Moti Lal Banerjee vs State of Haryana

K.P.S. Sandhu, J.

Moti Lal Banerjee appellant has come up in appeal against his conviction under Sections 342, 384, 330, 195 and 161 of the Indian Penal Code and Section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act recorded by the Special Judge, Ambala, vide his order dated 7th August, 1984. The learned Special Judge vide his order dated 10th August, 1984, has sentenced the appellant for his aforesaid offences as under :

(i) under Section 342 I.P.C. rigorous imprisonment for six months and fine of Rs. 100/ in default further rigorous imprisonment for one month.

(ii) under Section 384 I.P.C. one year''s R.I. and a fine of Rs. 100/ in default further R.I. for one month.

(iii) under Section 330 I.P.C. three year''s R.I. and fine of Rs. 200/ in default further two months'' R.I.

(iv) under Section 195 I.P.C. two year''s R.I. and a fine of Rs. 150/ in default further two month''s R.I.

(v) under Section 691 I.P.C. one year''s R.I. and a fine of Rs. 200/ in default further two months R.I.

(vi) under Section 5(2) of the Prevention of Corruption Act two years R.I. and a fine of Rs. 500/ in default further three months'' R.I.

All the substantive sentences have been ordered to run concurrently. The State of Haryana has filed Criminal Appeal No. 659SB of 1984 for the enhancement of the aforesaid sentences of Moti Lal Banerjee appellant for the charges of which he has been convicted. Notice was issued in that appeal and it was ordered to be heard along with Criminal Appeal No. 480SB of 1984 filed by the appellant against his conviction and sentence. Both these appeals would be disposed of by this judgement.

Earlier the prosecution was launched against the appelant after obtaining sanction from the Deputy Inspector General of Police, Ambala Range. The same is Exhibit DY. However, an objection was taken by the defence that the Deputy Inspector General of Police was not competent to accord the sanction. The prosecution agency withdrew the challan from the Court and after obtaining sanction Exhibit P17/B from the Director General of Police, Haryana, put in the challan again and launched the prosecution.

2A. The appellant was charged as under by the learned Special Judge, Ambala, vide his order dated 16th May, 1983 :

"That you on or about the period between 28.7.1981 and 19.8.1981 at Ambala City wrongfully confined Mangal Sen, Sher Singh, Bhupinder Singh, Jagdish Lal, Ved Parkash and Mehru PWs and thereby committed an offence punishable under Section 342 I.P.C. and within my cognizance;

Secondly, that you during the above said period at Ambala City committed extortions by intentionally putting PWs Bhupinder Singh, Jagdish Lal and Ved Parkash son of Ram Chander in wrongful confinement and in fear of hurt to their person and thereby dishonestly induced the said PWs to deliver you Rs. 9,000/, Rs. 10,000/ and Rs. 10,000/ respectively and thereby committed an offence punishable under Section 384 I.P.C. and within my cognizance;

Thirdly, that you during the said period at Ambala City voluntarily caused hurt to Bhupinder Singh, Jagdish Lal and Ved Parkash for the purpose of extorting from them in order to pay Rs. 29,000/ to you to satisfy partly the claim of Gian Singh, Chet Ram, Sangat Singh, Babu Ram and Ved Parkash son of Brij Lal PWs etc. and thereby committed an offence punishable under Section 330 I.P.C. and within my cognizance;

Fourthly, that you on or about aforesaid period at Ambala City fabricated evidence, to wit, got prepared pawn deed from Mehru PW (an accused in a case under your investigation) in favour of Jagdish Lal and Bhupinder Singh and ornaments worth Rs. 16,000/ were falsely shows to have been recovered from PW Jagdish Lal and Bhupinder Singh, but in fact those ornaments were got prepared by you from some other source in order to get the aforesaid Mehru PW convicted in the said cases and thereby committed an offence punishable under Section 195 I.P.C. and within my cognizance.

Fifthly, that you being a public servant as Inspector, CIA, Ambala, during the said period between 27.7.1981 and 19.8.1981 at Ambala City and abusing your position as such public servant accepted Rs. 9,000/ from Bhupinder Singh PW Rs. 10,000/ from Jagdish Lal PW and Rs. 10,000/ from Ved Parkash PW s/o Ram Chander as illegal gratification as a motive or reward for not arresting and challenging them in criminal cases for the offence of keeping in their possession stolen property in respect of the said criminal cases and thereby committed an offence punishable under Section 5(1)(d) of the Prevention of Corruption Act, 1947 punishable under section 5(2) of the said Act and within my cognizance.

And lastly you being a public servant mentioned above during the said period at the said place accepted the above mentioned amounts from the aforesaid PWs as illegal gratification other than legal remuneration as a motive or reward for not arresting and challaning them in the aforesaid criminal cases for keeping in their possession stolen property in respect of the said criminal cases and thereby committed an offence punishable under Section 161 I.P.C. and within my cognizance.

Briefly stated, the prosecution case is that the appellant was posted as Inspector of Police in the CIA Staff, Ambala City, in the year 1981 FIR No. 76 of 1981 of Police Station, Mullana, under Section 457/380 of the Indian Penal Code lodged by Gian Singh PW 13, FIR No. 25 of 1981 of Police Station, Sadhaura, under Section 380 of the Indian Penal Code lodged by Sangat Singh PW 12, FIR No. 78 of 1981 of Police Station, Chandimandir, under Section 380 of the Indian Penal Code lodged by Chet Ram PW 14 and FIR No. 29 of 1981 of Police Station, Sadhura, under Section 457/380 of the Indian Penal Code lodged by one Babu Ram were entrusted to the appellant for investigation. During the investigation he arrested Mehar Singh alias Mehru PW 20 and fabricated a false disclosure statement to the effect that he had pawned the stolen articles with Bhupinder Singh PW 2 and Jagdish Lal PW 4 and on the basis of that fabricated document he wrongfully confined the three prosecution witnesses, namely Ved Parkash, Bhupinder Singh and Jagdish Lal along with some others and ultimately, after putting pressure, dishonestly induced Bhupinder Singh PW to part with Rs. 9,000/ and Jagdish Lal and Ved Parkash to part with Rs. 10,000/ each and out of the aforesaid Rs. 29,000/ he got prepared ornaments worth Rs. 16,000/ which he falsely showed to have been pawned with the prosecution witnesses and to have been recovered from them and kept the remaining amount of Rs. 13,000/ with himself. It is further alleged that he fabricated two pawn deeds Exhibit PC and PC/1 showing them to have been executed by Mehar Singh alias Mehru PW 20 in favour of Bhupinder Singh and Jagdish Lal PWs.

The appellant in his statement under Section 313 of the Code of Criminal Procedure denied these allegations and stated that this was a false case cooked up by Shri Raj Singh, the then superintendent of Police Ambala, who was not happy with him and wanted him to be corrupt for his benefits but the appellant refused to oblige him, that he withdrew from him the investigation of a murder case and many other cases for such reasons, that he had been harassing the appellant right from the beginning and had been issuing a number of letters and showcause notices without any fault on the part of the appellant, and that he was exonerated of all those allegations levelled by Shri Raj Singh by his successor Shri Nirmal Singh, Superintendent of Police, Ambala. He further stated that another case against his son Manoranjan was got registered by Shri Raj Singh S.P. through Rajinder Verma who was playing into the hands of Shri Raj Singh. This case was also found false after investigation by Shri Nirmal Singh Superintendent of Police and got the same cancelled. The appellant further stated that Rajinder Verma was not happy with him because he did not accommodate him for his ill doings whenever he visited the place of posting of the appellant from time to time and that this case was the result of a conspiracy between Shri Raj Singh Superintendent of Police and the other goldsmiths who were wanted in a number of cases. The appellant further stated that he was transferred to the police line by Shri Raj Singh Superintendent of Police without any authority of the I.G. who was competent to transfer him, that Shri Raj Singh got the investigation of all the cases transferred from him, that the same was entrusted to D.S.P. Jaswant Singh, who was an official of the choice of Shri Raj Singh and was prepared to oblige him, and that he was not allowed to join the investigation even during the period he was on interim bail under the order of High Court. He stated in the end that he was innocent and had rendered his services as a police officer without any blet on his career since 1949 and that no bad report against his integrity was ever recorded against him. He stated that sanction Exhibit P17/B for his prosecution was invalid as the D.G.cumI.G., Haryana, did not apply his mind to the facts of the case.

Apart from other defence evidence which he adduced, the appellant placed on record judgment. (Exhibit DY/1) rendered by Shri T.R. Bansal, Judicial magistrate First Class, Rajpura. According to this judgment, Mehru PW was prosecuted under Section 411 of the Indian Penal Code having been found in possession of a golden chain weighting 21 gms., 900 mg. as stolen property belonging to Ved Parkash on 30th July, 1981. As judgment Exhibit DY/1, Mehru PW made a confessional statement and on the basis of the same he was convicted and sentenced to rigorous imprisonment for three months.

Mr. A.S. Sukhija, learned counsel for the appellant, has at the outset challenged the prosecution and conviction of the appellant on the ground of absence of sanction under Section 197(2) of the Code of Criminal Procedure and also on the ground that the sanction accorded under section 6(1) of the Prevention of Corruption Act 1947, was not proper for the reason that the same had been given mechanically by the sanctioning authority without applying his mind to the facts of the case.

As far as the Mr. Sukhija''s first limb of argument regarding the absence of sanction under Section 197(2) of the Code of Criminal Procedure is concerned, he has placed reliance on Haryana Government Gazette notification No. 41/28/79HGI dated 25th July 1980, which reeds as under :

"In exercise of the powers conferred by subsection (3) of section 197 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), the Governor of Haryana hereby directs that the provisions of subsection (2) of the said section shall apply to serving police officials of all ranks of the Haryana Police Force charged with the maintenance of public order".

Thus Mr. Sukhija has submitted that since the appellant was acting or purporting to act in the discharge of his official duties sanction under section 197(2) of the Code of Criminal Procedure was a prerequisite to the prosecution of the appellant for the aforesaid offences. About the second limb of his argument regarding the validity of sanction Exhibit P17/B granted by the Director General of Police, Haryana, learned counsel contends that it was bounden duty of the prosecution to show that the sanctioning authority did apply its mind to the facts of the case and did not act only as a rubber stamp. The learned counsel has argued that admittedly the Director General of Police did not appear himself to prove the sanction and it was only PW17 Shri Ranjit Singh Kanwar, Superintendent in charge of the office of the Director General and Inspector General of Police, Haryana, who was produced for the purpose. This witness in his crossexamination has stated that he presented the file before the DirectorGeneral for perusal and that after handing over the file to him, he left his office and was summoned again by the DirectorGeneral after half an hour and handed over sanction. Exhibit P17/B and that the DirectorGeneral signed the sanction in his presence. He further stated that during that half an hour it was the PA of the Director General who remained with him. That P.A. has not been produced. Thus the learned counsel argued that since the presumption of regularity under Section 114(e) of the Evidence Act is not available to the sanction, the prosecution should have produced somebody to prove that actually the DirectorGeneral went through the papers and applied his mind to the facts of the case. Another important circumstance which the learned counsel has pressed into service to support his contention is that sanction Exhibit P17/B is an exact copy of sanction DY without there being a change of a full stop or comma therein. In sanction Exhibit DY FIR No. 78 of 1981 Police Station, Chandimandir, has been wrongly mentioned in place of FIR No. 76 of 1981 of Police Station, Mullana, and sanction Exhibit P17/B also contains the same mistake. Similarly, sections 197 and 196 of the Indian penal Code have been wrongly mentioned in Exhibit DY, as there was no charge under sections 197 or 196 or the Indian Penal Code against the appellant. The same mistake has been repeated in Exhibit P17/B. On the basis of these facts the learned counsel for the appellant has argued that the DirectorGeneral only acted as a rubber stamp and put his signatures on sanction Exhibit P17/B which appears to have been copied from sanction Exhibit DY.

Mrs. Nirmal Yadav, learned Assistant Advocate General, Haryana, on the other hand, was although very fairly conceded that if the appellant was acting or purporting to act in the discharge of his official duty then sanction under section 197(2) of the same would prove fatal, but has contended that all these acts of omission and commission for which the appellant has been charged were not performed by the appellant while acting or purporting to act in the discharge of his official duty. Therefore, no sanction under Section 197(2) of the Code of Criminal Procedure was necessary. Regarding the validity of sanction Exhibit P17/B Mrs. Yadav contends that since it is in evidence that the file remained with the DirectorGeneral for half an hour and he signed the sanction in the presence of Shri Ranjit Singh PW, so it must be presumed that the sanctioning authority applied its mind properly and that those two mistakes which are contained in Exhibit DY and Exhibit P17/B are just clerical ones and do not invalidate the sanction granted by the DirectorGeneral. She has further contended that all the charges for which the appellant was to be prosecuted find mention in Exhibit P17/B.

It is incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority after it has been satisfied that a case for sanction has been made out constituting the offence. The grant of sanction is not an idle formality or an acrimonious but a solemn and sacrosanct act which affords a protection to Government servants against frivolous prosecution and must, therefore, be strictly complied with before any prosecution and must, therefore, be strictly complied with before any prosecution can be launched against the public servant concerned. The presumption of regularity of sanction with the aid of section 114(e) of the Evidence Act is not available to the sanctioning authority. Support to this view can be sought from Madhusudan Prasad Gupta v. State of M.P. 1981 Cr. LJ 571. In the case in hand all that has come in evidence is that the file remained with the sanctioning authority for half an hour and that sanction Exhibit P17/B was signed by the sanctioning authority. From the evidence it cannot be said that the prosecution has successfully proved that the sanctioning authority did go through the papers during that period and applied its mind to the facts of the case. The fact that Exhibit P17/B is an exact copy of Exhibit DY and the same mistakes are found in sanction P17/B as in sanction Exhibit DY further goes to support the contention of the learned counsel for the appellant that Exhibit P17/B was coped out from Exhibit DY and was signed by the sanctioning authority without properly going through the file and applying its mind to the facts of the case. In this situation, it has to be held that the sanction granted by the Director General under Section 6(1) of the Prevention of Corruption Act is not proper.

As far as sanction under section 197 of the Code of Criminal Procedure is concerned Mrs. Yadav, learned Assistant AdvocateGeneral, has vehemently contended that the wrongful confinement of the prosecution witnesses and extortion of money from them and acceptance of illegal gratification could by no stretch of imagination be termed as acts having been performed by the appellant while acting or purporting to act in the discharge of his official duty. To support her contention Mrs. Yadav has placed reliance on S.B. Saha and others v. M.S. Kochhar, AIR 1972 SC 1841, wherein their Lordships were pleased to hold as under :

"The sine quo non for the applicability of section 197 is that the offence charged, be it one of commission or omission, must be one which had been committed by the public servant either in his official capacity or under colour of the office held by him.

The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in section 197(1) are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for "it is no part of an official duty to commit an offence, and never can be". In the wider sense these words will take under their umberalla ever act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be preformed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in performance of his official duty, which is entitled to the protection of section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. It is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 will be attracted.

The question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for the purpose is whether the public servant if challenged, can reasonably claim, that what he does he does in virtue of his office."

To further support her contention Mrs. Yadav has placed reliance on Lieutenant Hector Thomas Huntley v. Emperor, AIR (31) 1944 Federal Court 66; K. Satwant Singh v. State of Punjab, AIR 1960 Supreme Court 266; Ramesh Pal v. Ajhar Alam, S.P. (IPS) District Gurdaspur, 1984(1) RCR(Crl.) 511 (P&H) : 1984 PLR 234 .

Undoubtedly, there cannot be two opinions that accepting illegal gratification or wrongfully confining people is no part of the official duty of police officials. All that has to be seen is that if such a charge could be proved against, public servant without reference to any acs done by the accused in the charges of his official duties as such public servant, then of course no previous sanction for his prosecution is required. However, if charge could only be proved by proving the whole series of acts which the accused committed in the discharge of his official duties previous sanction would be a sine qua non for such prosecution. Support to this view can be sought from State of Haryana v. Iqbal Singh, (197377) Suppl. CLR 740.

In the case in hand it is the common case of the parties that certain first information reports were marked to the appellant for investigation as a public servant and that during the investigation he arrested Mehar Singh alias Mehru PW20 who disclosed that he had pawned the stolen ornaments with Ved Parkash, Bhupinder Singh and Jagdish Lal PWs. During the course of the investigation in his official capacity the appelant could join Jagdish lal, Bhupinder Singh and Ved Parkash in the investigation and could interrogate them and if while doing so he kept them in wrongful confinement all that can be said is that he overstepped his authority. It cannot, however, be said that he did not act in that manner while purporting to act in the discharge of his official duty. It stands established by documentary evidence that very Mehru admitted the recovery of stolen ornaments and confessed his guilt before the Judicial Magistrate Ist Class and was convicted and sentenced to rigorous imprisonment for three months as per judgment Exhibit DY/1. So, to my mind, the charges against the appellant could not be proved unless the whole series of acts committed by the appellant while purporting to act in the discharge of his official duty were proved. So, in this view of the matter, I hold that sanction under Section 197(2) of the Code of Criminal Procedure was necessary.

So, I am of the considered view that in the case in hand sanction under Section 197(2) of the Code of Criminal Procedure was a prerequisite for the prosecution of the appellant and that the sanction granted under section 6 of the Prevention of Corruption Act for his prosecution is also not proper for the aforesaid reasons. Consequently this appeal is allowed and the conviction and sentence of the appellant are set aside. The fine, if recovered, would be refunded to the appellant. In view of my finding in this appeal, Criminal Appeal No. 659SB of 1984 filed by the State is dismissed.

JUDGMENT accordingly.