9911796707
TMI Blog2014 (10) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid provisions of the Indian Penal Code; the complainant had neither any locus standi nor any legal status to prefer any such complaint; the Appellants being public servants and Gazetted officers of the State Government of Chhattisgarh, no such criminal proceedings could be initiated against them without prior sanction from the appointing authority as per Section 197 of the Code of Criminal Procedure; and the complaint was blatant misuse and abuse of the process of Court which was filed by the complainant after exhausting the civil remedies in which he had failed. The High Court, after examination of the matter, has not found any merit in any of the aforesaid contentions raised by the Appellants 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of SE (ET & I) KW letter dated 04.02.2005. On that basis, tender of the Respondent was rejected. The Appellants submit that as an outburst, in not getting the Tender in his favour, the Respondent made complaints alleging irregularities to various fora including the State Government, which ordered the CSEB to conduct an enquiry. The CSEB submitted its report on 21.02.2006 stating that there were no such irregularities and that the Respondent had not furnished the necessary documents despite repeated requests. At this stage, the Respondent filed the Civil Suit (26-A/06) before the Civil Judge Class-II, Korba against the CSEB. However, the Respondent moved an application seeking to withdraw the 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 Rs. 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hairman of JSEB for verifying and cancelling such certificate. He also wrote to many officials of the CSEB. (e) The Respondent/complainant alleges that the said Certificate is per se defamatory as against the complainant's company and is a crude attempt to favour accused No. 1 by spoiling the image of the Complainants company. He further alleges that this caused a wrongful loss to the complainant's company by robbing its due chance to get a contract for the Boiler Plant Units at Korba. 4. After recording preliminary evidence, the Magistrate took cognizance of the complaint which order was challenged in the High Court. Before the High Court, the Appellants, inter alia, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court while dismissing the petition of the Appellants recorded that: (a) As far as mandatory provisions of Section 197 Code of Criminal Procedure is concerned, the High Court accepted that the Appellants are 'Public Servants'. It also observed that if the accusation against the Appellants Under Sections 120B, 468, 420 & 500 Indian Penal Code are connected with the discharge of their duty viz. if the said acts had reasonable connection with discharge of his duty then applicability of Section 197 cannot be disputed. However, on going through the allegations in the complaint, the High Court held that even though the Appellants are "Public Servant', the alleged offences 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code. Said provision with which we are concerned is reproduced below: Prosecution of Judges and public servant. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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- (a) 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 the Union, of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise, in Shambhoo Nath Misra v. State of U.P. and Ors. (1997) 5 SCC 326, the Court dealt with the subject in the following manner: 5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund etc. can be said to have acted in discharge of his official duties? It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally 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 misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tender Committee from JSEB. When the report was sought by CSEB in December, 2004, the Tender Committee took the view that the Respondent did not fulfill the pre-qualifying conditions and rejected his tender. Before doing so, the Respondent was asked time and again to send the performance report which he had promised but he failed to comply even when he had assured to do the needful. In fact, that itself was sufficient to reject that bid of the Respondent as it was non compliant with the tender conditions. Still, in order to verify the claim of the Respondent and to consider his bid on merits, though not strictly required, the Appellant R.C. Jain was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein 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. 17. In State of Haryana 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
