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Judgment
(Sanjeev Kumar Sharma, J)
Heard Mr. A M Bora, learned Senior Counsel for the petitioner. Also heard Mr. K K Parasar, learned Addl. Public Prosecutor for the State of Assam.
This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973, for quashing of Complaint Case No. 126/2022, as well as the order of taking cognizance dated 06.01.2023, pending before the learned Judicial Magistrate First Class (JMFC), Cachar, Silchar.
On 16.02.2022, the police/informant seized one vehicle bearing Registration No. AS-01/NC-4189 (Truck), loaded with 125 bags of suspected Burmese Supari, each bag containing 80 kgs, totalling 10,000 kgs of suspected Burmese Supari, at Lailapur Check Point, NH-306, from the possession of respondent No. 2. At the relevant point of time, the petitioner was posted at Lailapur PP under Dholai Police Station.
On 17.02.2022, the police lodged a First Information Report (FIR) against respondent No. 2 and two other persons, inter alia, stating that on 16.02.2022, at about 8:30 p.m., the informant, along with other staff of Lailapur, was performing regular Naka checking duty at Lailapur Naka Check Point, NH-306. In the meantime, one vehicle bearing Registration No. AS-01/NC-4189 (Truck) was coming from the Vairengte, Mizoram side. Upon checking the said vehicle, it was found that the vehicle was loaded with 125 bags of suspected Burmese Supari, each bag containing 80 kgs, totalling 10,000 kgs. On being asked, the vehicle driver and owner of the suspected Burmese Supari could not produce any proper or valid documents in respect of the said suspected Burmese Supari. Further, the FIR stated that the informant had a strong suspicion that the accused persons were smuggling Burmese Supari from the Mizoram side. Accordingly, the driver and owner of the Burmese Supari, along with one associate, were apprehended. It was further stated that, as the Burmese Supari prima facie appeared to be stolen, the matter might also involve an offence of cheating and form part of a larger criminal conspiracy, and hence required proper investigation.
After receipt of the FIR from the informant at Dholai Police Station, the same was registered by N Birkumar Singha as Dholai Police Station Case No. 58/2022 under Sections 120(B)/420/379/411 of the Indian Penal Code, 1980, and investigation was taken up.
The said informant N Birkumar Singha is the petitioner in Criminal Petition No. 687/2023, which has been preferred seeking the same relief as sought in the instant petition. The aforesaid case ultimately resulted in the filing of a charge sheet against respondent No. 2 and two others under Sections 120(B)/420/379/411 IPC. The learned Judicial Magistrate First Class, Cachar, also took cognizance of the case and issued summons to respondent No. 2.
Respondent No. 2 filed a criminal complaint case against the present petitioner and others under various penal provisions of law, stating, inter alia, that on 14.02.2022, Supari was imported and brought from Myanmar, weighing 10,000 kg, and was purchased by respondent No. 2 for an amount of Rs. 51,00,000.00 (Rupees Fifty-One Lakh) through ZOBIZZ Online Services LLP, situated at 111, Vengthalang, Champhai, Mizoram, and was carried to Guwahati by vehicle. On 16.02.2022, at about 5:00 a.m., while respondent No. 2 was carrying the said Supari in the vehicle and reached Lailapur Check Point, NH-306, under Dholai Police Station, respondent No. 2, along with two others, was apprehended by the informant with the 10,000 kg of Supari. At that time, they showed all the legal documents relating to the aforementioned 10,000 kg of Supari. However, the informant kept respondent No. 2 and the other two persons confined at Lailapur Patrol Post till 10:30 p.m. on 16.02.2022. One SI Rupam Das seized the aforesaid 10,000 kg of Supari and forwarded respondent No. 2 and the other two persons to Dholai Police Station and kept the seized Supari, along with the vehicle, in front of Lailapur Patrol Post. Thereafter, it was further stated that at about 11:00 p.m. on 16.02.2022, they reached Dholai Police Station and, after reaching there, respondent No. 2 showed all the legal documents relating to the aforesaid 10,000 kg of Supari to SI Rupam Das and Abhijit Kr. Baruah i.e., the petitioner in the presence of Witness Nos. 1 and 2. Thereafter, SI Rupam Das sent him and Witness Nos. 1 and 2 to Dholai PHC for medical examination, along with some constables. After the medical examination, they were again brought to Dholai Police Station at about 12:00 a.m. on 17.02.2022.
Thereafter, on 17.02.2022, the informant lodged an FIR containing false allegations against respondent No. 2 and two others, which was registered by the petitioner Abhijit Kr. Baruah as Dholai PS Case No. 58/2022 under Sections 120(B)/420/379/411 IPC, and the same was entrusted to SI Rupam Das for investigation. SI Rupam Das arrested respondent No. 2 and the other two persons on 17.02.2022 and forwarded them to the Court of the CJM, Silchar, on 18.02.2022. Thereafter, respondent No. 2 and the other two persons were forwarded to Silchar Jail and, on the strength of the bail order dated 08.03.2022 passed by the SDJM, Silchar, they were released from Silchar Central Jail on 09.03.2022. In spite of having shown the legal documents regarding the aforesaid 10,000 kg of Supari, the aforesaid accused persons conspired and intentionally lodged a false case, namely, Dholai PS Case No. 58/2022 against respondent No. 2 and the other two persons and arrested them, thereby curtailing their liberty and tarnishing their reputation, besides causing them hardship and loss. The accused persons, without any reason, confiscated the 10,000 kg of Supari and thereby caused loss to respondent No. 2. Respondent No. 2, upon disposal of Criminal Revision No. 42/2022, sold the 10,000 kg of Supari to one Puja Enterprise, situated at Chinsurah, Subhash Nagar, District Hooghly, West Bengal, for an amount of Rs. 51,05,100.00 (Rupees Fifty-One Lakh Five Thousand One Hundred only). However, the aforesaid business establishment returned 6,083 kgs out of the 10,000 kgs of Supari to respondent No. 2, stating that the same was damaged. As a result, respondent No. 2 had to bear a loss of Rs. 31,05,100.00 (Rupees Thirty-One Lakh Five Thousand One Hundred only).
The initial deposition of the complainant was recorded, along with the statements of two of his witnesses, by the learned Judicial Magistrate First Class, who, after considering the same and upon perusal of the records, took cognizance of the offence and issued summons against the present petitioner and two others, both of whom are police officials. It is stated that respondent No. 2, who is the complainant in Complaint Case No. 126/2022 pending before the learned Judicial Magistrate First Class (JMFC), Cachar, Silchar, is Accused No. 1 in Dholai Police Station Case No. 58/2022 and also in the charge sheet dated 31.05.2022 and, subsequently, Accused No. 1 in P.R.C. No. 1492/2022 pending before the learned Judicial Magistrate First Class, Cachar, Silchar, in which cognizance was also taken by the learned Court. Witness Nos. 2 and 3 in Complaint Case No. 126/2022 pending before the learned Judicial Magistrate First Class (JMFC), Cachar, Silchar, are the other two co-accused in the said P.R.C. No. 1492/2022. Thus, it is clear that a prima facie case is made out against respondent No. 2 and the other two accused persons in Dholai PS Case No. 58/2022, which was registered by the petitioner in discharge of his official duty, and the complaint case filed by respondent No. 2 is purely a counter-blast and an afterthought on the part of respondent No. 2.
Mr. A. M. Bora, learned counsel for the petitioner, has referred to the various provisions of the Indian Penal Code under which the complaint against the present petitioner has been registered, namely, Sections 166/211/241/342/465/469.
It is submitted that Sections 465 and 469 relate to forgery, and there is no allegation of forgery in the complaint filed by respondent No. 2. Furthermore, Sections 341 and 342, relating to wrongful restraint and confinement, respectively, are also not attracted in the facts of the present case, as the respondent and the other accused persons were apprehended on receipt of information relating to the transportation of contraband items. Accordingly, an FIR was also registered, and the case was investigated and a charge sheet was filed as well. Therefore, there is no scope for invoking the said provisions or terming the said action of the petitioner as wrongful restraint or confinement. For similar reasons, the provisions of Sections 166 and 211 IPC also cannot be said to be attracted. Furthermore, it is the submission of learned counsel that the petitioner was acting in discharge of his official duty, and therefore, in view of the provisions of Section 197 of the Cr.P.C., the learned Magistrate could not have taken cognizance of the alleged offences in the absence of prior sanction for prosecution.
In support of his aforesaid submissions, learned counsel has referred to the decisions of this Court in Rajen Singh, APS v. State of Assam & Ors., reported in 2009 3 GLR 154, and Diganta Barah v. State of Assam & Anr., reported in GAHC 010058742019.
Per contra, learned counsel representing respondent No. 2 submits that the offences under the aforesaid Sections, under which the Magistrate has taken cognizance, are made out, and whether the alleged acts can be said to have been committed by the petitioner while acting or purporting to act in discharge of his official duties is a matter of evidence that can be considered at the time of trial, after evidence has been led.
Referring to the decision of this High Court in Dr. Syed Samsuz Zaman, alias Dr. Syeed Samsuz Zaman v. State of Assam & Anr., GAHC 010084142025, and Amarjyoti Gogoi & 2 Ors. v. State of Assam & Anr., GAHC 010130242019, it is submitted that the question of sanction for prosecution can be considered at any stage of the trial and, therefore, no interference with the order taking cognizance is warranted.
It is further submitted that there is a third accused police officer, against whom cognizance has been taken, but the accused has not approached this Court by way of any criminal petition or otherwise, and therefore, any order that may be passed by this Court would necessarily have to be confined to the present petitioner.
I have given anxious consideration to the rival submissions made by the learned counsel for the parties at this stage.
Let me also quote, at this stage, Section 197, Cr.P.C., which run as follows:
“197.Prosecution of Judges and public servants.- (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:
Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Article 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted. ………….”
From a bare reading of Section 197, Cr.P.C., it is clear that when a 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, no Court shall take cognizance of such offence except with the previous sanction of the State Government or the Central Government, as the case may be, if the offence is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
In short, if an act, which constitutes an offence, is allegedly done by a public servant, who falls within the category of the public servants mentioned in Section 197, Cr.P.C., such a public servant cannot be proceeded against and no cognizance of such offence can be taken if the offence has been committed by him without sanction as contemplated in Section 197, Cr.P.C. provided that the act, constituting the offence, is done by him, while acting or purporting to act in the discharge of his official duty.
Turning to the question as to whether in the facts and circumstances of the present case, sanction under Section 197, Cr.P.C. was required, it is pertinent to note that sanction under Section 197, Cr.P.C. is required only in respect of persons, who are removable from office by or with the sanction of the Government. It is not in dispute that the accused-petitioner, being, at the relevant time, Police Officer, falls within the category of the public servants, who are covered by the provisions of Section 197, Cr.P.C.
In Rajen Singh, APS (Supra) this Hon’ble court has held as follows:
“21.While considering the scope and ambit of Section 197, Cr.P.C., it may be borne in mind that the protection conceived under Section 197, Cr.P.C. is meant to protect responsible public servants from being dragged to vexatious criminal proceedings for offences allegedly committed by them, while acting or purporting to act as public servants. The object behind Section 197, Cr.P.C. is to afford adequate protection to public servants in order to ensure that they are not prosecuted for acts done by them in the discharge of their official duties without reasonable cause and without sanction having been obtained from the Government concerned for such prosecution. This protection has defined parameters and is limited to such acts, which have been done by a public servant in the discharge or in the purported discharge of his official duties. To put it differently, the protection, envisaged under Section 197, Cr.P.C., is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, a public servant acts in excess of his duty, yet if there is a reasonable connection between the act done and the performance of the official duty, the excess will not deprive the public servant of the protection available to him under Section 197, Cr.P.C. See Bakhshish Singh Brar v. Smt. Gurmej Kaur . See also State of Himachal Pradesh v. M.P. Gupta .
22.While considering the scope of Section 197, Cr.P.C., it is apposite to recall the law laid down in HHB Gill v. The King, AIR 1948 PC 128 :1948 (49) Cri LJ 503 wherein the Privy Council held, "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty." This view has been approved by the Privy Council in Albert West Meads v. The King AIR 1948 PC 156 : 1948 (49) Cri LJ 660.
23.The acts, which Section 197, Cr.P.C., seek to protect, are those, which fall within the scope and range of the official duties of the public servant concerned. Thus, the protective umbrella of Section 197, Cr.P.C. extends to only such acts, which fall within the scope and range of a public servant's official duty. In other words, for availing protection under Section 197, Cr.P.C. the act of the public servant concerned must not only fall within the scope and range of his official duty, but that the offence must be connected with the official duty and not unconnected therewith. The necessary corollary flowing from this limitation is that when an act is prohibited to be done by a public servant in the discharge of official duty, such act of the public servant, though committed during the discharge of the official duty, will not be protected under Section 197, Cr.P.C.
24.From what has been observed above, it is clear that the primary test for determining if an act, which constitute offence, is an act, which can be claimed to have been done in the discharge or purported discharge of the duty, is that when questioned, the officer must be able to say that whatever has been done by him in the discharge or purported discharge of his duties. There is subtle, but definite distinction between the expression 'during the discharge of official duties' and 'in discharge of official duty'. An Officer may be on duty; but what he might have done may be an offence, which will fall outside his duty. For instance, when a Police Officer, on duty, commits offence of rape, he cannot say that since he was on duty, the act done by him is protected by Section 197, Cr.P.C. The test, therefore, is that the act, which an accused has allegedly done, must be shown to form part of his duty, though he may have exceeded his powers, while discharging his duties.
25.What is, now, of utmost importance to note is that unless an act, allegedly committed by a public servant of the categories mentioned in Section 197, Cr.P.C., amounts to an offence, the question of taking resort to Section 197 does not arise at all. In other words, an act, which becomes a subject-matter of prosecution and sanction in terms of Section 197, must amount to an offence, for, unless an act, complained of, amounts to an offence, the question of taking resort to Section 197 would not arise at all. At the first blush, therefore, the requirement of sanction under Section 197 is paradoxical. On the one hand, Section 197 protects a public servant from being prosecuted without sanction if the acts, which constitutes the offence, has been done by him, while acting or purportedly acting in the discharge of his official duties, it (Section 197) allows, at the same time, prosecution of such a public servant without sanction if his act, which constitutes the offence, was done by him, while not acting in the discharge or purported discharge of his duties. 26. Though, in either case, an offence is committed by a public servant, he is, in one case, protected; whereas, in the other case, he is not. It is in this context that the meaning of the expression 'while acting or purporting to act in discharge of his official duty' needs to be carefully analysed and understood, for, it can never be a part of the duty of a public servant to commit an offence. Thus, if construed too narrowly, Section 197 can never be applied, for, it is no part of the duty of a public servant to commit an offence. At the same time, if the expression, 'while acting or purporting to act in the discharge of his official duty', is construed liberally, it may vest in a public servant absolute power and make him berserk. 27. There is yet another significant aspect of Section 197, Cr.P.C., which, unless carefully taken note of, may lead to aberrations in the course of administration of justice. When an act is done, though offence, honestly in the discharge of public duty, it is protected under Section 197. However, when such a public servant dishonestly acts in the discharge of his public duty and thereby commits an offence, can he be still covered by Section 197? The answer to this question has to be in the affirmative, for, such a dishonest act will be covered by the expression purporting to act in the discharge of his official duty'. Thus, not only the honest discharge of a public servant's duty, which may amount to an offence, would be protected under Section 197, but also his dishonest act, which too may amount to an offence, would be protected if the act can be construed to be in the purported discharge of his duties. It is, therefore, necessary that the act of the public servant is examined in order to test if the act amounts to an offence and if so, whether such an act has been done, while acting or purporting to act in the discharge of his official duties.”
This court in Diganta Barah (Supra) has held as follows:
“21.The requirement of sanction, while committing any offence in discharge of official duty, is well settled by Hon’ble Supreme Court in catena of decisions. Explaining the object of the section in the case of Indra Devi vs. State of Rajasthan and Another, reported in (2021) 8 SCC 768, Hon’ble Supreme Court has held as under:-
“Section 197 of the CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognisance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance.”
In the case of Matajog Dubey vs. H.C. Bhari, reported in (1955) 2 SCR 925, a Constitutional Bench of Hon’ble Supreme Court has held that:-
“Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that section 197, Criminal Procedure Code vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the 2023:GAU-AS:9259 legislature did not lay down or even indicate any guiding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction.”
While laying down the test, which is required to be adopted to find out whether sanction under Section 197 Cr.P.C. is required or not and to ascertain the scope and meaning of such sanction, their Lordships further held as under:-
“Slightly differing tests have been laid down in the decided oases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code; "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection' between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter-related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation.”
Going by the aforesaid principle, so laid down in the case of Matajog Dubey (supra), a three Judges Bench of Hon’ble Supreme Court, in S. Moitra vs. State of West Bengal, reported in (2006) 4 SCC 584, has echoed the same rule and held that –
“If the offence is committed during the course of the performance of his 2023:GAU-AS:9259 official duty, it would attract section 197 Cr.P.C.”
In the case of Prakash Singh Badal and another vs. State of Punjab and others, reported in AIR 2007 SC 1274, it has been observed by Hon’ble Supreme Court as under:-
"35.The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection 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 and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. ….”
In the present case, the facts speak for themselves. The petitioner was clearly acting in discharge of his official duty when he received the FIR containing information regarding the transportation of suspected contraband, namely, Burmese Supari. The petitioner, accordingly registered the FIR lodged by the present petitioner. By no stretch of imagination can it be said that the petitioner as either not acting or purporting to act in discharge of his official duties, nor that he was acting in excess of his powers. Rather, it is the case of the complainant/respondent No. 2 that he had a valid authority for transportation of the seized items, which were legally imported and brought from Myanmar and were purchased by respondent No. 2 in a legitimate manner and thereafter transported with all legal documents relating to the consignment in question, but despite the same, the petitioner had falsely implicated the complainant.
On the other hand, the stand of the petitioner is that respondent No. 2 failed to produce the documents establishing the legitimate nature of the transaction in question. However, even assuming the allegations of respondent No. 2, the complainant, to be correct, the same does not detract from the fact that whatever act was done by the petitioner, whether amounting to an offence or not, was done by him while acting in discharge of his official duty and, therefore, in view of the decisions of the Hon'ble Apex Court cited above, it can hardly be denied that the provisions of Section 197 of the Cr.P.C. would be attracted, and the Magistrate could not have taken cognizance of the alleged offences in the absence of a valid sanction. The contention that the question of sanction can be raised at a subsequent stage would arise only where such question had not arisen at an earlier stage. In the present case, however, the question of sanction has been raised before the commencement of the trial and, therefore, the same needs to be answered and decided at this stage itself.
As held by the Hon’ble Apex Court in Matajog Debey (supra), unless there is an offence, the question of applicability of Section 197 of the Cr.P.C. would not arise. Therefore, the act of the petitioner may amount to an offence in the light of the allegations made by the complainant; however, whether the criminal proceeding instituted or continued against the petitioner should be allowed to proceed is a question that is to be decided by the sanctioning authority, as the petitioner was definitely acting in discharge of his official duties.
That being the case, the impugned order taking cognizance cannot be sustained and is accordingly set aside insofar as the present petitioner is concerned.
The question of applicability of the penal sections under which the complaint against the petitioner has been lodged is left to be decided at an appropriate stage and forum, should the need arise.
The petition stands allowed.