IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2032 OF 2007 Mr.Ajay Ganesh Ubale ..... ...... ......Petitioner V/s Manoj Pangarkar & Ors. ..... ...... ......Respondents. Mr.Anand Grover i/by Ms.Monica Sakhrani,Adv. For the petitioner. Mr.R.F.Lambay, Adv. For the respondent Nos.1 to 3. Mr.K.G.Menon, Sr.Adv. With Mr.J.L.Phoujdar, Adv. For R.No.4. Mr.S.R.Shinde, APP for the State. CORAM: A.P.DESHPANDE, J. 5/2/08 PC: The petitioner is the original complainant and at the relevant time he was working as Zonal Director of Narcotic Control Bureau, Mumbai Unit (hereinafter referred to as NCB). The petitioner is originally from Customs and Central Excise services and was on deputation to NCB. The respondent Nos. 1 to 4 are the accused. Respondent Nos. 1 and 2 were holding the post of Deputy Superintendent of Police in CBI, whereas respondent Nos. 3 and 4 were holding the post of DIG and Joint Director of CBI respectively. 2. The facts that can be gathered from the complaint are as under : One Mr.Dubey was called by the officers of NCB for interrogation in connection with suspected illegal manufacture of 1 Mandrax at gala Nos. 1 and 2, Powai, Mumbai. Mr.Dubey filed a complaint with CBI on 18.7.07 stating, inter alia, that three officers of NCB by name Mr.Asawale, Mr.Tokte and Mr.Nager had manhandled and threatened him and demanded a bribe of Rs.5 lacs. The CBI had registered FIR against the said three officers based on the complaint filed by Mr.Dubey. Dubey was thereafter sent to the office of NCB which is located at 3rd floor of Exchange Building for laying a trap. Two devices, one for voice recording and the other for transmitting the said recording were planted on the person of said Dubey. It i stated in the complaint that Dubey had entered the office of NCB at around 18/30 hours on 19.7.01. It is also obvious from the complaint that the alleged trap led by CBI could not succeed and thereafter CBI officers who were waiting in the vicinity of office of NCB had entered the office of NCB. The complainant was present in the office at that time. The CBI officers had visited the office of the complainant by about 20/15 hours. It is stated in the complaint that about 15/20 officers led by accused No.1/Respondent No.1 came to the office of NCB. As far as Respondent No.2 is concerned it is stated that he joined the team later on. A panchnama was drawn though nothing was recovered from the officers of NCB. It is stated in the cmplaint that the panchnama which was originally drawn by CBI officers in presence of accused Nos. 3 and 4 who acted as panchas was torn into pieces and another forged panchnama was prepared in the office of NCB itself. It is averred in the complaint that the pieces of original panchnama were left behind by CBI officers and 2 collected by the complainant and the same were put together and on reading of the same he noticed that in fair panchnama prepared some additional statements were inserted with a view to create false record and with an intention to lower the image of the complainant in general and in the eyes of persons known to him. Respondent Nos. 1 to 4 allegedly committed the offence punishable under sections 167, 218, 469 and 500 of the Indian Penal Code. The objection to the insertions in the fair copy of panchnama is in relation to the some of the statements including the one reproduced herein below: “Throughout the search proceedings Shri Ajay Ubale, Zonal Director, NCB, Mumbai appeared very non-cooperative and obstructive.” It is stated in the complaint that accused Nos. 1 to 4 have entered into conspiracy with an intent to cause injury and harm to the complainant by framing incorrect record with an intent to save a person (Mr.Dubey) from punishment and his property from forfeiture and of committing forgery for the purpose of harming reputation of the complainant. A further case of entering into conspiracy to defame the complainant is also tried to be made out. 3. An application for discharge was filed by the accused. The Magistrate did not consider the said application he being of the view that while issuing process the question of sanction was considered and hence considering the application for discharge based on the ground of want of sanction would tantamount to sitting in appeal over an order passed by his predecessor in office. 3 After the application moved by the accused came to be rejected they preferred a revision before the Sessions Judge. The learned Additional Sessions Judge allowed the revision and quashed the order of issue of process. Aggrieved by the judgment rendered in the revision the present writ petition has been filed. 4. Learned counsel appearing for the petitioner has contended that for filing of the complaint in question no sanction as is contemplated by section 197 of Code of Criminal Procedure is necessary to be obtained for the reason that the alleged commission of offence by the accused was neither in the course of discharge of their duty nor in purported exercise thereof and hence the submission is that the revisional Court has erred in law in quashing the order of issue of process and in discharging the accused. It is alternatively submitted that in the facts of the present case the question of requirement or otherwise of sanction under section 197 of Criminal Procedure Code ought to have been deferred until the decision of the complaint on merit and ought not have been decided at the threshold. It is contended that evidence would be needed in the present case to determine the question as to whether the act complained of was in discharge of official duty of the accused or in purported discharge of official duty. 5. It is not in dispute that the complaint has been filed without any sanction from the Government under section 197 of Cri. P.C. The learned counsel appearing for the respondents has submitted that whether a trap succeeds or fails a panchnama has to be prepared. Thus a panchnama was prepared. Rightly or wrongly 4 the first panchnama prepared was torn. However the torn pieces were left at the office of NCB. Had the accused wanted to conspire for committing an offence they would not have left the pieces of torn panchnama at the NCB office. A fair panchanama was prepared which is referred to as the second panchnama. The Sessions Judge has held that preparing the rough and/or fair panchanama when an anti corruption trap is led would be an act in discharge of the official duty of the accused and hence the Magistrate could not have taken cognizance of offence in the absence of sanction under section 197. 6. Having regard to rival contentions what is required to be seen is as to whether the accused have committed alleged offence while acting or purporting to act in discharge of their official duty. So far as preparation of panchnama is concerned the same is very much part of duty. The objection is that the fair panchnama or the second panchnama contained defamatory statements which go to lower image of the complainant and hence as the said statements were not necessary to be made while preparing the panchnama, the act has no nexus with discharge of duty. 7.Learned counsel for the petitioner has invited my attention to various judgments of the Supreme Court and High Court dealing with the subject of sanction, the test to be applied to find out as to whether the act complained of was committed in the course of discharge of duty or the purported discharge of duty and the time when the objection about want of sanction is to be considered. I choose to refer to some of the said judgments on which greater 5 emphasis was led. The first judgment relied upon is in the case of Matajog Dobey V/s H.C.Bhari, AIR 1956 SC 44. In the said judgment the Supreme Court has held that there must be reasonable connection between the act and the official duty. It has further held that the question of requirement of sanction can be considered at any stage of the proceedings. The Supreme Court has observed in para 17 thus: “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 S. 197 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 S. 197, 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 inter-related that one can postulate reasonably that it was done by the accused in the 6 performance of the official duty, though possibly in excess of the needs and requirements of the situation.” Then in para 19 the Supreme Court has observed thus: “19. The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” While concluding at para 20 the Supreme Court has categorically held that : “Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.” Reading of the said judgment reveals that there must be reasonable connection between the act and official duty. It does not matter even if act exceeds what strictly is necessary for the discharge of duty. Thus the protection would be available to a public servant even if the act complained of is in excess of the obligation cast for performance of the duty. There has to be a nexus between the act and the duty. This is the test laid down to find out whether sanction under sanction 197 of Criminal Procedure Code is necessary or otherwise in a given case. 8. The next judgment on which great stress has been laid by the learned counsel for the petitioner is in the case of Government of Himachal Pradesh V/s M.P.Gupta, AIR 2004 SC 730. The 7 Supreme Court has observed that : “there cannot be any universal rule to determine whether there is 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 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 his 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.” Placing reliance on the above referred observations the learned counsel contended that had not the respondent/accused made objectionable defamatory statements in the fair or second panchnama the same would not have resulted in dereliction of his official duty and hence it is submitted that the protection under section 197 cannot be said to be available to the respondents. Reliance is placed on a judgment reported in the case of Rakesh Kumar Mishra v/s State of Bihar And Ors., (2006) 1 SCC 432 which judgment reiterates the law laid down in M.P.Gupta's case (Supra). The next judgment is in the case of Jayasingh v/s K.K.Velayuthamand Anr., reported in (2006) 9 SCC 414. The Supreme Court in the said judgment has held that the requirement of section 197 to obtain sanction to prosecute public servant would 8 be necessary when there exists reasonable connection between the act in question and the discharge of official duty. Per contra learned counsel for the respondent has contended that in the facts of the present case the respondents-officers of CBI were obliged to prepare a panchnama of unsuccessful trap. Thus, the act complained of and the duty has direct nexus and hence applying the test laid down in the Matajog Dobey's case (Supra) the respondents would be entitled to protection of section 197. It is submitted that the public servants in the discharge of their official duty need protection as otherwise they could be subjected to harassment. To substantiate the submission that the Sessions Judge has rightly considered the question of want of sanction at the threshold reliance is placed on the judgment of the Supreme Court in the case of State of Karnataka V/s C.Nagarajaswamy., (2006) 1 SCC (Cri.) 47. In the said case the Supreme Court has held that ordinarily the question of sanction should be dealt with at the stage of taking cognizance. It has further held that even if cognizance of an offence is taken erroneously and the same comes to the Court's notice at later stage the question can be gone into at that stage. The Supreme Court concludes that such a plea can be taken for the first time even before the appellate court. On the basis of the ratio laid down in the above referred judgments the following position emerges: i) That there must be reasonable connection between the act and the official duty; 9 ii) It does not matter if the act exceeds what is strictly necessary for the discharge of official duty; iii) The act done in excess of what is strictly necessary would also be protected, the same being in purported discharge of the duty and iv) That the question of sanction or want of it has to be ordinarily considered at the threshold and in appropriate cases at any stage. 10. Applying this position of law as deduced from the Supreme Court judgments to the facts of the present case I concur with the view taken by the Sessions Judge that the act complained of i.e. preparing fair panchnama or the second panchnama and making objectionable defamatory statements therein against the petitioner would be protected as the same would be covered by the expression “purporting to act in the discharge of his official duty.” In this view of the matter I do not find any illegality or impropriety in the impugned order requiring interference in exercise of writ jurisdiction. 11. Before I conclude I wish to express my anguish and displeasure. Officers of the two wings of the Law enforcing agency of the State have indulged in Court battle for personal ego with vengeance. It would be in the fitness of things that such confrontation is avoided so that the image of both the departments is not lowered in the public esteem. 12. In the result writ petition fails and is dismissed. 10