In a case reported in (2001)6 SCC 704 (P.K. Pradhan Vs. State of Sikkim), in paragraph- 15, the Hon’ble Supreme Court has also held that “....... in order to come to the conclusion whether claim of the accused that the act he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.” 12. Accordingly, I am of the opinion that on the ground of absence of prosecution sanction in the facts and circumstances of 19 the present case, order of cognizance cannot be set aside. Moreover, in the present case, after order of cognizance, the petitioner had availed revisional jurisdiction of the learned Sessions Court. After rejection of revision petition, the petitioner, in the garb of filing a petition under section 482 of the Code of Criminal Procedure, has virtually filed a second revision, which is barred under Section 397(3) of the Code of Criminal Procedure. However, in the facts and circumstances of the present case, at the moment, I am not given any opinion on the point of maintainability of the present petition, but in the facts and circumstances of the present case, the court is satisfied that petitioner has not made out an exceptional or rarest of rare case warranting exercise of inherent jurisdiction in his favour and as such petition stands rejected. 13. In view of rejection of this petition, interim order of stay dated 24.3.2004 stands automatically vacated. 14. Keeping in view the fact that the matter has remained pending before this Court for a long time, it is desirable to direct 20 the court below to proceed with the case expeditiously so that the case may come to a logical end without any further delay. 15. Let a copy of this order be sent to the court below forthwith. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 16.9.2010 N.A.F.R./N.H.