Full Judgment Text
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CASE NO.:
Appeal (crl.) 1368 of 2004
PETITIONER:
Jayasingh
RESPONDENT:
K.K. Velayutham & Anr.
DATE OF JUDGMENT: 25/04/2006
BENCH:
S.B. Sinha & P.P. Naolekar
JUDGMENT:
J U D G M E N T
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 (1) hospitals and medical
institutions and (2) 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
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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 :
"\005\005..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
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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
tea\026shop 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
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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
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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
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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. ..\005. 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:
(i) no case was made out to frame charges against the Appellant
herein.
(ii) 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.