S.P.Singh vs G.D.Sharma

R.L. Anand, J.

By this judgment, I dispose of two Criminal Miscellaneous No. 6751M of 1998 titled as Shri S.P. Singh v. Dr. G.D. Sharma and Criminal Miscellaneous No. 2742M of 1999 titled as Roshan Lal Sharma v. Dr. G.D. Sharma, as both these petitions can be disposed of by one judgment as the common question of law and fact was involved. Moreover, the prayer made by both the petitioners is common, i.e., for quashment of the complaint moved by Dr. G.D. Sharmarespondent under Section 500 of the Indian Penal Code along with the summoning order dated 16.7.1997 passed by the Court of the Sub Divisional Judicial Magistrate, Pathankot.

Shri S.P. Singh is an I.A.S. officer. He has alleged in his petition that respondentDr. G.D. Sharma has lodged a false complaint against him and his coaccused Shri Roshan Lal Sharma under Section 500 of the Indian Penal Code and that the said complaint is pending in the Court of Sub Divisional Judicial Magistrate, Pathankot, who has passed the summoning order dated 16.7.1997. It has been alleged by the petitioner that respondentDr. G.D. Sharma in the year 1990 was running Manoj Nursing Training Institute and Hospital at Pathankot. This institute was purportedly to impart training to female Nursing students and parents of some of them made complaints to the Governor of Punjab and other senior government officers inter alia alleging harassment and inhuman treatment of their wards at the hands of respondent and others. This matter in the form of press reports was published in the newspapers, i.e. `Ajit'' and `Punjabi Tribune'' dated 29.4.1990.

The main allegations of parents of the girl students were that the institute was extorting money illegally from the students on one pretext or the other and in case the same was not paid, they were threatened that their admission forms etc. would not be submitted to the Nursing Council. Further, the girls students were threatened a lot and they were being treated very badly. Rough language was used qua them and they were used to be slapped by the wife of Dr. G.D. Sharma, who was Director of the said institute. So much so, the girl students were used to be fined Rs. 10/ to 50/ in case they are found talking with each other and that too in Punjabi or that they do not buy the eatables from the Canteen which was very unhygienic. Moreover, the girl students were not paid their stipends of Rs. 50/ per month, but their signatures were used to be obtained as a token of receipt. The institute at the time of inspection carried out by the Nursing Council used to keep bogus patients and those persons were paid daily wages and provided food for the period they stayed there from the girls hostel, the cost of which was used to be borne by the girls students.

Some of the girls along with their parents met the Governor of Punjab and narrated their tale of woe and to the Adviser to the Governor. The Adviser sent the complaints of the girls and their parents to Deputy Commissioner, Gurdaspur with the remarks to enquire into the matter and ensure that the girls are not harassed and victimised. As a result of that, the petitioner, who was working as Additional Deputy Commissioner (Development), Gurdaspur, was ordered vide order dated 30.4.1990 of the Deputy Commissioner, Gurdaspur, to hold a fact finding inquiry into the affairs of Manoj Nursing Training Institute, Pathankot. The petitioner conducted an inquiry and submitted his report to the Deputy Commissioner, Gurdaspur and found that all the allegations levelled by the students are correct. The enquiry was conducted in the presence of respondent, students and their parents.

A perusal of the enquiry would show that some bogus/fake patients were found lying on the bed, who were factually labourers working on the construction site and further the allegations of extortion of money from the girl students were found to be correct. The Nursestrainees further complained that they were slapped and manhandled by the respondent and his wife and that vulgar and abusive language was used. The enquiry report also reveals that the respondent and his wife used to threat the girlstrainees. It has also been revealed by the petitioner during the course of enquiry that Shri G.D. Sharmarespondent tried to flirt with the traineenurses in the absence of his wife and that the trainees were fined ranging from Rs. 10 to 50/ on flimsy grounds. So much so, one of the traineegirls complained during the course of enquiry that she was given slaps and was forced to sign a bond for bringing Rs. 1000/. During the course of enquiry, it was also found that four girls were made to live in one room which had two cots and two girls used to sleep on one cot and further they were not allowed to switch on the light or fan before the fixed time or to talk with each other. The girls were not even used (allowed ?) to visit the toilet at night. They had to use some make shift utensils in the room itself. Inmates of the students were ordered to keep their windows open at night and torch light was thrown at night from outside the windows. Regarding all these facts, the petitioner reported the entire matter including the torture physical and mental being meted to the girltrainees to the Deputy Commissioner, who forwarded the enquiry report to the government. Thereafter, respondents started making false complaints against the petitioner to the higher authorities because the petitioner exposed the misdeeds of the respondent resulting into closure of the training institute and the administration further evacuated the girlstudents from the training institute and adjusted them to some other training institutes in Punjab.

The respondent filed a Civil Writ Petition No. 6678 of 1990 before the High Court challenging the closure of Manoj Nursing Institute and the matter was examined by Hon'ble Mr. Justice S.S. Sodhi, who observed as follows :

"The matter here concerns the Manoj Nursing Training Institute and Hospital, Pathankot.

The enquiry report of the Additional Deputy Commissioner, Gurdaspur of May 3, 1990, Annexure `A'' to the return filed on behalf of respondent No. 2 regarding the happenings at the petitionerInstitute and the manner in which it was being run, cannot, but invite serious concern. The matter deserves attention of the authorities concerned and certainly calls for further action. It was for this reason that first the Advocate General, Punjab and on the next hearing, the Director Research and Medical Education, Punjab, were specifically directed to be present here in person, as of course, Dr. Goverdhan Datt Sharma, the DirectorcumMedical Superintendent of the said Institute.

The report of the Additional Deputy Commissioner amply warrants the registration of a criminal case on the basis thereof. At the last date of hearing, counsel for the petitioner was specifically asked to show cause why a direction to this effect be not used (issued ?). In the meanwhile, it appears that a criminal case on the basis of this report has already been registered. This matter need not, therefore, be perused any further.

Next is the matter regarding the registration/affiliation granted to the petitioner/Institute by the Punjab State Nursing Council. It was in this behalf informed that such registration/affiliation had been granted only till November 30, 1989, but the petitioner by moving the civil court at Pathankot had obtained an order on April 5, 1990 restraining the Indian Nursing Council and another defendant there from cancelling the registration/affiliation of the petitionerInstitute till further orders. Keeping in view the fact that the registration/affiliation had been granted only till November 30, 1989 the order passed by the Subordinate Judge, Pathankot, cannot be sustained.

A direction is now issued to Dr. Pritpal Singh, Director, Health Services, Punjab and President of the Punjab State Nursing Council to re examine the matter regarding the grant of registration/affiliation to the petitioner Institute keeping in view the report of the Additional Deputy Commissioner and also such other relevant material as may be placed before him by the parties concerned. A thorough probe into the matter by him would indeed be imperative and unless and until fresh registration/affiliation is granted by the Punjab State Nursing Council, the petitionerInstitute is debarred from running it as such or from conducting any courses in Nursing.

The Director Research and Medical Education, Punjab, Dr. H. Handa is on his part, directed to consider cancellation of the licence of Dr. Goverdhan Datt Sharma and his wife Dr. Sandhya Sharma keeping in view the said report of the Additional Deputy Commissioner, Gurdaspur.

A copy of this order be forwarded to the Court of the Additional Senior Sub Judge, Pathankot."

By virtue of the report submitted by the petitioner and by virtue of the order passed by the High Court, the respondent became inimical with the petitioner because the petitioner did not desist from performing his duty and he without fear disclosed the true factual position in his enquiry report. With the mala fide intention, the respondent in order to wreak venegence filed a criminal complaint against both the petitioners under Section 500 of the Indian Penal Code on the allegations that the petitioner has made false allegations and the same was given in the newspaper `Daily Hind Samachar'' dated 5.5.1990 and due to it, the reputation of the respondent was lowered among all his relations, friends and patients. The alleged defamatory news was published in `Daily Hind Samachar'' dated 5.5.1990 and other news item was published regarding the institute of the respondent in Indian Express on 12.5.1990. The petitioner alleges that the complaint was filed by the respondent on 12.6.1997 in the Court of Magistrate after the period of seven years, which is barred by limitation and on that score, the complaint and the summoning order is bad in the eyes of law. It has been further averred by the petitionerShri S.P. Singh that the complaint of the respondent under Section 500 of the Indian Penal Code was also bad because of the provisions of Section 197, Code of Criminal Procedure, which provide that "no Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the competent authority." The respondent has not taken any sanction nor this aspect has been looked into by the summoning Magistrate and therefore, the complaint and the summoning order is bad in the eyes of law.

Shri Roshan Lal Sharma in his Criminal Misc. No. 2742M of 199 has, mainly, alleged that he is a retired Superintendent GradeI from the office of Punjab Nurses Registration Council on 31.1.1997. According to the petitioner, the respondentShri G.D. Sharma was running Manoj Nursing Training Institute and Hospital at Pathankot and that the parents of some of the female nursing students made complaints to the Governor of Punjab and other senior government officers inter alia alleging harassment and inhuman treatment of their wards at the hands of the respondent and others. The matter in the form of press reports was published in the newspapers, i.e. `Ajit'' and `Punjabi Tribune'' dated 29.4.1990. This petitioner has repeated the averments which were made by his copetitioner. When the parents/wards represented to the Governor of Punjab and the Adviser, on the basis of the complaints, Shri S.P. Singh, who was then working as Additional Deputy Commissioner, Gurdaspur, was ordered to hold a fact finding enquiry into the affairs of Manoj Nursing Training Institute, Pathankot vide order dated 30.4.1990 passed by the Deputy Commissioner, Gurdaspur and thereafter, he conducted the enquiry, submitted his report to the Deputy Commissioner, Gurdaspur and the allegations were found to be correct. This petitioner has also referred to the findings given by the Enquiry Officer. The report, ultimately, was submitted by Shri S.P. Singh to the Deputy Commissioner, Gurdaspur, who forwarded the same to the Secretary, Government of Punjab, Health Department. The report was then submitted to the Chief Secretary. Against this report, the respondent filed a Civil Writ Petition before the Hon'ble High Court, which was dismissed by the Hon'ble Division Bench consisting of Hon'ble Mr. Justice S.S. Sodhi and Hon'ble Mr. Justice J.B. Garg. It has been alleged by the petitioner that he was only the Office Superintendent of Punjab Nurses Registration Council and he had no role to play in the entire episode. The complaint has been filed against him by the respondent with a mala fide intention and no offence, prima facie, is made out even after going through the complaint under Section 500 of the Indian Penal Code. According to this petition, the alleged defamatory news were published in the newspapers on 5.5.1990 and on 12.5.1990, but the complaint has been filed by the respondent under Section 500 of the Indian Penal Code after the lapse of 7 years, i.e. on 12.6.1997. It is beyond limitation and the learned Magistrate could not take the cognizance into the matter. So much so, the respondent even made an application before the Sub Divisional Judicial Magistrate, Pathankot to withdraw his application against Ms. A.K. Ahluwalia, who was the then Registrar of Punjab Nurses Registration Council and on the said application, the complaint against Ms. A.K. Ahluwalia was dismissed as withdrawn. The whole allegations of the respondent are totally baseless and the complaint has been filed in order to harass the petitioner. So much so, the respondent has even filed a civil suit for damages against Shri S.P. Singh and Ms. A.K. Ahluwalia. With the above broad averments, Shri R.L. Sharma too has prayed for quashment of the complaint and the summoning order.

Before I proceed further, it will be appropriate for me now to make a mention about the contents of the complaint made by respondent under Section 500 of the Indian Penal Code and then I will deal with the incorporated averments of the reply filed by the respondentDr. G.D. Sharma in this judgment.

As per the complaint which was moved by Dr. G.D. Sharma against S/Shri S.P. Singh, Ms. A.K. Ahluwalia and R.L. Sharma under Section 500 of the Indian Penal Code as on 11.6.1997, it has been averred by the complainantDr. G.D. Sharma that he was the DirectorcumMedical Superintendent of Manoj Nursing Training Institute and Hospital, Dalhousie Road, Pathankot and this institute was rather duly recognised by the Punjab Nurses Registration Council and that it used to impart training in General Nursing from 1984 to 1990 smoothly without any complaint regarding studies and Hostel facilities and that 150 students used to study in this institution. The officials of the Punjab Nurses Registration Council became annoyed due to litigation in two cases for migration of two students to Ludhiana D.M.C. and also issuing diplomas directly to the students against the Rules and Regulations of the Byelaws of P.N.R.C. for which the contempt application/proceedings are still pending in the Court. The respondents of the complaint were in search of time to take revenge by defaming the complainant and they wanted to close the institute. It was alleged by the complainant that about 15 to 18 students were expelled by him for remaining absent from the institute and also on the allegations that they were misbehaving with the Principal. The expelled girls approached the Punjab Nurses Registration Council and they contacted Ms. A.K. Ahluwalia, Registrar and Shri R.L. Sharma, Office Superintendent. Those nurses put up a false story. Those officers instigated the students, who approached the Governor of Punjab. His Excellency ordered the closure of the institute in a dictorial manner and ordered the Deputy Commissioner, Gurdaspur, to hold an enquiry regarding the expulsion of the students and the working of this institute. Deputy Commissioner, Gurdaspur deputed Additional Deputy Commissioner (Development) Shri S.P. Singh to conduct the enquiry, who deliberately brought a mob of 200 persons. Some of them were having arms and they brought some Press Reporters etc. and all of them entered inside the Institution without informing the Security Officer and then they started raising slogans; they became violent; they broke open the windows. So much so, the complainant and his wife sustained injuries and they had a narrow escape. Subsequently, 150 girls students were taken away on Punjab Roadways buses, which were arranged by the Sub Divisional Magistrate and the Additional Deputy Commissioner.

The complainant filed a criminal complaint under Section 323 of the Indian Penal Code on 5.5.1990 and also made a police report on 2.5.1990 in Police Station City Pathankot. The said criminal complaint was dismissed in default. Later on, Shri S.P. Singh on the basis of the criminal complaint levelled number of false allegations against the complainant and his wife Dr. Sandhya Sharma, on the basis of which, their petition in the High Court for reopening of institute was dismissed and even the Hon'ble Supreme Court also dismissed the same. It is alleged by the complainantDr. G.D. Sharma that the story of false allegations was given in the newspapers by the Additional Deputy Commissioner/Deputy Commissioner and others, which was published in `Daily Hindi Samachar'' dated 5.5.1990 under the Heading "That Manoj Nursing Training Institute and Hospital is closed by the Punjab Government" and on 17.5.1990 under the Heading that "Enquiry against Principal of the Institute and his wife is started and a case under Sections 186/189/354/386/420/506 etc. has been registered." In the Indian Express, a news item appeared under the Heading "Career of 150 girls in jeopardy". The complainant alleges that all these items were circulated throughout India. These have been read even by his friends and relations on account of which, his image and reputation was lowered in all sphere of life.

In support of his complaint, Dr. G.D. Sharma led preliminary evidence and vide impugned order dated 16.7.1997, the learned Magistrate, Pathankot, summoned both the petitioners of these two petitionsShri S.P. Singh and Shri Roshan Lal Sharma under Section 500 of the Indian Penal Code . In order to face the charge, I may requote para No. 4 of the order of learned Magistrate in order to find out whether there was an application of mind on the part of the learned Magistrate in such like sensitive issues or not :

"After going through the preliminary evidence on record, I find sufficient ground to proceed against all the accused under Section 500 IPC and as such all the accused are ordered to be summoned for 8.9.1997. PF and copies of complaint be filed within two days."

Now I proceed to make a mention about the written statement which has been filed by Dr. G.D. Sharma in the Criminal Misc. petition. It has been stated by Shri G.D. Sharma that the Criminal Misc. Petitions are not maintainable in the High Court in view of the judgment in K.M. Mathew's case reported in 1992(1) RCR 232 and that the petitioners can seek their remedies before the learned Magistrate under Section 245, Code of Criminal Procedure and also it is stated by the respondent that no sanction under Section 197 of the Code of Criminal Procedure is required in this case. The stand of the respondent on merits is that both the petitioners were handinglove and Shri S.P. Singh in a mala fide manner submitted a report which was based on mere conjecture instead of evidence. Of course, the Hon'ble High Court passed the order, but the same was passed because of the false report submitted by Mr. S.P. Singh. This report only demonstrates how much damage Mr. S.P. Singh had done to the respondent, his family members, and to the Institute. The respondents were tried for the offences and they were, later on, acquitted and the recognition of the institute was also restored. This respondent also submitted that the complaint has been filed in a mala fide manner rather, report has been prepared in a false manner. The news item had lowered the image etc. and therefore, the complaint and the summoning order cannot be quashed.

Now I would like to discuss the cases of both these petitioners on merits.

I have heard Shri A.R. Takkar, Advocate, on behalf of Mr. S.P. Singh and Shri T.P. Singh, Advocate, on behalf of Shri Roshan Lal and Mr. H.S. Bhullar, Advocate, on behalf of Mr. G.D. Sharma and with their assistance, I have gone through the record of this case.

I had already reproduced para No. 4 of the learned Magistrate in verbatim and can say that the learned Magistrate, while passing the summoning order, has not applied his judicial mind before passing this order. In M/s Pepsi Foods Ltd. v. Special Judicial Magistrate, 1997(4) RCR (Criminal) 761, the Hon'ble Supreme Court in para 26 of its judgment held as follows :

"Summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

A reading of the above would show that the summoning of a person as an accused is not an automatic procedure. Before a person is to be summoned as an accused, law Courts should always take note of the fact that the process of summoning a person and putting him in dock is quite cumbersome and it can create problems both mentally and physically to a person who is ordered to stand in the dock. So summoning a person as an accused in a criminal case, is a serious matter. The law Courts should always take into account the observations made by the Hon'ble Supreme Court. It is an irony of the fate that our subordinate Judges do not invariably adhere to and adopt the guidelines of the Apex Court and they adopt cutshort method and summon a person as an accused little realising that what incalculable miseries are bringing unnecessarily for the person who has been ordered to appear as an accused. Para No. 4 of the summoning order would show that the learned Magistrate has not discussed anything as to how he has come to the conclusion about the summoning of the petitioners. The learned Magistrate has also not taken note of the fact that the impugned news item appeared in the year 1990 and he wanted to take a cognizance in the year 1997. The learned Magistrate also did not take care of the fact that the complaint has been filed against an officer, who has submitted the report in discharge of his duties. He was assigned his duties by the Deputy Commissioner, who was directed to hold a fact finding enquiry by His Excellency, the Governor of Punjab. On this short ground that there was nonapplication of mind on the part of the Judicial Magistrate, the summoning order requires to be quashed.

Now I have to see whether this complaint is legally tenable. These petitions have been filed under Section 482 of the Code of Criminal Procedure. In State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 Supreme Court 604, the Hon'ble Supreme Court has laid down as follows :

"In following categories of cases, the High Court may in exercise of powers under Article 226 or under S. 482 of Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of the rare cases."

The Hon'ble Supreme Court has given certain guidelines and as per guidelines No. 6 "Whether there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party." If the complaint on the face of it is barred under the provisions of the Code of Criminal Procedure, and that no further exercise is required to prove this fact, the law Courts should unhesitatingly throw away such a complaint. The cause of action in this case, if any, arose to the complainant on 12.5.1990 or 15.5.1990 when the news items appeared in the newspapers about the alleged atrocity/mismanagement committed by the complainant or that when the contents of the report of the findings were published, the complaint was filed under Section 500 of the Indian Penal Code. The maximum punishment is upto two years, or fine, or both. Section 468 of the Code of Criminal Procedure lays down as follows :

"468 : Bar to taking cognizance after lapse of the period of limitation : (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be :

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years."

Thus, the complaint should be instituted by the complainant within three years from the date of the cause of action, which arose, if any, in the month of May, 1990. The present complaint has been instituted on 10.6.1997 after the period of 7 years and the complaint was hopelessly barred by limitation. Faced with this difficulty, Mr. Bhullar drew my attention to Section 473 of the Code of Criminal Procedure and submitted that "Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice."

The complainant never made efforts to make a request to the Court for condonation of delay in filing the complaint. The reason was obvious that he was less interested in prosecuting the complaint, but he was more interested to take venegence and revenge against the petitioners as to why they had dealt with the matter and as to why they had discharged their obligation in dutiful manner. In these circumstances, this contention of the counsel for the respondent is without any force. Right upto the stage when the petitioners were summoned, there was no move from the side of the petitioners under Section 473 of the Code of Criminal Procedure. The learned Magistrate did not bother to see this aspect that the complaint was hopelessly barred by limitation against both these petitioners and therefore, it could not proceed.

Counsel for the respondent then submitted that in the criminal case under Sections 406/384/354/409/186/189/506/298 and 323 of the Indian Penal Code, respondents have been acquitted vide order dated 18.1.1997 by the Sub Divisional Magistrate, Pathankot and therefore, limitation would start from that date. The argument is not acceptable on two counts :

(i) that the First Information Report is on totally different facts; and

(ii) that law never prevented to the respondent in filing the criminal complaint.

Counsel for the respondent then submitted that in the judgment dated 18.1.1997, there is a finding vide which Er. G.D. Sharma, and his wife had been acquitted. There is a finding of malice against Mr. S.P. Singh. I have gone through that order of the learned Judicial Magistrate I Class, Pathankot and I do not find any finding of the learned Magistrate. There is no finding that the enquiry which was conducted by Shri S.P. Sharma or that the case which has been dealt with by Mr. Roshan Lal, was perverse, mala fide or that Mr. S.P. Singh exceeded his jurisdiction not assigned to him in the discharge of his function.

In J.S. Maini, IAS v. Thakur Hari Singh, 1989(2) RCR 210, it was held by the High Court that when a criminal complaint has been filed beyond period of limitation and the petition has been filed in the High Court for quashment of the same under Section 482 of the Code of Criminal Procedure on the ground of limitation, it is not necessary for the accused to raise this plea at the first instance before the trial Court. He can straightaway show to the High Court that the complaint is hopelessly barred by time and it should be quashed under Section 482 of the Code of Criminal Procedure.

This judgment gives the answer to the objection of Mr. G.D. Sharma as he stated in his reply that the petitioner should approach the Magistrate under Section 245 of the Code of Criminal Procedure in view of the judgment in K.M. Mathew's case regarding which I had already made a mention above. Regarding cause of action, it has been held in Surinder Mohan Vikal v. Ascharj Lal Chopra, AIR 1978 Supreme Court 986 that a complaint under Section 500 of the Indian Penal Code for defamation would be barred if filed three years after the commission of the offence. It was held as follows :

".... Where in a complaint under Section 500 it is alleged that the defamatory matter was contained in a complaint under Sections 406/420 Penal Code against the complainant, the period of limitation for filing complaint under Section 500, Penal Code would commence from the date of the complaint under Section 406/420 Penal Code and not from the date the complainant was finally acquitted of offences under Ss. 406/420 Penal Code. Subs. (1) of S. 469 of Cr.P.C. specifically provides that the period of limitation prescribed in S. 468, in relation to an offender, shall commence (inter alia) on the date of the offence and the question of cause of action would not arise in such case as the controversy relates to the commission of an offence...."

Yet there is another angle of vision to see the complaint and the summoning order and under what circumstances, this enquiry was submitted. A delegation met His Excellency, the Governor of Punjab, and certain allegations were levelled against Dr. G.D. Sharma and his wife Smt. Sandhya Sharma. The Governor is the Head of the State. He has to look several aspects including the aspect of law and order. He has also to ensure that no bungling is being done in the institution, which is benefited by virtue of the acts of the State. The institution of the respondent was affiliated with the Nursing Council; respondent and his wife were in charge of the institution; 150 girls students were admitted there; there were complaints with regard to the working of the institution. I had mentioned some of the alleged acts committed. In these circumstances, it was highly proper for His Excellency to pass suitable orders and to get the matter probed by way of fact finding enquiry. He ordered the Deputy Commissioner, Gurdaspur to look into the matter. The Deputy Commissioner then marked the enquiry to Mr. S.P. Singh, Additional Deputy Commissioner (Development), Gurdaspur, who recorded the fact finding enquiry. After recording the statements of the persons concerned and finding that the allegations are correct, he submitted his enquiry report to the Deputy Commissioner, who sent the report to the State Government. Action was taken. Institution was closed. The respondents attacked the closure of the Institution by way of filing a writ petition in the High Court, but failed. They went in the Hon'ble Supreme Court and there too they failed. A public servant who discharges his duties in the colour of his office is supposed to be protected at the hands of such unscrupulous persons, who want to threat them by lodging false complaints. Of course, when the public servant performs such acts, which have no nexus with his official duties and in that situation, such a public servant cannot claim the protection of Section 197 of the Code of Criminal Procedure. The object of Section 197, Code of Criminal Procedure, is to protect the public servants so that they may be able to discharge their obligation without any fear or favour. If every citizen is allowed to intimidate or prosecute the public servant without resorting to the provisions of Section 197, Code of Criminal Procedure, which has been incorporated mainly for the protection of the public servant, then no public servant will be able to perform his duties with high head. A public servant cannot be allowed to work under the constant threat of fear and at the hands of those persons to whom such a public servant is not in a position to oblige. The Additional Deputy Commissioner (Development) who was an IAS officer at that time, was entrusted a duty. While in his official capacity, he held an enquiry. There is no finding of any competent Court of jurisdiction even by the Magistrate that the enquiry was based on such facts, which never existed or that Mr. S.P. Singh imparted his personal knowledge or that he had acted in a mala fide manner. If the respondents were acquitted by a criminal Court, ipso facto, a conclusion can be drawn that the enquiry which was conducted by the petitionerMr. S.P. Singh was false or that he exceeded his jurisdiction. Rather his enquiry was upheld and was taken note of by the High Court, the officials of which the respondents were chargesheeted in a trial Court had nothing to do with the enquiry itself. Moreover, it is well settled that in a criminal case, the charges are supposed to be proved by the prosecution beyond reasonable doubt. The enquiry which was submitted by Mr. S.P. Singh was taken note of even by the Hon'ble Supreme Court. There is no finding against Mr. S.P. Singh.

Section 197 of the Code of Criminal Procedure lays down that "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 of the Government of India or the State Government, as the case may be." Mr. S.P. Singh was discharging his official duties and in the discharge of such duties, he submitted a fact finding report. In J.S. Maini's case (supra), this High Court held that the point of sanction under Section 197, Code of Criminal Procedure, can even be raised directly in the High Court in a petition under Section 482, Code of Criminal Procedure and it is not necessary for the accused to take this point at the first instance before the trial Magistrate. Why an innocent and faithful public servant should be asked to face criminal proceedings unnecessarily when the complaint does not disclose cause of action or when such a complaint is barred either by limitation or by virtue of the embargo laid down under Section 197, Code of Criminal Procedure.

In R.C. Guptta v. Shri Kanti Krishan Sharma, 1991(1) RCR 660, the Hon'ble High Court has gone even to the extent in saying that if an officer loses his temper and calling his subordinate `Goonda'' and `badmash'' and criminal complaint under Sections 499/500 of the Indian Penal Code is filed against such a public servant, the sanction under Section 197 of the Code of Criminal Procedure of the State Government is still required and if no sanction is obtained such a complaint is liable to be quashed.

In Nangkar Taming v. State of Assam, 1997(4) RCR (Criminal) 647, it was held that there is nexus between act done and performance of discharge of duties. In such a state of affairs, a public servant is entitled to protection under Section 197 of the Code of Criminal Procedure and it is immaterial whether the act was done in excess of his official duties or not.

In the present case, however, I find that Mr. S.P. Singh did not at any point of time behave in such a manner from which a smell can be taken that he was not discharging his duties in the colour of his official capacity. Even Mr. Roshan Lal, Superintendent dealt the report in his official capacity when he was in service. Strange enough, respondentDr. G.D. Sharma withdrew his allegations against Mrs. A.K. Ahluwalia, but wanted to prosecute Mr. Roshan Lal. When the allegations in the complaint are on the same footing, this attitude of the respondent rather indicates that his act was with malice.

Learned counsel appearing on behalf of the respondent simply argued and took the support of the judgment of the Magistrate vide which the respondents were acquitted on 18.1.1997 and it was stated that the complaint was justified under Section 500 of the Indian Penal Code. I had discussed the allegations of the complaint and upto the stage when the impugned order summoning the petitioners was passed by the Magistrate. I have come to this conclusion that the complaint was nothing but an abuse of the process of law and the summoning order too is based on nonapplication of judicial mind.

Resultantly, I allow both these petitions and quash the complaint and the summoning order passed by the Sub Divisional Judicial Magistrate, Pathankot dated 16.7.1997.