Sakthivel v. S.Kalasthiri

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.Nos.5186/04, 10996/03 & 15166/04Cr.MP.Nos.1622/04, 5356/04 * 3714/031.Sakthivel.. Petitioner(A1)in Cr.OP.5186/041.Sargunam2.N.Velu..Petitioners (A10 & 11) in Cr.OP.10996/03 1. Kasi2.Pandiyan3.Palani4.Narayanan5.Maharajan6.Sumathi7.Thenmozhi8.Rani.. Petitioner (A2 to 9) in Cr.OP.15166/04 VsS.Kalasthiri.. Respondent/Complainant in all Cr.OPs Prayer:- These Criminal Original Petitions are filed to call for the records and quash the proceedings in PRC.No.3/2003 on the file of the Judicial Magistrate II, Tirupattur, Vellore District, as far as the Petitioners are concerned. For Petitioner: Mr.V.Jeevagiridharan[Crl.OP.5186/04 & 15166/04]Mr.T.R.Ravi-Crl.OP.10996/03For Respondent :Mr.K.UmarORDER These Criminal Original Petitions are filed seeking to quash proceedings in PRC.No.3 on the file of the learned JudicialMagistrate II, Tirupathur, Vellore District.

The Petitioner in Cr.OP.No.5186/04 is A1, the Petitionersin Cr.OP.10996/03 are A10 and A11 and the Petitioners inCr.OP.15166/04 are A2 to A9 in the private complaint lodged by the Respondent which has been taken cognizance in PRC.No.3/2003 by the learned Judicial Magistrate II, Tirupathur for the alleged offences https://hcservices.ecourts.gov.in/hcservices/ under Sections 147, 148, 451, 427, 341, 166, 380 of IPC and Section3 of the TNPPD Act in regard to an incident that is said to have occurred on 16.11.2002.

A1 is the Block Development Officer and A2 is the Assistant of Kadili Panchayat Union, A3 is the District Councillor of Veppampalampatti Village, A4 is the Vice President of UdayamuthurPanchayat, A5 to A9 are the Councillors, A10 is the VillageAdministrative Officer and A11 is the Assistant Block DevelopmentOfficer.

It is alleged by the complainant/President, UdayamuthurPanchayat, Tirupathur Taluk, Vellore District that the accused have conducted a grama sabha meeting in his absence on 16.11.2002 and to conduct the same, they broke open the almirah of the Panchayat with lethal weapons and took away records. Further, they threatened the staff by name Gunasundari and compelled her to write the resolutionas expressed by them and thus contravened the provisions of the Tamil Nadu Panchayat Act (herein after referred to as the Act) and various other Government Orders made in this regard.

Mr.v.Jeevagiridharan and Mr.T.R.Ravi, the learned counselfor the Petitioners submitted that the Vice President[A1] is empowered under the provisions of the Act and various GovernmentOrders to conduct the grama sabha meetings, if the President failed to conduct the same on improper reasons and in the present case, as the Respondent/President adamantly refused to conduct the grama sabhameeting as scheduled, it resulted in problems and the people resorted to road roko agitation and the officials were made to wait from morning till evening and in such circumstances, as the Presidentfailed to conduct the meeting, the Vice President[A1] and otherPetitioners/accused have conducted the said meeting to satisfy the village people and therefore, there is no illegality or violation of any rule made under the Act.6. The learned counsel for the Petitioners would further submit that the complaint is a sheer abuse of process of law and that no cognizance could be taken without a sanction of the Government as required under sub section (2) of Section 197 of the Code of CriminalProcedure, when the Petitioners were discharging their official duty as the President failed to conduct the grama sabha meeting as scheduled on 16.11.2002.7. The learned counsel for the Petitioners placed reliance on the decision of the Honourable Supreme Court rendered in the case of N.K.Ogle Vs. Sanwaldas @ Sanwalmal Ahuja [CDJ-1999-SC-175],wherein the Honourable Supreme Court had observed that before coming to a conclusion as to whether the provision of Section 197 of Code of Criminal Procedure will apply, the Court must come to a conclusion that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused lay a reasonable claim that he did it in the course of the performance of his duty. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel for the Petitioners would further submit that applying the aforesaid ratio to the case on hand, the act of the Petitioners in conducting the grama sabha meeting in the absence of the President and doing some acts which is complained ofas amounting to commission of certain offence was in discharge of their official duty which they were required to do in order to satisfy the people who had gathered there to participate in the said meeting and in such circumstances, the said act cannot be said to have been done not in discharge of their official duty.

The learned counsel for the Petitioners also referred toa decision of this court rendered in the case of J.Murugesan Vs. TheState by Deputy Superintendent of Police CBCID [CDJ-2004-MHC-874]that the accused need not wait till quashing the cognizance taken by the learned Magistrate, when there was no sanction till the stage of framing charges and has held that it is a prohibition imposed by the Statute from taking cognizance for the alleged acts committed by apublic servant in discharge of his official duty or purporting to bein the discharge of his official duty.

On the other hand, the learned counsel for the Respondent relied on the decision of the Honourable Supreme Courtrendered in the case of Shambhoo Nath Misra Vs. State of UP and others [Air-1997-SC-2102]. The Honourable Supreme Court, while considering a case as to whether the accused was discharging his duties as a Government Servant when he was alleged to have misappropriated the amount in question by forging the signatures of the complainant, though held that misappropriation of public fund and fabrication of record cannot be said that the accused have acted in discharge of his official duties, as it is not the official duty of the public servant to fabricate the false record and misappropriate the funds in furtherance of or in the discharge of his official duty, but it laid stress on the point that the essential requirement postulated for sanction to prosecute a public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. It held thus:-"4. ... The essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant that the public servant's act is in furtherance of his performance or his official duties. If the act/ omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) of Cr.PC.Without previous sanction, the complaint / charge against him for the alleged offence cannot be proceeded with the trial. "

In the decision of the Honourable Supreme Court rendered in the case of Rizwan Ahmed Javed Shaikh Vs. Jammal Patel [2001-5-SCC-7] the Honourable Supreme Court has held thus:- https://hcservices.ecourts.gov.in/hcservices/ "15. The real test to be applied to attract the applicability of Section 197(3) is whether the act which is done by a public officer and is alleged to constitute an offence was done by the public officer whilst acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained ofis done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected. "

The real test to be applied to attract the applicability of Section 197(3) is as to whether the act which is done by a public servant and is alleged to constitute an offence was done whilst acting in his official capacity, though what he did was neither his duty nor his right to do as a public servant. It is not the duty wehave to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it.

In the case of Bhagwan Prasad Srivastava Vs. NP.Mishra[AIR-1970-SC-1661], the Honourable Supreme Court has laid emphasis on the 'act' and not duty which required examination to decide whether the act must fall within the scope and range of the official duties of the public servant concerned. The essential requirement is reasonable connection between the act and official duty and it does not matter if the act exceeds what is strictly necessary for discharge of the duty. The said view is stressed by the HonourableSupreme Court in the decision rendered in the case of S.B.Saha and others Vs. M.S.Kochar [AIR-1979-SC-1841], which is extracted below:-"18. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of anofficial duty to commit an offence, and never can be. " In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J.in Baijnath Vs. State of Madhya Pradesh [Air-1966-SC-220 atp222] "it is the quality of the act that is important and ifit falls within the scope and range of his official duties, https://hcservices.ecourts.gov.in/hcservices/ the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. "19. In sum, the sine qua non for the applicability of this section is that the offence charged be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him. "

It is settled by the aforesaid pronouncements of the Honourable Supreme Court that when a public servant is charged withan offence, whether sanction is or is not necessary must be determined with reference to the allegation in the complaint. A good test will be whether the public servant if challenged can reasonably claim that what he did, he did it in virtue of his office.

In the case on hand, from the facts alleged in the complaint, a case is made out ipso facto that the Petitioners have acted or purported to act in the discharge of their official duties and in doing so had committed some acts complained of as offence. Onfacts and circumstances of the case, I am of the considered view that the learned Magistrate ought not to have entertained the complaint unless it appears that the sanction to prosecute them has been obtained. Therefore, the cognizance of offences taken by the learnedMagistrate against the Petitioners without sanction under Section197 of the Code of Criminal Procedure is illegal and liable to be setaside and accordingly, it is set aside.

In the result, these Criminal Original Petitions are allowed. No costs. Consequently, the connected MPs are closed. Sd/-Asst. Registrar/True Copy/Sub. Asst. RegistrarSrcm To:1.The Judicial Magistrate II, Tirupattur, Vellore District2.-do- Thro' The Chief Judicial Magistrate, Vellore District. 3. The Public Prosecutor, High Court, Madras + 1 CC to Mr.P.S.Kothandaraman, Advocate, SR.55979+ 1 CC to Mr.T.R.Ravi, Advocate, SR.55673Crl.OP.Nos.5186/04, 10996/03 & 15166/04RSEM/2.11.09