Jayasingh
Vs. K.K. Velayutham & Anr [2006] Insc 231 (25 April 2006)
S.B.
Sinha & P.P. Naolekar S.B. Sinha, J :
This
appeal is directed against a judgment and order dated 19.11.2003 passed by the
High Court of Judicature at Madras in Crl.R.C.No.1465 of 2003, whereby and whereunder
the revision petition filed by the Appellant herein against an order dated
25.8.2003 was dismissed. The wife of the respondent No.2 was running a kiosk in
the hospital premises. The Government of Tamil Nadu had taken a policy decision
to remove all kiosks, bunks and tea stalls, etc. from the hospital premises as
they were causing inconvenience to the public and as food stuffs were also
supplied from the said kiosks, bunks and tea stalls which were prepared in
unhygienic conditions causing health hazards. A Government order was issued for
removing all the said kiosks on 30.10.1987. The Public Works Department
thereafter issued directions to the Executive Engineer to take steps for
removal thereof on or about 9.5.1996. The Chief Engineer also directed the
Executive Engineer to take steps in furtherance of the said G.O.M.No.2055 dated
30.10.1987. The wife of the respondent herein, who had been running a tea stall
in the said premises, was requested through a letter by the Executive Engineer
to remove the same as the Dean of Kilpauk Medical College had made such a
request in that behalf. Admittedly, a direction was also issued to the
Appellant herein by the Executive Engineer to remove the said tea stall.
Pursuant to or in furtherance of the said direction, the Appellant herein
requested the Assistant Commissioner of Police, Kilpauk to give police
protection for the purpose of causing such removal.
A writ
petition was filed by the wife of the respondent No.1 herein, which was
disposed of by the High Court with certain directions. In the meanwhile,
however, the said tea stall was removed whereupon a contempt petition was filed
against the Appellant. The said contempt petition was dismissed. The matter
thereupon came before this Court. This Court in N. Jagadeesan & Ors. vs.
District Collector, North
Arcot & Ors. [since
reported in (1997) 4 SCC 508], opined:
"We
are of the opinion that the appellants- petitioners can have no legitimate
grievance against the action taken to remove their bunks/kiosks inasmuch as the
removal is confined only to
-
hospitals and
medical institutions and
-
road margins of
main thoroughfares, viz., three specified thoroughfares in Madras City and one each in Vellore and Tiruppur. The reasons given by the State for removing them are
reasonable and acceptable. It is also specifically averred by the State that
they are not removing any bunk with a view to allow some other person to
install a bunk in that place. The removal is only for the purpose of removal of
health hazard or in the interests of smooth and unobstructed flow of traffic.
Indeed, the Government has offered to consider the applications, if any, made
by the evicted persons for locating them on other road margins or premises, as
the case may be." It was further observed :
"..In
our opinion, by seeking to remove the bunks and kiosks located within the
hospital premises or within the premises of other medical institutions or their
removal from the road margins of important and busy thoroughfares in the
aforesaid three cities in Tamil Nadu, the respondents are not acting in any
manner, inconsistent with the propositions enunciated in the said judgment. We
are not able to say that the reasons assigned are neither relevant nor germane
nor is it possible to say that reasons given are only a make- believe."
The said decision was rendered by this Court on 21st February, 1997.
A
Complaint Petition was filed by the respondent No.1 herein, who is the husband
of the said owner of the tea stall against the Dean of Kilpauk Medical College
and Hospital, Chennai purported to be under Sections 166, 448, 427, 380, 392
and 506(II) of the Indian Penal Code on 3rd September, 1997. The Metropolitan
Magistrate, Egmore, Chennai sent the Complaint Petition for inquiry to the
police authority whereupon a First Information Report (FIR) was lodged. It is
not disputed that during investigation the name of the Appellant was taken by
one Thiru V. Ramarajan, Executive Engineer, P.W.D., North Presidency Division, Chepauk,
Chennai, who alleged:
"I
am working as an Executive Engineer in P.W.D.
The Kilpauk Medical College wing comes under my jurisdiction,
wherein inside the campus, Tmt. Lakshmi Velayutham ran a tea-shop on lease
agreement and as the Dean of the Medical college did not give no objection
certificate to the Shop from 1992, the lease agreement period was not extended.
Further the Dean of the college wrote several letters stating that due to the
tea-shop, health hazards are caused and therefore requested to remove the said
shop. Further, I adviced to make arrangements to evict the shop of Tmt. Velayutham
from the college campus subject to rules. Accordingly, the Asst. Engineer, Thiru.
R. Jayasingh, BE., MBA., P.W.D. KMC wing, Kilpauk, Chennai-10 who was in charge
of KMC area, informed in his letter No.16K/97 dt. 2.7.97, that he removed the
shop of said Lakhsmi Velayutham on 1.7.97. The Asst. Engineer engaged men on
his own supervision and removed the shop. Today, 26.4.2000, you the Inspector
of G3 Kilpauk P.S. enquire me and I narrated the above details." Relying
on or on the basis of the said statement, the Appellant herein was made an
accused and a charge-sheet was filed by the Investigating Officer also against
him stating:
"In
the said case, it was ordered that the tea-shop which is in possession of the
PW1 should be vacated subject to Rules and Regulation. On obtaining such court
order, A1 and A2 even after knowing the order, with the intention to cause loss
to the complainant, on 2.7.97 at about 11.00 a.m., A1 Thiru. Ganesan former dean of KMC and A2 Thiru. Jayasingh, former
Asst. Engineer, PWD Kilpauk, Hospital wing with the help of some unknown
hooligans, went to the tea shop of the complainant which was functioning inside
the Kilpauk Medical College Hopsital campus, and without taking any legal steps
as per the Court order, they trespassed the teashop and the adjoining fancy
stones and removed the refrigerator, Mixie, Stone, Biscuit which were kept for
business and A1 Thiru. Ganesan look those articles in his custody and with the
help of the hooligans, he demolished the tea-shop built by the complainant PW1
in his own cost which was situated in the car shed, in the Hospital which came
under A1's jurisdiction and caused damages to PW1 to an extent of Rs.3 Lakhs,
and he removed the aforesaid valuables belonging to PW1 with the help of
unknown persons from the car-shed inside the campus and misappropriated the
same and thereby caused loss illegally to PW1 to an extent of Rs.4 Lakhs."
In the said charge-sheet only the allegations made in the complaint petition
were repeated. What transpired during investigation had not been disclosed. The
learned Magistrate took cognizance against the Appellant herein on the basis of
the said purported charge-sheet. The Investigating Officer noticed that removal
of the tea shop was effected as per an order of a Court of law. Validity or
otherwise of the action on the part of the appellant is not in question. An
application for discharge was filed before the learned Metropolitan Magistrate
by the Appellant, inter alia, on the ground that no sanction was obtained as
was required mandatorily in terms of Section 197 of the Criminal Procedure
Code, which plea came to be accepted by the learned Metropolitan Magistrate by
an order 25th August, 2003, opining:
"I
opine that the argument on the side of the petitioner that the act of the
petitioner was so, in order to execute the order given to him, but the nature
of the case filed against him M/s. 166, 448, 427, 380, 392 and 506 (II) IPC are
baseless, is acceptable. Further the nature of the act of the 2nd
accused/petitioners and what offence he committed, had not been stated in the
case. The petitioner is a Govt. Servant. No permission has been obtained to
prosecute him. The procedures to be followed u/s. 197 Cr.P.C. had not been
followed in this case." The revision petition filed by the respondent No.1
herein before the High Court against the said order, however, was allowed,
stating:
"On
a complaint given by the petitioner herein, a case was registered against A-1 only
on the specific allegations that the bunk stall of the petitioner was damaged
and was removed, thereby causing damages to the tune of Rs.7 lakhs. It is
pertinent to point out that the Executive Engineer at the time of investigation,
has categorically spoken to the fact that it was A-2, who wrote a letter to the
said official that it was he who was responsible for the removal of the bunk
stall. Under the stated circumstances, it has become necessary for the police
agency to include the first respondent/second accused. This Court is at a loss
to understand as to why not the case be proceeded against A-2. Hence, the lower
court has taken an erroneous view that there is no prima facie case against A-2
was not mentioned. There is no legal impediment to add a person, if he was
actually involved in the crime, though his name was not found in the complaint.
The
next contention as to the lack of sanction order is concerned, the lower court
can well go into the question as to the availability of sanction and if necessary
in the instant case, it could be decided at the time of trial.
Under
the stated circumstances, the order of the lower court has got to be corrected
only by upsetting the same.
The
order of the lower court is set aside. The lower court is directed to proceed
against the second accused also along with the other accused. This petition is
ordered accordingly." Mr. M.N. Rao, learned Senior Counsel appearing on
behalf of the Appellant would contend that in view of the fact that Appellant
removed the tea stall pursuant to the order passed by the Government in terms
of its policy decision, it was obligatory on the part of the prosecution to
obtain prior sanction therefor as was mandatorily required under Section 197 of
the Criminal Procedure Code.
Mr. Subramonium
Prasad, learned counsel appearing on behalf of the State, on being questioned,
very fairly submitted that apart from the statement made by the Executive
Engineer, as noticed hereinbefore, no other material exists as against the
Appellant.
Mr. V.
Krishna Murthy, learned counsel appearing on behalf of the respondent No.1, on
the other hand, would submit that from a perusal of the charge-sheet it would
be evident that the Appellant herein had caused huge loss and damages to the
respondent No.1 herein.
The
basic fact of the matter is not in dispute. The fact that the wife of the
respondent No.1 herein was running a tea stall is admitted. It further more
stands admitted that the Government of Tamil Nadu issued a Government Order
containing a policy decision to remove all such kiosks, tea stalls and bunks
from the hospital premises in public interest, inter alia, on the ground that
food prepared in such tea stalls in unhygienic conditions and the same had
otherwise been causing nuisance to others. No court has declared such a policy
decision to be ultra vires. We have noticed hereinbefore that, in fact, the
validity of such a policy decision has been upheld by this Court in Jagadeesan
(supra).
If, in
the aforementioned situation, the Appellant herein only complied with the order
of the Executive Engineer asking him to remove the said tea stall; we are of
the opinion that thereby he cannot be said to have committed any offence
whatsoever. The name of the appellant was taken by the Executive Engineer himself,
under whose direction he acted. He, in his statement made before the police,
merely stated that the Appellant by his letter dated 2.8.1997 intimated to him
that the tea stall had been removed.
On the
basis of the said statement no inference could be drawn that the Appellant
committed an offence purported to be under Section 427 of the Indian Penal
Code. From a perusal of the charge-sheet, as also the materials which are
available on record, it does not appear that there is anything to show as to
how and in what manner the Appellant could be said to have committed a mischief
or how the ingredients of the said provision stood satisfied.
The
statement of the Executive Engineer, on the basis whereof the Appellant had
been charge-sheeted, even if given face value and taken to be correct in its
entirety does not disclose an offence. The respondent No.1 herein filed a
complaint. He, in view of the fact that a contempt petition was filed against
the Appellant, presumably knew him personally. Despite the same, he had not
been named in the complaint petition. No allegation had been made against him
either in his complaint or in his statement under Section 161 of the Code of
Criminal Procedure that he had transgressed his authority or committed the
alleged crime. In the aforementioned provisions, we are of the considered view
that the prosecution should have obtained an order of sanction in terms of
Section 197 of the Code of Criminal Procedure.
In Matajog
Dobey vs. H.C. Bhari [(1955) 2 SCR 925] a Constitution Bench of this Court held
that the provisions of Section 197 of the Criminal Procedure Code would be
attracted if 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. 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.
Whether
for prosecution of a public servant sanction is necessary to be obtained or not
would depend upon the facts and circumstances of each case. Similarly, whether
in view of the allegations made in the complaint an order of sanction would be
essential or not would again depend upon facts and circumstances of each case.
In Romesh
Lal Jain vs. Naginder Singh Rana & Ors.[(2006) 1 SCC 294] a Bench of this
Court, of which one of us (Sinha, J. was a member), relying upon Matajog Dobey
(supra) and various other decisions, opined :
"The
question as to whether an order of sanction would be found essential would,
thus, depend upon the facts and circumstances of each case. In a case where ex
facie no order of sanction has been issued when it is admittedly a
pre-requisite for taking cognizance of the offences or where such an order
apparently has been passed by the authority not competent therefor, the court
may take note thereof at the outset. But where the validity or otherwise of an
order of sanction is required to be considered having regard to the facts and
circumstances of the case and furthermore when a contention has to be gone into
as to whether the act alleged against the accused has any direct nexus with the
discharge of his official act, it may be permissible in a given situation for
the court to examine the said question at a later stage.
We may
hasten to add that we do not intend to lay down a law that only because a
contention has been raised by the complainant or the prosecution that the
question as regard necessity of obtaining an order of sanction is dependent
upon the finding of fact that the nexus between the offences alleged and the
official duty will have to be found out upon analysing the evidences brought on
record; the same cannot be done at an earlier stage. What we intend to say is
that each case will have to be considered having regard to the fact situation
obtaining therein and no hard and fast rule can be laid down therefor." It
was held therein that the question as to whether sanction is necessary or not
that may be appropriately raised at different stages of the stage depending
upon the allegations made in the complaint.
Yet
again, in Rakesh Kumar Mishra vs. State of Bihar & Ors. [(2006) 1 SCC 557],
this Court held:
"Use
of the expression "official duty" implies that the act or omission
must have been done by the public servant in the course of his service and that
it should have been in discharge of his duty. The section does not extend its
protective cover to every act or omission done by a public servant in service
but restricts its scope of operation to only those acts or omissions which are
done by a public servant in discharge of official duty.
It has
been widened further by extending protection to even those acts or omissions
which are done in purported exercise of official duty; that is under the colour
of office. Official duty, therefore, implies that the act or omission must have
been done by the public servant in the course of his service and such act or
omission must have been performed as part of duty which further must have been
official in nature. The section has, thus, to be construed strictly, while
determining its applicability to any act or omission in the course of service.
Its operation has to be limited to those duties which are discharged in the
course of duty. But once any act or omission has been found to have been
committed by a public servant in the discharge of his duty then it must be
given liberal and wide construction so far its official nature is concerned.
For instance a public servant is not entitled to indulge in criminal
activities. To that extent the section has to be construed narrowly and in a
restricted manner. But once it is established that an act or omission was done
by the public servant while discharging his duty then the scope of its being
official should be construed so as to advance the objective of the section in favour
of the public servant. Otherwise the entire purpose of affording protection to
a public servant without sanction shall stand frustrated. For instance a police
officer in the discharge of duty may have to use force which may be an offence
for the prosecution of which the sanction may be necessary. But if the same
officer commits an act in the course of service but not in the discharge of his
duty and without any justification therefor then the bar under Section 197 of
the Code is not attracted. ... 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." [See Sankaran Moitra vs. Sadhna Das & Anr. (JT 2006 (4) SC 34.]
In view of the aforementioned authoritative pronouncements, as noticed
hereinbefore, we are of the opinion that the impugned order cannot be sustained
as:
-
no case was made
out to frame charges against the Appellant herein.
-
Even if the
statement of the Executive Engineer on the basis whereof the chargesheet has
been filed against the Appellant is accepted to be correct, sanction for his
prosecution, as envisaged under Section 197 of the Code of Criminal Procedure,
in the facts and circumstances of this case was necessary.
The
High Court, therefore, was not correct in allowing the Revision Case filed by
the respondent No.1 herein setting aside the order dated 25.8.2003 of the
Metropolitan Magistrate. The impugned order is set aside.
The
appeal is allowed accordingly.
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