9911796707
TMI Blog2017 (5) TMI 1809X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as "the complainant") as a proprietor of Nimesh Gas Agency was subjected to checks and inspection by the petitioners (hereinafter referred to as 'the accused") while they had visited the premises pursuant to complaints received that the Gas Agency was indulging in malpractices to enforce the provisions of the Essential Commodities Act. On 19.07.2005, the accused visited the premises of the Gas Agency and inspected the records of the Gas Agency. After having made entries in the visit book, the accused recorded statements of 64 customers of Bottled Gas. When carrying out the recording of statements of customers, it came to the notice of the complainant later that these officers had recorded statement of one Abdul Barik Abdul Rasul who infact had died on 20.4.1995. Similarly, statement of Memon Faiz Umar, a customer was recorded. After the statement was recorded and signed by accused No. 1, alterations were made in the statement of Memon Faiz Umar by the officers with a separate pen to add certain contents. Notices were issued on 29.07.2005 and 29.12.2005 by these officers and the license of the Gas Agency was canceled. The cancellation of licence was challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 making the same allegations/accusations and further stating that the police authorities had still not filed a charge sheet though the FIR No. 69/2007 was filed on 1/5/2007. It was her further case that since the accused were government servants, more particularly, the officers of the Revenue Department, the police was shielding the accused. Collector had refused sanction under Section 197 of the Criminal Procedure Code for the accused Nos. 2 to 4 and question of sanction of accused No. 1 was pending before the State. 2.4 In exercise of powers under Section 210(1) of the Criminal Procedure Code, the Magistrate by his order dated 2/2/2010 called for a report on the proceedings of the inquiry from the Police Officer conducting the investigation. Such Report was filed by the Police Authorities on 6/2/2010. The Magistrate based on such report heard the respective parties. The learned advocate for the complainant contended that based on the report, an offence was made out and therefore a Criminal Case be registered and process be issued against the accused. Having examined the police papers and having found that accused had committed an offence which did not come under the purview o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agency's cases where the Agency has been found to be wanting in compliance of provisions. At Annexure F of the petition is a copy of the report by the District Superintendent of Police, Patan dated 9/3/2006 addressed to the Judicial Magistrate. The reading of the report indicates that the investigation was carried out pursuant to the complaints of the complainant and it was found that as far as action of the officers in recording the statement of a person who was already dead is concerned, when the statement was recorded there was no identification proof of the person whose statement was recorded and therefore the omission at best could be negligence and for which only departmental action could be warranted and it is not a case to register a criminal complaint. 3.1 From the order of the High Court passed in Special Criminal Application No. 265 of 2006 at Annexure G, it appears that the complainant had approached the High Court with a prayer seeking a direction that the complaint be registered and the investigation be transferred to the Deputy Superintendent of Police. On 6.3.2006, in such proceedings a statement of the Additional Public Prosecutor was recorded that the invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Magistrate had issued process. The petition was withdrawn with a liberty to make submissions in the pending petition of the Accused, the present one. 3.5 Annexure L is the report of the Deputy Superintendent of Police Randhanpur dated 6/2/2007 which has prompted the Learned Magistrate to issue process which has given rise to the present proceedings. The contents of the report may therefore require elaboration. The report records that the petitioners visited the premises of Nimesh Gas Agency and recorded statements of 64 customers. They also checked the stock register and the cylinders. Statement of one Abdul Arif Vora was recorded by Bhemabhai Patel, the Deputy Mamlatdar. The report also indicates that a statement of one Faiz Mohammad Umarbhai was recorded where there were alterations in the statement. The report indicates that on examination of and after having verified the statements recorded by the officers on the day of their visit and also having examined them what was found that one of the customers Abdul Barik Vora whose statement was recorded had in fact died on 20/04/1995. In the statement recorded of Faiz Mohammad Umarbhai, there were subsequent alterations made. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioners. Mr. M.M. Tirmizi, learned advocate has appeared for the Respondent No. 2 - the original complainant and Mr. Himanshu Patel, learned Additional Public Prosecutor has appeared for the Respondent No. 1 - State. 6. Mr. S.V. Raju, learned Senior Counsel appearing for the petitioners submitted as under: (A). That the officers - petitioners No. 1 to 4 had inspected the Gas Agency in their official capacity. During such inspection, they had recorded statements of 64 customers at the Gas Agency itself and before the statements were recorded an entry was made in the visit book. Significantly, therefore such exercise was in discharge of their duties as public servants. (B). That it will be evident from the facts that both the Collector and the State Government have refused sanction to prosecute the present petitioners. No useful purpose would therefore be served now in carrying forth the proceedings after issuance of such process when the sanction to prosecute has been refused. (C) Reading of the FIR also does not disclose commission of any offence. If the ingredients for invoking Sections 465, 467, 471 and 114 of IPC are read, such ingredients are not satisfied. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Pvt. Ltd. Vs. State of Gujarat (2015) 6 SCC 439 (V) Chat Ram vs. State of Haryana (1980) 1 SCC 460 (H). That in view of the provisions of Section 15A of the Essential Commodities Act, prosecution of the applicants/petitioners is barred. Since the Officers were acting in or purporting to act in discharge of their duty they are entitled to be protected from such prosecution when they were only enforcing the provisions of the orders under the Act. Inspection was carried out in pursuance of an order under Section 3 of the Essential Commodities Act and therefore in absence of sanction under Section 15A of the Act the prosecution would not lie. (I) In the alternative, it is submitted that sanction under Section 197 of the Criminal Procedure Code is also a must. Now that the sanction is not given, no further action needs to be done and the complaint deserves to be quashed. What is further argued is that the petitioner had filed an application challenging refusal of sanction and the same was withdrawn and therefore the same would not permit the complainant to file a subsequent complaint. (J). Several authorities have been cited at the bar by Senior Counsel Mr. Raju on the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court that when prima-facie a case of forgery of records is made out, it cannot be said to be a case where protection under Section 15A of the Act is available. 7.2 Mr. Tirmizi has further drawn my attention to the order dated 20/10/2008 passed in Criminal Miscellaneous Application No. 11489/2008 to contend that even this Court had refused to grant anticipatory bail to the applicants. He has taken me through the contents of the order and invited my attention to paragraph 9 of the order in support of his submission that the Court has also opined that the involvement of the petitioners is a subject matter of investigation. The court had in the facts, therefore, refused interim bail and therefore it was a case where even this Court should not exercise its extraordinary powers of quashing the complaint. After the order was passed, investigation was carried out and the report conclusively points to the complicity of the accused and the report opines that a case is made out. Therefore, the court should not quash the complaint. Mr. Tirmizi has also taken this Court through the orders of Regular Bail and pointed out that each officer is shielding himself and blaming the other for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en committed while acting or purporting to act in discharge of their official duty sanction of the Government was a must. It is in line of this submission that Shri Raju has cited the following judgments before this Court: (I) Virupaxaappa Veerappa Kadampur Vs. State of Mysore AIR 1963 SC 849. This decision is cited to suggest that when an act is done under "colour of duty" and if there is dereliction of duty, such acts can be said to be in exercise of official duty and therefore even though such acts amount to dereliction of duty it must be deemed to have been done under the "colour of office". Mr. Raju, therefore, submitted that the acts for which the applicants have been charged for are in the "colour of office" and therefore protection under Section 197 is available to the applicants. (II) K.K. Patel and another vs. State of Gujarat and another (2000) 6 SCC 195. According to Shri Raju, as per this judgment, the Supreme Court has categorically held that, when the act is done "on the colour of duty", even if such acts are done under cloak of duty, the act would amount to have been done in dereliction of duty and when on reading of the ingredients of the offences, for which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ganeshchandra Jew (2004) SCC 40. Mr. Raju has cited this judgment to contend that, when the alleged act done by the public servant is one which is reasonably connected with the discharge of his official duty, even if he has acted in excess of his duty, when there is reasonable nexus, with the commission of offence, protection under Section 197 is available. This judgment is also cited by Mr. Raju that the question of sanction touches the jurisdiction and therefore in absence of any sanction, a Court is precluded from entertaining the complaint. (VIII) Rakeshkumar Mishra vs. State of Bihar and others (2006) 1 SCC 557. This also is a judgment cited by Shri Raju in support of his contention that even if there is dereliction of duty, which even if apparent from the facts of the present case, protection under Section 197 is available. The act of which the present petitioners are alleged to have committed would fall within the limits to show that it was reasonably committed in the discharge of its official duty and it was not merely a cloak for doing the objectionable act. (IX) Anjanikumar Vs. State of Bihar and another 2008 (2) GLH 423. This judgment was cited by learned advocate Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en otherwise, such an act has a reasonable nexus with the nature of duties and therefore when such act has been done even in the "colour of duty", protection under Code of Section 197 is available. 10. As against the judgments cited by Mr. S.V. Raju, Mr. M.M. Tirmizi has relied on the following decisions. (a) Parkash Singh Badal And Another Versus State of Punjab and Others reported in (2007) 1 SCC 1. This authority has been relied upon by Shri Tirmizi to support his contention that when the allegations are in the nature of the accused having forged or tampered and altered records, it cannot be said to regard that the offence has been committed by such public servant while acting or purporting to act in discharge of official duty. In such cases, the official status only provides an opportunity for commission of the offence. (b) State of Maharashtra Versus Devahari Devaasingh Pawar And Others reported in (2008) 2 SCC 540. This authority was cited to support the stand that when there are alterations made in records, such an act/omission and an offence cannot be said to have a nexus with the official act. Such an offence has nothing to do with the official discharge of duties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce authorities to investigate, the DSP, Patan did submit a report on 9/3/2006 stating that at best recording of a statement of a dead person was negligence. The DSP, therefore, opined that departmental proceedings could be launched for this and for that omission it is not advisable to register an FIR. Petition filed by the complainant was disposed of on 20/3/2006 on a statement made that investigation is in progress and the matter is pending before the DSP. In a subsequent petition at the hands of the complainant being Special Criminal Application No. 1158/2006, when a statement was made that the FIR has been registered by the police for offences punishable under Sections 465, 467, 471, 120(B) and 114 of the Indian Penal Code, the petitioner withdrew the petition. 11.3 According to the accused, the petition being Special Criminal Application No. 265/2006 was disposed of on 20/3/2006 without appreciating that factually on 9/3/3006, the DSP, Patan had submitted a report holding that the action/omission wasn't a criminal offence and at best it was a case of negligence and therefore only warranted departmental action. This of course is not correct. Even if the DSP, Patan had opine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 nothing was done and therefore he was constrained to act in exercise of his powers under Section 210 of the Code and call for report. The Order of the Magistrate when perused would indicate that on going through the papers of the investigation and police papers, the Magistrate found that the tampering of records and falsification cannot be termed to be an act committed by the officers in discharge of official duties or acting or purporting to act in discharge of their official duties. The officers had conspired and with the help of each other created false records and therefore the protective umbrella of Section 197 of the Code of Criminal Procedure was not available to them. 13. This is where the applicants/petitioners have joined an issue. According to the submission of Mr. S.V. Raju, as reproduced hereinabove, but for being at the Gas Agency in order to carry out an official act or purporting to act in the official capacity, such statements could not have been recorded by the petitioners. Such recording of statements had a direct nexus with the discharge of official duty. The Officers were at the Gas Agency and were carrying out inspection. After such inspection, orders were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered sterile. In the wider sense, these words will take under its umbrella every act constituting an offence, committed in course of the same transaction in which the official duty is performed or purports to be performed. In sum, the sine qua non for the applicability of the 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. 14.2 Even in the case of State of Orissa versus Ganesh Chandra Jew (supra), the Supreme Court held that the protection under Section 197 has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty. Even if such officer has acted in excess when there is a reasonable connection between the act and the performance, the excess shall not be a sufficient ground to deprive such officer of the protection. The official duty must not be merely a cloak for doing an objectionable act. If the act falls within the scope and range and the quality is such that it falls within the official act, protection of such officer is a mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted when proved to be one which has been committed while acting in discharge of official duties or purporting to act in discharge of duties or one which has a reasonable nexus is protected. The official position must not be used as a cloak to commit a criminal act. If the quality of the act is such that it is criminal and had no direct bearing or was not under colour of office then the protection under Section 197 goes. 17. Having considered the judgments cited at the Bar by both the respective parties and having heard the submissions made by the learned counsel for both the sides, the question that needs to be addressed is whether the offences committed by the petitioners can be said to be in discharge of official duty? 17.1 In the case of Shambhoo Nath Mishra Versus State of U.P. and others (1997) 5 SCC 326, the Supreme Court referred to the judgment of B. Saha vs. M.S. Kochar (supra). 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 connec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in pursuance of a warrant issued by the Income Tax Investigation Commission in connection with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put, the said officer not only entered forcibly but tied the person offering resistance with a rope and assaulted him causing injuries and for such an act, a complaint had been filed against the public officers concerned. This Court, however, held in that case that such a complaint cannot be entertained without sanction of the competent authority as provided under Section 197 of the Code. 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." 17.3 In the case of Om Prakash and Others vs. State of Jharkhand (2012) 12 SCC 72, the Supreme Court was considering the case of a police officer who had killed a crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case, the same has been correctly applied." 17.5 In the case of Inspector of Police and Anr. vs. Battenapatla Venkata Ratnam and Another reported in 2015 SC 346, the Supreme Court held that fabrication of records etc cannot be termed as an official duty and the question of sanction can be considered at the stage of trial. 17.6 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) 13 SCC 44. 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. Reversing this stand of the High Court, the Supreme Court held as under: "22. A survey of the precedents makes it absolutely clear that there has to be reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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. 18. The averments of the complaint when seen, the allegation is that the officers conspired together. Aid of Section 120(B) is invoked to rope in all. What is alleged is apart from recording of the statement of a dead person, the officers after recording a statement of Faiz Mohammed, made alterations in such a statement with a different pen. The allegation is that they tampered with a statement which was already recorded. The DSP submitted a report to the Magistrate. The Report at Annexure L indicates that the police after investigation and recording statements came to a conclusion of the complicity of the applicants and ordered a charge sheet to be filed. 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, cannot be said to be in discharge of their official duty. There is an exception to the immunity provided under section 197. If a public servant acts under the power of authority but if in reality it is for his own benefit or interest, then such acts cannot be protected under the guise of immunity. Thus, in the present case, when the applicants have failed to show that how the alleged fabrication of records could in any manner have any relation or nexus with the discharge of their official duties, the protection under Section 197 cannot be extended to them. Moreover, in a case of sanction, it is not necessary that the question has to be decided at the threshold but can be left open to be decided by the trial court as it is the trial court which is in a better position on assessment of evidence at a later stage to decide whether there is nexus of the offence and the duty that is performed. 21. 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. The learned Magistrate has rightly come to the conclusion that the protective umbrella of Section 197 of the Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
