ARTICLES ON SECTION 197 CRIMINAL PROCEDURE CODE : PART - LI

SOME REFLECTIONS IN INDUSTRIAL, SERVICE AND CRIMINAL JURISPRUDENCE : SECTION 197, CRIMINAL PROCEDURE CODE,1973 : SANCTION TO PROSECUTE PUBLIC SERVANTS : AN APEX JUDICIAL DICTUM : LI

AJAYA KUMAR SAMANTARAY,DEPUTY CHIEF LABOUR COMMISSIONER (CENTRAL),SHRAM BHAWAN, JAGJIVAN NAGAR,DHANBAD : 826003

PRELUDE : ?In this case the complainant was in appeal, by special leave, aggrieved by the order dated May 17, 2007 of the High Court of Punjab and Haryana whereby a learned single Judge of that Court dismissed the Criminal Revision Petition filed by the appellant and affirmed the order dated February 1, 2002 passed by the Additional Sessions Judge, Gurgaon. The Additional Sessions Judge by his order allowed the Criminal Revision filed by the present respondent No. 2 and quashed the order dated June 2, 2001 passed by the Judicial Magistrate, First Class, Gurgaon, summoning him to face trial under?Sections 420,?406?and?161?of the Indian Penal Code (IPC).

THE CASE - LAW :

OM KR. DHANKAR vrs STATE OF HARYANA AND ANOTHER[ (2012) 11 SCC 252. (2012) 3MLJ(Crl)563(SC) ]DoJ : 28 February, 2012

FACTS OF THE CASE :

??????One, Shri Om Kumar Dhankar, the appellant in this case (hereinafter referred to as 'the complainant') filed a criminal complaint against the respondent No. 2 (Deputy Excise and Taxation Commissioner, Gurgaon) in the court of duty Magistrate, Gurgaon. In his complaint, the complainant stated that he was a transporter and operating buses on contract basis in the name of M/s Chaudhary Bus Service. On May 1, 2000, his two buses bearing registration Nos. DL-1P-7077 and DL-1PA-3927 were impounded. On that date, the third bus bearing registration No. DL-1PA-4007 belonging to the complainant was also impounded. The respondent No. 2 at the relevant time was working as Deputy Excise and Taxation Commissioner, Gurgaon. The complainant visited his office and enquired about the impounding of his three buses. He was told that he (complainant) had not paid the passenger taxes in respect of these three buses. The respondent No. 2 told the complainant that Rs. 2 Lakhs were due towards the passenger taxes in relation to these three buses and asked the complainant to deposit that amount at his residence if he wanted the buses to be released. The complainant arranged Rs. 1,50,000/- and paid this amount to respondent No. 2 at his residence at about 1.45 p.m. on May 1, 2000. The respondent No. 2, according to the complainant, promised him to issue receipts from the office. The complainant visited the office of the accused at about 4 p.m., but there was no one in the office except one office clerk who told him that two buses have been released and the third bus would be released on payment of Rs. 50,000/- at the residence of the respondent No. 2. The complainant paid Rs. 50,000/- at about 9.30 p.m. at the?residence of the respondent No. 2 and the third bus was also released. In the complaint, the complainant alleged that the respondent No. 2 had cheated him and the public money has been embezzled and the accused also received illegal gratification; the intention of the respondent No. 2 was malafide while issuing directions to Inspectors posted at different tax collection points not to accept passengers tax at tax collection points. It was thus alleged that the accused had committed offences under?Sections 420,?409?and?427?IPC and?Section 13(1)(d)?of the Prevention of Corruption Act, 1988.

??????The complainant appeared before the Magistrate in support of his complaint and examined himself. Two other witnesses were also examined on his behalf. Certain documents were also placed before the Magistrate.

???????The Magistrate vide order dated June 2, 2001 found that sufficient grounds existed to proceed against respondent No. 2 to be summoned to stand trial under?Sections 420,?406?and?161?IPC.

CRIMINAL REVISION BY RESPONDENT NO.2:

???????The respondent No. 2 challenged the summoning order in Criminal Revision before the Sessions Judge, Gurgaon which was finally heard and disposed of by the Additional Sessions Judge, Gurgaon on February 1, 2002. The Additional Sessions Judge, inter alia, held that in the absence of sanction by the competent authority, the summoning order could not have been issued. The Additional?Sessions Judge, accordingly, vide order dated February 1, 2002 set aside the summoning order.

CHALLENGE OF THE ORDER IN THE HIGH COURT :

???????As noted above, the complainant challenged the order of the Additional Sessions Judge before the High Court but was not successful there.

S L P TO THE SUPREME COURT :

??????Having felt aggrived by the order of the High Court, the complainant moved the Hon'ble supreme Court by filing a special leave petition (criminal) bearing no.6908 of 2008 which on grant of special leave, became criminal Appeal No.464 of 2012.

THE ADJUDICATION :

???????The counsel for the appellant was not present. However, from the special leave petition, it transpires that two questions have been raised, namely, (one)

1. whether Criminal Revision Petition against the order of summoning is maintainable ? and

2. ?whether in the facts and circumstances of the present case, the sanction under?Section 197?of the Code of Criminal Procedure (Cr.P.C.) is required ?

Answering Question no.1:

??????On taking up the case for adjudication, the Hon'ble Supreme Court stated,?insofar as the first question is concerned, it is concluded by a later decision of the Hon'ble Apex ?Court in the case of Rajendra Kumar Sitaram Pande and Others vrs. Uttam and Another,(1999) 3 SCC 134. In Rajendra Kumar Sitaram Pande's case (supra) the Apex ?Court considered earlier decisions of the ?Court in the cases of Madhu Limaye vrs. State of Maharashtra, (1977) 4 SCC 551 ?V.C. Shukla vrs. State, 1980 Supp. SCC 92, Amar Nath vrs. State of Haryana, (1977) 4 SCC 137 ?and K.M. Mathew vrs. State of Kerala, (1992) 1 SCC 217?and it was held as under :-

"6... This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub-section (2) of?Section 397?would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under?Section 397could be exercised against the same...."

???????In view of the above legal position, we hold, as it must be, that revisional jurisdiction under?Section 397?Cr.P.C. was available to the respondent No. 2 in challenging the order of the Magistrate directing issuance of summons. The first question is answered against the appellant accordingly.

Answering Question No.2 :

???????The second question, is whether sanction under?Section 197?Cr.P.C. is mandatorily required for the prosecution of respondent No. 2 for the offences under?Sections 420,?406?and?161?IPC as he happened to be Deputy Excise and Taxation Commissioner at the time of incident.

???????The Counsel for respondent No. 2, heavily relied upon the decision of the Apex?Court in Rakesh Kumar Mishra vrs. State of Bihar, (2006) 1 SCC 557, while supporting the view of the High Court.

??????The Hon'ble supreme Court staed that?in its view, the controversy with regard to the second question is concluded by the decision of this Court in Prakash Singh Badal and Another vrs. State of Punjab and Others7, (2007) 1 SCC 1. Rakesh Kumar Mishra's case (supra) was ?considered in Prakash Singh Badal's case (supra) in para 49 of the report. The Hon'ble Apex ?Court thus held that the offence of cheating under?Section 420?or for that matter offences relateable to?Sections 467,?468,?471?and?120-B?can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. This Court stated in paragraphs 49 and 50 of the report thus:

"49. Great emphasis has been laid on certain decisions of this Court to show that even in relation to the offences punishable under?Sections 467?and?468?sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra case. That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately (sic linked) with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.

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 imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."

THE CONCLUSION :

??????On coming to the conclusion, the Hon'ble Court stated that in view of the above legal position, the Additional Sessions Judge and the High Court were not right in holding that for prosecuting the respondent No. 2 for the offences for which the summoning order has been issued, the sanction of the competent authority under?Section 197??Cr.P.C. is required. The view of the Additional Sessions Judge and the High Court is bad in law being contrary to the law laid down by this Court in Prakash Singh Badal case (supra). The second question is answered in the negative and in favour of the appellant.

THE VERDICT :

?As a result of the above discussion,

1.The Appeal filed Shri Om Prakash Dhankar was ?allowed.

2. The order dated May 17, 2007 of the Punjab and Haryana High Court and the order dated February 1, 2002 of the Additional Sessions Judge, Gurgaon were set aside.

3.The order dated June 2, 2001 passed by the Judicial Magistrate, First Class, Gurgaon in the criminal complaint filed by the present appellant was restored.

4.It was directed that Trial court shall proceed against the respondent No. 2 as per the summoning order.

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