KAILASH SETHI Vs. STATE

JUDGEMENT

(1.) THROUGH this revision the applicant (Sri Kaiiash Sethi) has prayed for quashing the com plaint dated 4-9- 1976 and all further proceedings in case No. 1725 of 1976 (court of the Chief Judicial Magistrate, Gorakhpur) arising out of that com plaint. The applicant is a member of Indian Revenue Service and in June, 1976 was posted as Assistant Collector, Customs at Gorakhpur. One of his duties was to check and prevent smuggling from Nepal whose border is continuous to the district of Gorakhpur. The land Customs station on the Indian side is located at Sonauli Nautanwa in connec tion with his checking work. He learnt there that a customs party consisting of several Inspectors was lying in wait for a Fiat car bearing registration No. USE 1668 as they suspected that that car was engaged in smuggling, contraband goods into Indian territory. That car was seen coming towards the Indian border but all of a sudden it geared back and went towards Nepal border. After some time that car again came from the side of Nepal border and entered Indian territory. The Customs Inspectors stopped that car in the presence of the applicant for the purpose of searching it. They searched that car but did not find anything contraband in it. Four persons were found sitting in the car'-one being Dr. Suresh Chandra Shukla, opposite party No. 2. All these four persons were interrogated and their statements recorded. Thereafter, they were allowed to go away in their car. On 4-9-1976 opposite party No. 2. filed a complaint against the applicant and two Customs Inspectors under sections 342, 211, 504, 506 and 500 I.P.C. in the court of Chief Judicial Magistrate, Gorakhpur, In his com plaint O.P. No. 2 mentioned that on 28-8-76 he had got a news item published in a local newspaper focussing therein the corrupt activities of the Customs Department. This thing was said to have lirked them. On 29-8-76 he was on his way to Nepal in the Fiat car of one Sardar Pratap Singh to see his ailing friend there. Two persons were also with him in that car. When the car reached near Sanauli Check Post, the applicant asked Sardar Pratap Singh to give lift to three of his friends in his car to Nepal. He bluntly refused to accede to his request. They then pro ceeded to Nepal. On the same day, at about 5 p.m., they were on their way back to India, when the applicant and two others armed with lethal weapons stopped their car and boldly declared that they would teach them a lesson for having refused to take their men in their car to Nepal and also for having got a news item published against them in a local newspaper. The applicant then dragged him (O.P. No 2) out of the car and with the help of his collegues forcibly took him to a room and con fined him there. After some time the applicant at the point of revolver forced him to make a statement which was taped. Thereafter the applicant forced him to write a statement on a paper for being used against him later. Having done that, the applicant took him to P.S. Nautanwa and got a false case registered against him. On the basis of the complaint afore said, the Magistrate summoned the applicant and the other accused of the case. These persons assailed the order summoning them on the ground that it was without jurisdiction. They alleged that whatever they were said to have done in this case, they had done as public servants in the discharge of their official duty. Consequently it was not open to the Magistrate to take cogniz ance of the offence against them without the requisite sanction under section 197 Cr.P.C. for their prosecution. The Magistrate did not find favour with the contention raised on their behalf and over-ruled it, vide order dated 8-9-76. The applicant went up in revi sion against this order. The revisional court quashed the order summoning the accused of the case and sent the case back to the court of the Magistrate with the direction that he should re-consider the matter and decide afresh whether sanction under section 197 Cr.P.C. for taking cognizance was necessary or not. After the remand of the case, the Magistrate again took the view that in this case sanction under section 197 Cr.P.C. was not necessary because the acts alleged to have done by the accused persons did not fall within the scope and range of their official duty. Accodingly, he again summoned them, vide order dated 12-4-77. It is against this order that this revision has been filed. Originally, the applicant had assailed the correctness of the order dated 12-4-77 by filing an application under section 482 Cr.P.C. At the start of the hearing of the case, the learned counsel for the applicant made an oral prayer that he may be permitted to convert this application into a revision. He made this prayer thinking that as he had not challenged the impugned order by way of revision, this thing might stand in the way of his application under section 482 Cr.P.C. The counsel for O.P. No. 2 did not oppose his prayer at that time and accordingly the applicant was permitted to convert this application into a revision. Subsequently, after a day or so, when the arguments in the case were at the last stage, the learned counsel for O.P. No. 2 took up the case that this revision was incompetent as being barred by time. According to him, on the date on which this applica tion under section 482 Cr.P.C. was allowed to be converted into a revision, more than ninety days had expired and, therefore, the revision stood barred by time. I do not think it is open to the learned counsel to raise this objection at the stage at which he raised it. At the time when the prayer to convert this application into a revision was made, he never raised any objection against it. Now he cannot be permitted to turn round and say a thing which would unsettle a fact which has already been settled. On merits also his contention is devoid of all tenability. The appli cation under section 482 Cr.P.C. to challenge the impugned order was filed within seven days of the order. It is true that the order to convert this application into a revision was passed after a lapse of several months, but that is a thing of not much consequence. The revision will be deemed to have been filed on the date on which the application under section 482 Cr.P.C. was filed. In this view of the matter, the revision cannot be said to be barred by time. The above apart, it is well estab lished that the High Court possesses a general power of superintendence over the actions of courts subordinate to it. The High Court can, at any stage, of its own motion, if it so desires, and certainly when illegalities or irregula rities resulting in injustice are brought to its notice, call for the records and examine them. This right of the High Court is not dependent on the time when it does so. It can do so at any time the question of limitation cannot prevent it from exercising its right in this regard. In this case as would appear from the discussion to be made hereafter, illegalities have certainly been done by the court below and, therefore this court has got a statutory duty to correct those illegalities so that justice may not be thwarted. Before I dwell on the merits of the case, it may be worthwhile to know the scope and range of section 197 Cr. P. C. The object of this section is to guard against vexatious proceedings against public servants and to see that no pro ceeding is started against them unless there are good reasons to suppose that there is some foundation for the charges. It is true that if a public servant com mits a common offence, he has no peculiar privilege, but if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction for the obvious reason that otherwise official action would be set by private prose cutions. This would be against public interest. Before the provisions of sec tion 197 can be invoked in the case of a public servant two conditions must be present, (1) that the accused was a public servant who was removable from his office only with the sanction of the State Government or the Central Government and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. In Amrik Singh v. State oj Pepsu (A. I. K. 1955 S. C. 309.), their Lord ships observed : "If the acts complained of are so integrally connected with the duties attaching to the office as to be in separable from them, then sanction under section 197 (1) would be neces sary, but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts then an action would be required." Likewise in Matajog Deboy v. H C. Bhari(A.I.R. 1954 S.C. 44), their Lordships observed : "There must be a reasonable con nection between the act and the dis charge of official duty ; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." After having known the scope and range of section 197 Cr. P. C., now let us turn to the facts of the case before us. A reading of the complaint filed by O. P. No. 2 shows that the applicant had allegedly committed three kinds of offences, namely, (i) illegally confined O. P. No. 2, (2) forced him to write something against his wishes, and (3) intimidated O. P. No. 2, put him in fear of his life by pointing a pistol at him and forced him to repeat certain statements and got the same tape-recorded. We have to see whether the acts attributed to the applicant were or were not done by him in the exercise of his official duty. The applicant is undoub tedly an officer of the Customs Depart ment. Admittedly, one of his duties is to check smuggling of contraband goods either from Nepal to India or from India to Nepal. The border of Nepal adjoins Gorakppur district. There is a check post on the Indian side at Nautanwa and it is at this post that intense checking is generally done. As an officer of the Customs Department, the applicant can stop anybody at the check post for the purpose of checking. He can also interrogate him, search him and record his statement. In view of this, the applicant was fully entitled to stop the car of O. P. No. 2 for finding out whether he was indulging in smuggl ing activities or not. If he suspected in the least that O. P. No. 2 had been to Nepal on a mission connected with smuggling activities, he could certainly have detained him for his interrogation and for recording his statement. If, therefore, the applicant detained O. P. No. 2 for some time at the check post, interrogated him, may be rudely, and recorded his statement, he could not be said to have done a thing which he was not legally entitled to do. Obviously, on the face of it, whatever the applicant did, he did in the discharge of his official duty. The learned counsel for O. P. No. 2 contended that some of the acts which the applicant did in this case, for example, threatening and intimidating O. P. No. 2, illegally detaining him at the check post for several hours and extorting his statements by putting him in fear of his life, could not be said to be reasonably connected with the dis charge of his official duty and, therefore, sanction of the Government for his prosecution under section 197 Cr. P. C. was not necessary under law. Even if one took it for a moment that the applicant did what he is being accused of having done, it will not make any difference in so far as the bar of section 197 Cr. P. C. is concerned. The language of this section clearly is that no Court can take cognizance of an offence alleged to have been committed by a public servant if that offence is committed by him while acting or purporting to act in the dis charge of his official duty. It does not matter if the acts were strictly necessary for the discharge of the duty. What has to be found out is whether the act and the official duty were so inter related that one could postulate reason ably 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 See Prabhakar V. Singri v. Shanker Anant Verlakar (A.I.R. 1969 S. C. 686). Therefore, even if the applicant committed some excesses in this case, as pointed out by O. P. No. 2, he cannot be prosecuted without the Government's sanction under Sec. 197 Cr. P. C. The learned counsel for O. P. No. 2 drew my attention to certain rulings to show that where a public servant exceed ed the limits of his official duty, he can not be allowed to claim protection afforded by section 197 Cr. P. C. The first ruling relied upon by him is Namdeo Kashinath Aher v. H. C. Vertak and another(A.I.R. 1970 Bom. 385). In this case accused no. 1 was a Minister of State Cabinet, Bombay, while accused no. 2 was the President of the Zila Panshad, Thana. In his capacity as a Minister, accused no. 1 was addressing a gathering on the occasion of an opening ceremony of a Milk Powder Distribution Centre when the complainant rose and beckled him on a certain matter. Accused No. 1 lost his temper and called the com plainant a "Goonda". Accused No. 2 was also present in that meeting and he called the complainant a 'Badmash'. The complainant filed a complaint against the two accused alleging that they had committed an offence under section 500 I. P. C. Accused No. 1 raised an objection that he was a public servant within the meaning of section 197 Cr. P. C. and the Court could not take cognizance of any complaint made against him without the previous sanction of the State Government. The Magistrate over-ruled his objection, whereupon he preferred a revision in the Court of Session at Thana. The Sessions Judge took the view that accused no. 1 was a public servant and as such was entitled to the protection under section 197 Cr. P. C. He, there fore, made a reference to the High Court for quashing the order passed by the Magistrate. The High Court reject ed the reference made by the Sessions Judge and held that accused no. 1 was not entitled to any protection under section 197 Cr. P. C. The Court observed that it was no part of the official duty of any public servant to call anybody a 'goonda'. The Court further observed that even if one assumed that the Minister merely ex ceeded the limits of official duty, the excess was so blatant as to lose the colour of office and also the protection avail able under section 197 Cr. P. C. The second ruling relied upon by the learned counsel for O. P. No. 2 is Bhagwan Prasad Srlvastava v. N. P. Misra(A. I. R. 1970 S. C. 1661). The complainant in this case was a Civil Assistant Surgeon in the Civil Hospital in the same Chapra. The accused was Civil Surgeon in the same hospital. While performing an operation in the Operation Theatre, the accused abused the complainant before patients and hospital staff and ordered the hospital cook to "turn out this Badmash" mean ing the complainant and the cook actually pushed out the complainant. The com plainant filed a complaint against the Civil Surgeon and accused him of having insulted and humilated him in the eyes of public, as a result of which he was put to great mental pain and agony. The Civil Surgeon claimed protection under section 197 Cr.P.C. The Supreme Court held that the act attributed to the Civil Surgeon was not a part of his official duty and as such no sanction was required under section 197 Cr. P. C. for his prosecution. Lastly, the learned counsel for O. P. No. 2 drew my attention to the ruling reported in Ram Nath v. Salig Ram Shartna(A. I. R. 1967 All. 519). In this case some students raided a railway station in Jaunpur, looted it and damaged its property. In that connection some of them were arrested and taken to Thana for interro gation. They were kept under detention for a long time and the Station Officer asked them to make a statement against the Principal of the College which they refused to do. On the next day, the Deputy Superintendent of Police arrived there and inquired whether the arrested persons had made a statement or not. When he was informed that they were unwilling to do so, the Deputy Superintendent of Police assaulted them with fists and kicks as well as with a Gupti. They were also threatened with dire conequences in case they refused to make a statement as desired by the police. On account of fear induced by the said threats and assault committed on them they were coerced to make a statement before a Magistrate. On these allegations two complaints were filed by two different persons against the Deputy Superintendent of Police under sections 323, 330, 342, 194, 195 and 196 I. P. C. The accused made an application that the complaints were barred under section 197 Cr. P. C. on the ground that the sanction of the State Government had not been obtained against him in respect of acts done by him in the discharge of his official duty. The objection was upheld by the Magis trate, who dismissed the complaint on the ground that the accused was a public servant and the offence alleged to have been commuted by him being an act done or purported to have been done in discharge of official duty, the complaint lodged against him without the sanction of the State Government was liable to be dismissed. The High Court held that the accused was not entitled to the protection afforded by section 197 Cr. P. C. because the acts attributed to him could not have any relation to his official duty as a police officer. It observed that it is no part of the duty of the police officer to assault a witness to obtain a statement from, him. None of the three rulings relied upon by the learned counsel for O. P. No. 2 bears any relevance to the facts of the case before us. In all these three cases the accused had exceeded the limits of his official duty and the excess done was found to be so blatant as to lose the colour of office. In the case before us, the applicant had not done anything which he could not have done while acting or purporting to act in the discharge of his official duty. The few excesses which he was alleged to have committed were not such as to disentitle him to the protection afforded by Sec tion 197 Cr. P. C. They were inter related with his official duty and were done by him in the performance of that duty. That being so, it was not open to the Magistrate to take cognizance of the case against him without the requisite sanction under section 197 Cr. P. C. The order passed by the learned Magistrate is patently without jurisdiction and cannot, therefore, be allowed to stand. In the result, I allow this revision and quash all proceedings in Case No. 1725 of 1976 pending in the Court of C. J. M., Gorakhpur in so far as it relates to the applicant.