Om Kr. Dhankar Vs.
State of Haryana & ANR.
[Criminal Appeal No.
464 of 2012 arising out of S.L.P. (CRL) No. 6908 of 2008]
J U D G M E N T
R.M. LODHA, J.
1.
Leave
granted.
2.
The
complainant is in appeal, by special leave, aggrieved by the order dated May
17, 2007 of the High Court of Punjab and Haryana whereby the 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).
3.
The
appellant (hereinafter referred to as 'the complainant') filed a criminal complaint
against the respondent No. 2 in the court of duty Magistrate, Gurgaon. In his complaint,
the complainant stated that he was a transporter and operating buses on the
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 Inspector 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.
4.
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.
5.
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.
6.
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.
7.
As
noted above, the complainant challenged the order of the Additional Sessions Judge
before the High Court but was not successful there.
8.
The
counsel for the appellant is not present. However, from the special leave
petition, it transpires that two questions have been raised, namely, (one) whether
Criminal Revision Petition against the order of summoning is maintainable, and (two)
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.
9.
Insofar
as the first question is concerned, it is concluded by a later decision of this
Court in the case of Rajendra Kumar Sitaram Pande and Others Vs. Uttam and Another1.
In Rajendra Kumar Sitaram Pande case (supra) this Court considered earlier decisions
of this Court in the cases of Madhu Limaye Vs. State of Maharashtra2, V.C. Shukla
Vs. State3, Amar Nath Vs. State of Haryana4 and K.M. Mathew Vs. State of Kerala5
and it was held as under :- "6... This being the position of law, it would
not 1 (1999) 3 SCC 134 2 (1977) 4 SCC 551 3 1980 Supp. SCC 92 4 (1977) 4 SCC
137 5 (1992) 1 SCC 217 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 397 could
be exercised against the same...."
10.
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.
11.
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.
12.
Mr.
Anis Ahmed Khan, learned counsel for the respondent No. 2, heavily relied upon
the decision of this Court in Rakesh Kumar Mishra Vs. State of Bihar6 while supporting
the view of the High Court.
13.
In
our view, the controversy with regard to the second question is concluded by
the decision of this Court in Prakash Singh Badal and Another Vs. State of
Punjab and Others7. Rakesh Kumar Mishra case (supra) was 6 (2006) 1 SCC 557 7 (2007)
1 SCC 1 considered in Prakash Singh Badal case (supra) in para 49 of the report.
This 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."
14.
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 7Cr.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.
15.
As
a result of the above discussion, the Appeal is allowed. 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 are set aside. The order dated June
2, 2001 passed by the Judicial Magistrate, First Class, Gurgaon in the criminal
complaint filed by the present appellant is restored. Trial court shall now
proceed against the respondent No. 2 as per the summoning order.
........................J.
(R.M. LODHA)
........................J.
(H.L. GOKHALE)
NEW
DELHI;
FEBRUARY
28, 2012
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