Bishwanath Singh vs Birsai Bhagat

S.N. Mishra, J.—In this application, the prayer of the Petitioner is for quashing the order dated 25.5.1995 passed by the learned Judicial Magistrate, whereby the complaint petition filed by the Petitioner has been dismissed on the ground of lack of sanction. The complainant-Petitioner filed a complaint petition before the Chief Judicial Magistrate, Gaya, alleging, inter alia, that an objection case u/s 9 of the Bihar and Orissa Municipal Survey Act was pending before the opposite party who was Assistant Superintendent of Survey at the relevant time. In the aforesaid proceeding a surveyor was appointed in order to ascertain the genuineness of the claim of the Petitioner. It is alleged that a report was accordingly submitted in favour of the Petitioner. The case was filed for hearing on 6.9.1993 but for some reason the case was not heard on that date. It is alleged that on 8.9.1993 the opposite party Birsai Bhagat, Asstt. Superintendent of Survey through a messenger, asked the Petitioner to meet him in connection with the aforesaid pending case. It is further alleged that the Petitioner sent his representative Mr. Upendra Kumar Singh who was examined as P.W. 1. It is further alleged that the said representative informed the Petitioner that the opposite party asking for illegal gratification of Rs. 1000/- for passing a favourable order in favour of the Petitioner. However, the Petitioner did not oblige and ultimately the said objection case was dismissed on 25.8.93. It is alleged that the Petitioner obtained a certified copy of the order when he was shocked to know that the objection case was dismissed on 25.8.1993. Accordingly, a complaint was filed before the Chief Judicial Magistrate, Gaya, for initiating a proceeding under Sections 166, 167, 218 and 384 of the Indian Penal Code. The learned Magistrate, on consideration of the materials on record, dismissed the complaint petition on the ground that no sanction in terms of Section 197 of the Code of Criminal Procedure has been obtained before filing the complaint petition.

Learned Counsel for the Petitioner has challenged the order on the ground that having regard to the nature of the allegation made in the complaint petition, no sanction is required for initiating a criminal proceeding against the opposite party. It is submitted that it is none of the business of the authority to ask for bribe for showing favour in the pending objection case. While developing his argument learned Counsel submits that asking for bribe to pass a favourable order in favour of the Petitioner cannot be said to be exercise of power in discharge of his public duty and, as such, the learned Magistrate has committed an illegality in dismissing the complaint petition in absence of sanction order. Learned Counsel for the Petitioner in support of his contention has relied upon the decisions in the following cases; (1) H.H.B. Gills and Anr. v. The King AIR (35) 1948 PC 128; (2) B. Saha and Others Vs. M.S. Kochar, and (3). B.S. Shambhu v. T.S. Krishnaswamy 1983 BBCJ 4 (SC). I have considered the decisions cited by the learned Counsel and I am of the view that there is no dispute so far as the law laid down in the aforesaid decisions, but the facts, in hand, in entirely different and as such, the decisions aforesaid will not help the Petitioners in the facts and circumstances of the case. Admittedly a proceeding in the nature of quasi judicial was pending before the authority. As the allegation stands, the representative of the Petitioner informed him that the authority is asking for bribe for passing a favourable order. The said representative has not filed any complaint petition on the contrary the Petitioner has approached the court for initiating a criminal proceeding on the basis of the statement alleged to have been made to him by his messenger. As stated above, the objection case was dismissed as far back as on 25.8.1993 but the complaint was filed on 19.10.1993. Had there been any substance In the allegation the Petitioner could have filed the complaint petition immediately when the alleged demand of bribe was narrated to him but he waited for final order and when objection case was decided against him, he comes with such a plea which cannot be accepted at the belated stage. If such plea is accepted, there will be no end of the matter. In each and every case the litigant will approach the court with a plea that because of non-fulfillment of demand, he has been non-suited by the court. Admittedly the opposite party-is a public servant posted as Assistant Superintendent of Survey, Gaya, duly empowered to dispose of the case falling under the Bihar and Orissa Municipal Survey Act. Obviously the alleged demand of bribe as contended by the Petitioner must be held to have been made in discharge of his official duty and, as such, the criminal proceeding cannot be initiated against the public servants who are removable by the State Government, without obtaining sanction in terms of Section 197 of the Code of Criminal Procedure, from the competent authority. The allegation against the opposite party has been made while he was discharging quasi judicial function duly conferred under the statute, particularly when such authority has not been paid any bribe. Admittedly, there is statutory appeal provided under the Act. The Petitioner could have filed an appeal and, in fact, it has been informed that such appeal, the Petitioner did file against the order passed by the opposite party. I appears that after tiling of the complaint petition, the Petitioner made an application on 29.10.1993 to the Chief Secretary for grant of sanction for prosecution of the opposite party and also wrote a letter to the Director, Records of Survey with copy to the Settlement Officer-cum-District Magistrate, Gaya, for enquiry. The Enquiring Officer made an enquiry and submitted a report to the Settlement Officer-cum-District Magistrate with a positive finding, that having regard to the allegation levelled against the Assistant Superintendent of Survey, no sanction prosecution is required. It was further recorded that the petition for grant sanction has been filed in order to black mail and influence the authority and ther to lower down the authority in eye of public. In the premises afore the authority is entitled to legal protect against such malacious prosecution. Settlement Officer, Gaya, having age with the report of the Enquiring Officer has forwarded the report along with record to the Director, Revenue, Records and Survey of Bihar, vide letter (sic) 15.3.94. From the documents as tained in Annexure C and D to counter affidavit it appears that the application for grant of sanction in terms Section 197 Code of Criminal Procedure was rejected the authority.

After having heard learned Counsel for the Petitioner and going to the materials on record including order under challenge, I am of the that there is no merit in this appeal which is accordingly dismissed.