SATAYAVEER JHAKHAR Vs. TAJ MOHAMMED RATHORE

JUDGEMENT

(1.) This criminal misc. petitioner under Section 482 Cr.P.C. has been filed against the order dated 21.03.2005 passed by the learned Additional Sessions Judge, Anoopgarh, District Sri Ganganagar in Criminal Revision No. 28/2004, titled Taj Mohd. & Anr. vs. State of Rajasthan & Anr., by which the revising Court set aside the order of cognizance dated 05.01.2005, passed by the Judicial Magistrate, Gharsana in Criminal Case No. 11/2004. The learned Judicial Magistrate, Gharsana had taken cognizance against the respondents-accused (hereinafter 'the accused') for the offences under Sections 167, 201, 204, 420, 466, 471 and 120B IPC and summoned the accused by bailable warrants. The facts of the case are that the petitioner complainant (hereinafter 'the complainant') filed a complaint under Section 167, 201, 204, 466 and 471 IPC against the accused, alleging that the accused No. 1 Taj Mohd. Rathore acting as Tehsildar had issued a notice under Section 22(3) of the Rajasthan Colonisation Act to one Rawata Ram, Executive Engineer, in case No. 138/2003 in his Court. The complainant stated that the noticee Rawata Ram had appointed him as his Advocate whereupon he filed his Vakalatnama in the proceedings before the Tehsildar on behalf of Rawata Ram and submitted reply to the notice. According to complainant, the accused No. 1 thereupon drew an order-sheet in his own hand on 09.10.2003 recording the fact of the reply filed while making certain observations against Rawata am. The matter was put up on 17.10.2003. It was stated that a certified copy of order-sheet dated 09.10.2003 was applied for, whereupon the concerning Clerk accused No. 2 told the complainant that it would take 2 to 4 days in supplying the certified copy of the order dated 09.10.2003. Thereupon the Junior Advocate, assisting the complainant noted the order-sheet of 09.10.2003 in his own hand awaiting the certified copy of the order in issue. It was stated that however the certified copy of order-sheet dated 09.10.2003, when received indicated that it was different from the order-sheet dated 09.10.2003 which had been drawn on the said date and had been noted for personal use by the complainant's Junior Advocate in his own hand-writing. This alteration of the order-sheet dated 09.10.2003 according to the complainant entailed commission of offences under Sections 167, 201, 204, 466 and 471 IPC. In support of complaint, the complainant got examined four prosecution witnesses under Section 200 Cr.P.C. After considering the statements of the complainant and witnesses, the learned Judicial Magistrate, Gharsana vide order dated 5.1.2004 took cognizance of the offences alleged and issued process against the accused Nos. 1 and 2 summoning them. The accused thereupon filed a revision petition before the Addl. Sessions Judge, Anoopgarh against the order of cognizance dated 05.01.2004. On consideration of the matter, the learned Addl. Sessions Judge, Anoopgarh vide order dated 21.3.2005 allowed the revision petition against the order of cognizance dated 5.1.2004 on the ground of no sanction, as warranted under Section 197 Cr.P.C. having been obtained for the prosecution of the accused, who were both Government servants.

(2.) Mr. N.L. Joshi, appearing for the complainant, submits that the order dated 21.3.2005 passed by the Addl. Sessions Judge, Anoopgarh is completely misdirected in holding that sanction for prosecution under Section 197 Cr.P.C. was required against the accused, albeit Government servants, in spite of their having committed offences under Sections 167, 201, 204, 420, 466, 471 and 120B IPC, which could not even remotely be said to be acts in the discharge of their official duties, or even in the purported discharge thereof. It has been submitted that the collusive destruction of the original order-sheet by the two accused drawn in a proceeding under the Rajasthan Colonization Act by the Tehsildar and fabrication of a new order-sheet with an intent to cause injury to Rawata Ram - the noticee in the proceeding under the Rajasthan Colonisation Act could not in any event tantamount to an act in respect whereof the accused could be said to be entitled to the protection of Section 197 Cr.P.C. It has been submitted hat for the benefit/protection of Section 197 Cr.P.C., there has to be a reasonable nexus between the official duties of Government servants and their act's constituting the offences alleged.

(3.) Mr. S.S. Dhillon, appearing for the accused, on the other hand, has submitted that the nature of offences alleged is not relevant for the determination of question as to whether an accused Government servant would be entitled to protection under Section 197 Cr.P.C. He submits that what is relevant is the act of the accused and its nexus with their official duties. It is submitted that Section 197 Cr.P.C. has been enacted by the Legislature keeping in mind the vulnerability of Government servants to false allegations while discharging official duties and the need to protect them. Counsel submits that even through the allegations in the complaint are absurd, wholly false and unsustainable, he does not presently seek to address the merits of the complaint as it is beyond the issue in the petition, but confines his submissions to the right of accused as government servants to be protected under Section 197 Cr.P.C. and not to be proceeded against for the alleged offences without the requisite sanction having been granted by the competent authority. Counsel submits that not only are the acts attributed to the accused clearly in the course of discharge of the official duty (drawing order-sheets by accused No. 1 in the course of adjudication of a notice under the Rajasthan Colonization Act for which the Tehsildar was authorized) but also it could not be conceivably argued that the drawing of the order-sheet dated 09.10.2003 - one way of the other - was at least not in the purported discharge of the official duty of the Tehsildar. It has been submitted that the language of Section 197 Cr.P.C. is preemptive in nature and not to be easily circumvented without a clear case being made out. Counsel submitted that the words "purporting to act" in Section 197 Cr.P.C. entail a liberal and expansive interpretation and would cover all manner of acts and resultant offence's alleged against a Government servant while discharging the job assigned because the word purport" as defined in Concise Oxford Dictionary Eleventh Edition connotes a false claim. It is submitted that hence "purporting to act" should be interpreted to mean "falsely claiming to act" and hence where a Government servant even falsely seeks protection on the ground that the act complained of was in the discharge of his official duties, the jurisdiction of the criminal courts to take cognizance in the first instance would be barred till the grant of sanction for prosecution by the State Government. It is submitted that this interpretation would entail only a temporary relief for a Government servant concerned as on consideration of the matter by the Government, sanction for prosecution could be granted where it was found that there was no linkage between the act of the Government servant and his official duties. Counsel submits that contrarily if Section 197 Cr.P.C. were to be narrowly construed and the protection limited to acts plainly indisputably and unquestionably in the discharge of official duty, the words "purporting to act in the discharge of official duty" would be rendered otiose and the protection under Section 197 Cr.P.C. a mere chimera. It is submitted that such a limited construction of the protection envisaged by the Parliament for Government servant would defeat the object and purpose of Section 197 Cr.P.C. In support of the submissions, counsel for the accused has relied upon the judgments of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. Sheetla Sahai & Ors., 2009 8 SCC 617 , B. Saha & Ors. vs. M.S. Kochar, 1979 4 SCC 177 , Shreekantiah Ramayya Munipalli & Anr. vs. The State of Bombay, 1955 AIR(SC) 287 .