TMI Blog2014 (10) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the provision of Order XXIII Rule 1 of the Code of Civil Procedure. Also, when suit is dismissed under Order IX Rule 8 Code of Civil Procedure, fresh suit under Order IX Rule 9 is barred. The legal implication would be of that the attempt of the Respondent in challenging the decision of the Tender Committee in not considering his tender remained unfaulted. No doubt, the Respondent in his complaint has right to colour his complaint by levelling the allegations that the Appellants herein fabricated the records. However, on the facts of this case, it becomes difficult to eschew this allegation of the Respondent and we get an uncanny feeling that the contents of FIR with these allegations are a postscript of the Respondent after losing the battle in civil proceedings which were taken out by him challenging the action of the Department in rejecting his tender. When he did not succeed in the said attempt, he came out with the allegations of forgery. It is thus becomes clear that the action of the Respondent in filing the criminal complaint is not bonafide and amounts to misuse and abuse of the process of law. The attempt is made by the Respondent to convert a case with c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and, consequently, dismissed their petitions. 2. Before we advert to the submissions of the Appellants, which are mirror image of what was argued before the High Court, it would be appropriate to traverse through the relevant facts and events leading to the filing of the said complaint by the complainant. These are as under: The Chhattisgarh State Electricity Board (for short 'the CSEB') issued an advertisement inviting tender (NIT) bearing No. T-136/2004 dated 02.06.2004 for its work at Hasedeo Thermal Power Station (Korba West) towards Designing, Engineering, Testing, Supply, Erection Commission of HEA Ignition system. The applications received there under were required to be processed in three stages successively namely; Part-I (EMD); Part-II (Techno-Commercial Criteria) and Part III (Price Bid). The Respondent herein submitted an application on 26.08.2004 as Chief Executive Officer of M/s. Control Electronics India (CEI) requesting for Tender Document. The application was rejected on the ground that it was accompanied by incomplete documents i.e. non-submission of documentary evidence of past performance and experience of the Respondent. The Respondent made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said suit. In any case he did not appear on the date fixed and accordingly the suit was dismissed for non-prosecution on 12.09.2006. The Respondent herein then filed a Writ Petition No. 2951 of 2006 before the Chhattisgarh High Court which was dismissed on 25.06.2007. Even costs of ₹ 25,000/- was imposed while dismissing the writ petition with the observations that it was abuse of the process of Court. Thereafter, SLP No. 15897 of 2007 was preferred by the Respondent which also came to be dismissed vide order dated 14.09.2007. After the exhaustion of these remedies, albeit unsuccessfully, the Respondent filed a complaint before K.K. Nagar P.S., Tiruchirapalli, Tamil Nadu. The police authorities refused to register the same on the ground that it is a civil dispute. It is, thereafter, that the Respondent filed the said Criminal Complaint Under Sections 120B, 468, 420 500 Indian Penal Code before the trial Court, which was registered as C.C. No. 183/07 and the trial Court issued summons to the Appellants herein and accused No. 1 (Successful Bidder) accused No. 2 (then Chief Engineer, JSEB). Petitions of the Appellants seeking quashing of the said complaint have been dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the allegations made by the Respondent Under Sections 120B, 468, 420 500 of Indian Penal Code pertained to the award of tender in favour of accused No. 1 in which the Respondent was also a competing party. It was also pleaded that the said complaint has been lodged as an afterthought, having failed in the civil suit for injunction which was dismissed and likewise, after unsuccessful attempt to challenge the award of contract in favour of accused No. 1 as the writ petition of the Respondent was dismissed by the High Court. Thus, the lodging of complaint before Judicial Magistrate-II, Tiruchirapalli was nothing but abuse of process of law. The Appellants also contended that the Respondents herein had no locus standi nor any legal status to prefer the said complaint, as CEI is not a registered company, having a legal entity. The Appellants further relied on Naresh Kumar Madan v. State of M.P. (2007) 4 SCC 766 wherein it has been held that an employee working in the Electricity Board is covered under the definition of 'Public Servant' and State of Maharashtra v. Dr. Budhikota Subbarao (1993) 2 SCC 567 for the proposition that the absence of sanction order from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed by them are cognizable offences are not in discharge of their normal duties, in which component of criminal breach of trust is found as one of the elements and hence the provisions of Section 197 Code of Criminal Procedure are not attracted. (b) It has also been observed that the evidence regarding the allegations made in the complaint have to be recorded and gone into by the trial court after the evidence have been adduced by the complainant. It is only thereafter the lower Court, can decide as to whether the allegations about the falsity of the Certificate with conspiracy of accused No. 2 and the Appellants herein are correct or not. 7. It is clear from the above that primarily two questions arise for consideration namely: (a) Whether prior sanction of the competent authority to prosecute the Appellants, who are admittedly public servants, is mandatory Under Section 197 of the Code? (b) Whether, on the facts of this case, the complaint filed by the Respondent is motivated and afterthought, after losing the battle in civil litigation and amounts to misuse and abuse of law? We would like to remark that having regard to the facts of this case the two issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. 10. This provision makes it clear that if any offence is alleged to have been committed by a public servant who cannot be removed from the office except by or with the sanction of the Government, the Court is precluded from taking cognizance of such offence except with the previous sanction of the competent authority specified in this provision. 11. The sanction, however, is necessary if the offence alleged against public servant is committed by him while acting or purporting to act in the discharge of his official duties . In order to find out as to whether the alleged offence is committed while acting or purporting to act in the discharge of his official duty, following yardstick is provided by this Court in Dr. Budhikota Subbarao (supra) in the following words: If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly connected or inseparably interlinked with the crime committed in the course of same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial Court on the question of sanction is clearly illegal and cannot be sustained. 14. The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted. In fact, the High Court has dismissed the petitions filed by the Appellant precisely with these observations namely the allegations pertain to fabricating the false records which cannot be treated as part of the Appellants normal official duties. The High Court has, thus, correctly spelt out the proposition of law. The only question is as to whether on the facts of the present case, the same has been correctly applied. If one looks into the allegations made in the complaint as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deputed to get the desired information from JSEB. He met the officials of JSEB and submitted his report to the effect that the works carried out by the Respondent at Patratu Thermal Power Station was not satisfactory. Even, Shri B.M. Ram, General Manager of the said Power Station furnished his report dated 28.12.2004 wherein it was summed up that due to the defects in the scanning system, supplied by the Respondent, generation had been adversely effected and the said Electricity Board was not satisfied with the equipment supplied by the Respondent. In spite of the aforesaid material, the tender Committee acted with caution and even the technical expertise was sought. Even the report of the technical experts went against the Respondent as it opined that the Respondent was not technically suitable on the technical vetting and comparative data. On the basis of the aforesaid material, the Respondent's tender document was not opened and returned and he was informed accordingly. All this has clearly happened in furtherance of and in discharge of the official duties by the Appellant. In the facts of the present case, we are of the view that allegations of fabricating the records are m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana v. Bhajan Lal 1992 Supp (1) SCC 335, this Court has laid down principles on which Court can quash the criminal proceedings Under Section 482 of Code of Criminal Procedure These are as follows: 102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. (2000) 2 SCC 636, this Court observed: (SCC p. 643, para 8) It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction Under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. 14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved. 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts Under Section 482 Code of Criminal Procedure though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained. 20. As a result, these appeals are allowed. Order of the High Court is set aside. Consequently, cognizance taken by the learned Magistrate and orders summoning the Appellants as accused is hereby set aside resulting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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