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2017 (5) TMI 1809 - HC - Indian LawsCancellation of License of the Gas Agency - indulging in malpractices to enforce the provisions of the Essential Commodities Act. It is the submission of appellant that, in view of the offence, for which the applicants have been charged for has been committed while acting or purporting to act in discharge of their official duty sanction of the Government was a must. HELD THAT:- Section 197 of the Code of Criminal Procedure provides that when any person or a public servant 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 of the Government. In the case of SHAMBHOO NATH MISRA VERSUS STATE OF U.P. AND ORS. [1997 (3) TMI 645 - SUPREME COURT], the Supreme Court referred to the judgment of B. Saha vs. M.S. Kochar [1979 (7) TMI 242 - SUPREME COURT]. In the aforesaid case, a complaint was filed under Sections 409, 420, 465, 468, 477-A against a cashier who after fabricating the signature of the complainant therein withdrew money. The High Court recorded a finding that the act was done in discharge of duties as there was a reasonable connection between the act and discharge of official duties. In the case of Parkash Singh Badal [2006 (12) TMI 548 - SUPREME COURT], the Supreme Court has referred to a judgment in the case of PK PRADHAN VERSUS THE STATE OF SIKKIM REPRESENTED BY C.B.I. [2001 (7) TMI 1298 - SUPREME COURT]. In the case of P.K. Pradhan, the Supreme Court while dealing with the legislative mandate of Section 197 that the offence alleged to have been committed must have something to do, or must be related in some manner, with discharge of official duty, even if it is excess if the needs and requirements establish then it can be said to be done in discharge of official duty and after reviewing the case law it was held that The Court had observed that before arriving at a conclusion whether the provisions of Section 197 of the Code will apply, the court must conclude 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 could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. Recently also the Supreme Court considered the case law on Section 197 of the Code of Criminal Procedure in the case of Punjab State Warehousing Corporation versus Bhushan Chander and Another reported in [2016 (6) TMI 1138 - SUPREME COURT]. In the said case, the Supreme Court was considering the case of an employee of a Public Sector Undertaking. The High Court had held that the offences under Sections 467, 468 and 471 were also with one under Section 409 of the IPC and therefore the offences were so intermingled with the discharge of official duty, sanction was necessary. In light of the decisions of the Supreme Court it needs to be decided as to whether the offence alleged can be said to be one directly connected with the duty of the petitioners or has a reasonable nexus with the duties that they performed. There is a clear finding in the report that there has been tampering with the record. The learned Magistrate based on such a report has come to the conclusion that the protective umbrella of Section 197 of the Criminal Procedure Code is in the facts of the case not available to the petitioners as the offence cannot be said to have been committed in discharge of or in purported discharge of official duty nor can it be said to have been reasonably connected with the duties or under colour of office. The act or offences for which they are charged for are under Sections 465, 467, 471 read with Section 120(B) of the Indian Penal Code. The act of fabrication or tampering may be a part of the same transaction, however the objectionable action is performed under the cloak of office, whereas the intention was apparent. From the ratio of the judgments, what is culled out is that even while discharging official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part cannot be treated as a part of his official duties and hence provisions of section 197 are not attracted. Looking to the case on hand, when the offence alleged to have been committed is tampering of records such conduct cannot but only amount to a misdemeanor not connected with or while in purported exercise of official duties. Here only the official capacity enabled the accused to carry out inspection and record statements. Further, under the cloak of such official duty or when such capacity has been used to fabricate records, it cannot be said that the act is under colour of duty, in discharge of official duty or has a nexus with the duty. The contention of learned Senior Counsel Mr. Raju that since the offence is committed while in discharge of official duty or in purported exercise thereof is therefore rejected. Having said that no protection under Section 197 is available to the petitioners, the Order of the Magistrate dated 11/2/2010 issuing process cannot be faulted - Having held that Section 197 of the Criminal Procedure Code would not apply to the case, consequentially even the contention of the petitioners that the action of filing the FIR and investigation violates the provisions of Section 15-A of the Essential Commodities Act also deserves to be rejected. Application dismissed.
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