MANOHARAN Vs. DIRECTOR GENERAL OF POLICE

JUDGEMENT

(1.) A private complaint dated 17. 6. 1998 (Ext. PI) was filed by the 4th respondent before The Chief Judicial Magistrate, Thiruvananthapuram. It was forwarded to the Fort Police Station and crime was registered as Crime No. 194/98. Ext. P2 is the copy of the F. I. R. in the above crime. After investigation Ext. P3 charge sheet was filed. Petitioner was the third accused in the case. The accused 1 and 2 on the one side and respondents 4 and 5 on the other side claimed management of a Training College owned by Kerala Nadar Mahajana Sangham. There are several litigations between them. Main allegation against the petitioner in the complaint was that he colluded with accused No. 2 in preparing a forged resignation letter of the fourth respondent from the Sangham and registered the same. Petitioner was the district Registrar at that time. Charges were made for offences under ss. 120 (B), 465, 468 & 471 of I. P. C.

(2.) THIS Writ Petition is filed to quash Exts. P2 and P3 f. I. R. and Charge Sheet as far as it is against the petitioner or for a direction to reinvestigate the matter by another officer. There is an allegation in the Original Petition that investigation was conducted by 3rd respondent who is a close relative of 5th respondent and complaint itself was filed at the instigation of the 5th respondent to grab the management of a Training College owned by the Sangham. Several cases are pending regarding the management of the training college in which 5th respondent is also a party. Interim stay of the proceedings pursuant to Exts. PI to P3 were obtained by the petitioner. Fifth respondent filed a counter affidavit denying any kind of relationship with himself and 3rd respondent investigating Officer.

(3.) WITH regard to the contentions that sanction was not obtained before the filing of charge sheet etc. have to be considered depending upon the facts of the case and petitioner has to raise those contentions before the Magistrate's Court where the case is pending. S. 197 (1) of Cr. P. C. reads 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, or the State Government. (PROVIDED that where the alleged offence was committed by a person referred to in Cl. (b) during the period while a Proclamation issued under Cl. (1) of Art. 356 of the Constitution was in force in a State, Cl. (b)will apply as if for the expression "stale Government" occurring therein, the expression "central Government" were substituted.)" It is settled law that object of S. 197 Cr. P. C. is to protect public servants against frivolous or vexatious proceedings for acts done in discharge of official duty and to see that no proceedings is started unless there is some foundation for the charge sheet. Appropriate authority should be satisfied that there is a. prima facie case for starting prosecution as held by the Apex Court in R. R. Chari v. State of U. P. (AIR 1962 SC 1573 ). The bar imposed by the Section is absolute and the Section regulates the jurisdiction and competence of the court as negative words are used as "no court shall take cognizance". But for invoking the section two conditions must be satisfied. (1) Public servant is removable from the office only with the sanction by the Union Government or State Government and not by a lesser authority and he is accused of an offence alleged to have committed while acting or purporting to act in the discharge of his official duty. It is not stated in the Writ Petition who is the authority authorised to remove the petitioner from service when the act was alleged to have done. For this evidence is necessary. Further, immunity from prosecution without sanction extends only to acts which can be shown to be done in discharge of official duty or purported to be done in such discharge, but an offence arising out of abuse of official position by an act not purporting to official does not require sanction. According to respondents offences alleged are not actually form part of his official duty as criminal conspiracy and forgery of documents are not part of the official duty of the District Registrar. It is also not mere commission of an excess act while doing official duties. Whatever be the merit of the contentions, this has to be looked first by the trial court as facts are involved and not under Art. 227 of the Constitution of India. All depends upon facts of each case. In this connection I refer to the decisions in amrik Singh v. State of Pepsu (AIR 1955 SC 309), Baijnath v. State of M. P. (AIR 1966 S. C. 220), B. P. Srivastava v, N. P. Mishra (AIR 1970 SC 1661) & Pukhrai v. State ofrajasthan (AIR 1973 SC 2591 ). What offences can be held to have been committed by public servant while acting or purporting to act in the discharge of duty are recently considered by the Supreme Court in Gauri Shankar Prasad v. State of Bihar (2000 AIR SCW 3135 ). In paragraphs 8 it is observed as follows. "8. What offences can be held to have been committed by a public servant while acting or purporting to act in the discharge of his official duties is a vexed question which has often troubled various Courts including this Court. Broadly speaking, it has been indicated in various decisions of this Court that the alleged action constituting the offence said to have been committed by the public servant must have a reasonable and rational nexus with the official duties required to be discharged by such public servant. " Thereafter Apex Court relied on the observations in earlier decision in Matajob Dobey v. H. C. Bhandari (AIR 1956 SC 44) as follows. "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 S. 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. "