Abdul Wahab
Ansari Vs. State of Bihar & ANR [2000] INSC 514 (17 October 2000)
G.B.Pattanaik,
M.B.Shah, S.N.Phukan PATTANAIK,J.
L.I.T.J
Leave Granted.
The
appellant is a public servant and on 26.4.1993, the Sub Divisional Magistrate
asked for an explanation from him as to why the encroachment in question is not
being removed notwithstanding the direction of the High Court.
The
said Sub Divisional Magistrate by order dated 25th of June, 1993, appointed the
appellant as a Duty Magistrate and one Shri Vinod Pal Singh as Senior In-charge
Magistrate of the Police Force, who were required to remove the encroachment in
question. The said appellant visited the encroachment site and requested the
encroachers for removal of encroachment and on 16.7.1993 was able to remove the
encroachment partially and reported the said fact to his senior officer, but on
17.7.1993, when the appellant along with armed force, reached the encroachment
site, several miscreants armed with weapons, started hurling stone and as the
situation became out of control, after giving due warning, the appellant was
compelled to give order for opening fire and dispersed the mob. On account of
such firing, one of the persons died and two others were injured and the
appellant then sent a report to his senior officer about the incident. The son
of the deceased, who is respondent No. 2, filed a complaint before the Chief
Judicial Magistrate, alleging commission of offence by the appellant under
Sections 302, 307, 380, 427, 504, 147, 148 and 149 IPC as well as Section 27 of
the Arms Act. The Chief Judicial Magistrate by his order dated 24.11.1995, came
to the conclusion that there is sufficient evidence available to establish that
prima facie case under Sections 302, 307, 147, 148, 149 and 380 is made out
against the accused and, therefore, he directed issuance of non-bailable
warrants against the appellant and other accused persons.
The
Chief Judicial Magistrate was also of the opinion that the provisions of
Section 197 of the Code of Criminal Procedure will have no application to the
facts of the case.
The
appellant then moved the High Court under Section 482 of the Code of Criminal
Procedure, praying inter alia that no cognizance could be taken without a sanction
of the appropriate Government, as required under sub-section (2) of Section 197
of the Code of Criminal Procedure, when the appellant was discharging his
official duty pursuant to an order of the Competent Authority. The High Court,
however without going into the merits of the matter and being of the opinion
that all the questions may be raised at the time of framing of charge, disposed
of the application filed by the appellant and hence the present appeal in this
Court. It may be stated that there was a dispute between two sets of Mohammedan
residents, one set complaining against the other about the encroachment of the
property belonging to the mosque and the appellant as the Circle Inspector, on
the basis of the said complaint had inquired into the matter and on the basis
of a detailed inquiry, a finding had been arrived at, that the situation at the
site was volatile for which on 27th of March, 1991, order under Section 144 Cr.P.C.
had been promulgated. Thereafter the appellant had made several requests to the
encroachers for removal of the encroachment and ultimately the Sub Divisional
Magistrate, Aurangabad by his order dated 25th of June,
1993, appointed the appellant as Duty Magistrate for use of Police Force to
remove encroachment in question. When the present appeal had been listed before
us, a judgment of this Court in the case of Birendra K. Singh vs. State of
Bihar, reported in JT 2000(8) SC 248, had been placed before us and it was
contended that the question of applicability of the provisions of Section 197 Cr.P.C.
can be raised at the stage of framing of charge and, therefore, the impugned
order of the High Court does not require any interference by this Court. The
aforesaid decision no doubt supports the contention of the learned counsel,
appearing for the respondent to a great extent but as we doubted the
correctness of the aforesaid ennunciation of law, the matter had been referred
to a Three Judge Bench and that is how we are in session of the matter.
The
learned counsel appearing for the appellant contended before us that on the
plain language of Section 197 of the Code of Criminal Procedure, when the Court
is debarred from taking cognizance of the offence except with the previous
sanction of the competent authority, if it is established that the offence
alleged had been committed by him while acting or purporting to act in
discharge of his official duty, there is no justification for the accused to
wait till the stage of framing of charge is reached and the High Court,
therefore was in error in not exercising the jurisdiction vested in law. On the
facts of the case, the learned counsel submitted that the appellant being
present at the place of occurrence pursuant to an order of the Magistrate with
the Police Force and was required to remove the encroachment in question and he
ordered for firing when the situation went out of control, while discharging
the duty of removal of encroachment and pursuant to such firing, a person died
and two persons were injured, the irresistible conclusion is that the use of
police force related to the performance of the official duty of the accused
appellant, within the meaning of Section 197 of the Code of Criminal Procedure
and consequently, without prior sanction of the competent authority, the Court
could not have taken cognizance of the offence on the basis of a private
complaint.
Mr.
S.K. Sinha, the learned counsel appearing for the complainant-respondent as
well as Mr. B.B.Singh, the learned counsel appearing for the State of Bihar,
fairly stated that the judgment of this Court in Birendra K.
Singhs
case has been too widely stated and there is no requirement for the accused to
wait till the stage of framing of the charge is reached for raising the
contention with regard to the applicability of Section 197 of the Code of
Criminal Procedure. So far as the applicability of the provisions of Section
197 of the Code of Criminal Procedure is concerned, in the facts and
circumstances of the present case, though Mr. B.B. Singh, appearing for the
State of Bihar submitted that the gravamen of the allegation made in the
complaint unequivocally indicate that the appellant was discharging his
official duty when he directed for opening of fire to control the mob and,
therefore, the provisions of Section 197 of the Code of Criminal Procedure
would apply.
Mr. Sinha,
the learned counsel appearing for the complainant-respondent on the other hand
contended that the act complained of cannot be held to be in discharge of
official duty of the appellant and, therefore the provisions of Section 197 of
the Code of Criminal Procedure will have no application.
In
view of the rival submissions at the Bar, two questions arise for our
consideration: 1. Assuming the provisions of Section 197 of the Code of
Criminal Procedure applies, at what stage the accused can take such plea? Is it
immediately after the cognizance is taken and process is issued or it is only
when the Court reaches the stage of framing of charge as held by this Court in Birendra
K.
Singhs
case. ? 2. Whether in the facts and circumstances of the present case, is it
possible for the Court to come to a conclusion that the appellant was
discharging his official duty and in course of such discharge of duty, ordered
for opening of fire to control the mob in consequence of which a person died
and two persons were injured and in which event, the provisions of Section 197
of the Code of Criminal Procedure can be held to be attracted? So far as the
first question is concerned, on a plain reading of the provisions of Section
197 makes it crystal clear that the Court is prohibited from taking cognizance
of the offence except with the previous sanction of the competent authority.
For a better appreciation of the point in issue, Section 197(1) is quoted
herein- below in extenso:
Section
197(1). When any person who is or was a Judge or Magistrate or a public servant
not removable from his office save by or with the sanction of the Government 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, no Court shall take
cognizance of such offence except with the previous sanction- (a) in the case
of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of
the Union, of the Central Government; (b) in the case of a person who is
employed or, as the case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a State, of the State Government.
Previous
sanction of the competent authority being a pre- condition for the Court in
taking cognizance of the offence if the offence alleged to have been committed
by the accused can be said to be an act in discharge of his official duty, the
question touches the jurisdiction of the Magistrate in the matter of taking
cognizance and, therefore, there is no requirement that an accused should wait
for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand
Jain vs. Pandey Ajay Bhushan and Ors., 1998(1) SCC, 205, a similar contention
had been advanced by Mr. Sibbal, the learned senior counsel appearing for the
appellants in that case. In that case, the High Court had held on the
application of the accused that the provisions of Section 197 gets attracted.
Rejecting
the contention, this court had observed:
The
legislative mandate engrafted in sub-section (1) of Section 197 debarring a
court from taking cognizance of an offence except with a previous sanction of
the Government concerned in a case where the acts complained of are alleged to
have been committed by a public servant in discharge of his official duty or
purporting to be in the discharge of his official duty and such public servant
is not removable from his office save by or with the sanction of the Government
touches the jurisdiction of the court itself. It is a prohibition imposed by
the statute from taking cognizance, the accused after appearing before the
Court on process being issued, by an application indicating that Section 197(1)
is attracted merely assists the court to rectify its error where jurisdiction
has been exercised which it does not possess. In such a case there should not
be any bar for the accused producing the relevant documents and materials which
will be ipso facto admissible, for adjudication of the question as to whether
in fact Section 197 has any application in the case in hand. It is no longer in
dispute and has been indicated by this Court in several cases that the question
of sanction can be considered at any stage of the proceedings." The Court
had further observed:
The
question of applicability of Section 197 of the Code and the consequential
ouster of jurisdiction of the court to take cognizance without a valid sanction
is genetically different from the plea of the accused that the averments in the
complaint do not make out an offence and as such the order of cognizance and/or
the criminal proceedings be quashed. In the aforesaid premises we are of the
considered opinion that an accused is not debarred from producing the relevant
documentary materials which can be legally looked into without any formal
proof, in support of the stand that the acts complained of were committed in
exercise of his jurisdiction or purported jurisdiction as a public servant in
discharge of his official duty thereby requiring sanction of the appropriate
authority.
In the
case of Ashok Sahu vs. Gokul Saikia and Anr.
1990
(Supp.) SCC 41, this court had said that want of sanction under Section 197 of
the Code is a prohibition against institution of the proceedings, and the
applicability of the Section must be judged at the earliest stage of the
proceedings and in that case, the Court directed the Magistrate to consider the
question of sanction before framing a charge. In yet another case, in the case
three Judge Bench of this Court had held that the question of sanction under
Section 197 Cr.P.C. can be raised and considered at any stage of the
proceedings and further in considering the question whether or not sanction for
prosecution was required, it is not necessary for the Court to confine itself
to the allegations in the complaint, and it can take into account all the
material on the record at the time when the question is raised and falls for
consideration. This being the position, we are of the considered opinion that
the decision of this Court in Birendra K. Singhs case JT 2000 (8) SC 248, does
not lay down the correct law by directing that the objection on the question of
sanction can be raised at the stage of framing of charge and not at any prior
point of time.
Coming
to the second question, it is now well settled by the Constitution Bench
decision of this Court in Matajog Dobey vs. H.C. Bhari, 1955 (2) SCR 925, that
in the matter of grant of sanction under Section 197 of the Code of Criminal
Procedure the offence alleged to have been committed by the accused must have
something to do, or must be related in some manner, with the discharge of
official duty. In other words, 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 claim, but not a pretended or
fanciful claim, that he did it in the course of the performance of his duty. In
the said case it had been further held that where a power is conferred or a
duty imposed by statute or otherwise, and there is nothing said expressly
inhibiting the exercise of the power or the performance of the duty by any
limitations or restrictions, it is reasonable to hold that it carries with it
the power of doing all such acts or employing such means as are reasonably
necessary for such execution, because it is a rule that when the law commands a
thing to be done, it authorises the performance of whatever may be necessary for
executing its command. This decision was followed by this Court in Suresh Kumar
Bhikamchand Jains case, 1998(1) SCC 205, and in a recent judgment of this Court
in the case of Gauri Shankar Prasad vs. State of Bihar and Anr., 2000 (5) SCC
15. The aforesaid case has full force even to the facts of the present case
inasmuch as in the said case, the Court had observed:
It is
manifest that the appellant was present at the place of occurrence in his
official capacity as Sub- Divisional Magistrate for the purpose of removal of
encroachment from government land and in exercise of such duty, he is alleged
to have committed the acts which form the gravamen of the allegations contained
in the complaint lodged by the respondent. In such circumstances, it cannot but
be held that the acts complained of by the respondent against the appellant
have a reasonable nexus with the official duty of the appellant. It follows,
therefore, that the appellant is entitled to the immunity from criminal
proceedings without sanction provided under Section 197 Cr.P.C.
It is
not necessary for us to multiply authorities on this point and bearing in mind
the ratio of the aforesaid cases and applying the same to the facts of the
present case as indicated in the complaint itself, we have no hesitation to
come to the conclusion that the appellant had been directed by the
Sub-Divisional Magistrate to be present with police force and remove the
encroachment in question and in course of discharge of his duty to control the
mob, when he had directed for opening of fire, it must be held that the order
of opening of fire was in exercise of the power conferred upon him and the duty
imposed upon him under the orders of the Magistrate and in that view of the
matter the provisions of Section 197(1) applies to the facts of the present
case. Admittedly, there being no sanction, the cognizance taken by the
Magistrate is bad in law and unless the same is quashed qua the appellant, it
will be an abuse of the process of Court. Accordingly, we allow this appeal and
quash the criminal proceeding, so far as the appellant is concerned.
Back