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PETITIONER:

ABDUL WAHAB ANSARI

Vs.

RESPONDENT:

STATE OF BIHAR & ANR.

DATE OF JUDGMENT: 17/10/2000

BENCH:

G.B.Pattanaik, M.B.Shah, S.N.Phukan

JUDGMENT:

PATTANAIK,J.

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Leave Granted.

The appellant is a public servant and on 26.4.1993,

the Sub Divisional Magistrate asked for an explanation from

him as to why the encroachment in question is not being

removed notwithstanding the direction of the High Court.

The said Sub Divisional Magistrate by order dated 25th of

June, 1993, appointed the appellant as a Duty Magistrate and

one Shri Vinod Pal Singh as Senior In-charge Magistrate of

the Police Force, who were required to remove the

encroachment in question. The said appellant visited the

encroachment site and requested the encroachers for removal

of encroachment and on 16.7.1993 was able to remove the

encroachment partially and reported the said fact to his

senior officer, but on 17.7.1993, when the appellant along

with armed force, reached the encroachment site, several

miscreants armed with weapons, started hurling stone and as

the situation became out of control, after giving due

warning, the appellant was compelled to give order for

opening fire and dispersed the mob. On account of such

firing, one of the persons died and two others were injured

and the appellant then sent a report to his senior officer

about the incident. The son of the deceased, who is

respondent No. 2, filed a complaint before the Chief

Judicial Magistrate, alleging commission of offence by the

appellant under Sections 302, 307, 380, 427, 504, 147, 148

and 149 IPC as well as Section 27 of the Arms Act. The

Chief Judicial Magistrate by his order dated 24.11.1995,

came to the conclusion that there is sufficient evidence

available to establish that prima facie case under Sections

302, 307, 147, 148, 149 and 380 is made out against the

accused and, therefore, he directed issuance of non-bailable

warrants against the appellant and other accused persons.

The Chief Judicial Magistrate was also of the opinion that

the provisions of Section 197 of the Code of Criminal

Procedure will have no application to the facts of the case.

The appellant then moved the High Court under Section 482 of

the Code of Criminal Procedure, praying inter alia that no

cognizance could be taken without a sanction of the

appropriate Government, as required under sub-section (2) of

Section 197 of the Code of Criminal Procedure, when the

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appellant was discharging his official duty pursuant to an

order of the Competent Authority. The High Court, however

without going into the merits of the matter and being of the

opinion that all the questions may be raised at the time of

framing of charge, disposed of the application filed by the

appellant and hence the present appeal in this Court. It

may be stated that there was a dispute between two sets of

Mohammedan residents, one set complaining against the other

about the encroachment of the property belonging to the

mosque and the appellant as the Circle Inspector, on the

basis of the said complaint had inquired into the matter and

on the basis of a detailed inquiry, a finding had been

arrived at, that the situation at the site was volatile for

which on 27th of March, 1991, order under Section 144

Cr.P.C. had been promulgated. Thereafter the appellant had

made several requests to the encroachers for removal of the

encroachment and ultimately the Sub Divisional Magistrate,

Aurangabad by his order dated 25th of June, 1993, appointed

the appellant as Duty Magistrate for use of Police Force to

remove encroachment in question. When the present appeal

had been listed before us, a judgment of this Court in the

case of Birendra K. Singh vs. State of Bihar, reported in

JT 2000(8) SC 248, had been placed before us and it was

contended that the question of applicability of the

provisions of Section 197 Cr.P.C. can be raised at the

stage of framing of charge and, therefore, the impugned

order of the High Court does not require any interference by

this Court. The aforesaid decision no doubt supports the

contention of the learned counsel, appearing for the

respondent to a great extent but as we doubted the

correctness of the aforesaid ennunciation of law, the matter

had been referred to a Three Judge Bench and that is how we

are in session of the matter.

The learned counsel appearing for the appellant

contended before us that on the plain language of Section

197 of the Code of Criminal Procedure, when the Court is

debarred from taking cognizance of the offence except with

the previous sanction of the competent authority, if it is

established that the offence alleged had been committed by

him while acting or purporting to act in discharge of his

official duty, there is no justification for the accused to

wait till the stage of framing of charge is reached and the

High Court, therefore was in error in not exercising the

jurisdiction vested in law. On the facts of the case, the

learned counsel submitted that the appellant being present

at the place of occurrence pursuant to an order of the

Magistrate with the Police Force and was required to remove

the encroachment in question and he ordered for firing when

the situation went out of control, while discharging the

duty of removal of encroachment and pursuant to such firing,

a person died and two persons were injured, the irresistible

conclusion is that the use of police force related to the

performance of the official duty of the accused appellant,

within the meaning of Section 197 of the Code of Criminal

Procedure and consequently, without prior sanction of the

competent authority, the Court could not have taken

cognizance of the offence on the basis of a private

complaint.

Mr. S.K. Sinha, the learned counsel appearing for

the complainant-respondent as well as Mr. B.B.Singh, the

learned counsel appearing for the State of Bihar, fairly

stated that the judgment of this Court in Birendra K.

Singhs case has been too widely stated and there is no

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requirement for the accused to wait till the stage of

framing of the charge is reached for raising the contention

with regard to the applicability of Section 197 of the Code

of Criminal Procedure. So far as the applicability of the

provisions of Section 197 of the Code of Criminal Procedure

is concerned, in the facts and circumstances of the present

case, though Mr. B.B. Singh, appearing for the State of

Bihar submitted that the gravamen of the allegation made in

the complaint unequivocally indicate that the appellant was

discharging his official duty when he directed for opening

of fire to control the mob and, therefore, the provisions of

Section 197 of the Code of Criminal Procedure would apply.

Mr. Sinha, the learned counsel appearing for the

complainant-respondent on the other hand contended that the

act complained of cannot be held to be in discharge of

official duty of the appellant and, therefore the provisions

of Section 197 of the Code of Criminal Procedure will have

no application.

In view of the rival submissions at the Bar, two

questions arise for our consideration: 1. Assuming the

provisions of Section 197 of the Code of Criminal Procedure

applies, at what stage the accused can take such plea? Is

it immediately after the cognizance is taken and process is

issued or it is only when the Court reaches the stage of

framing of charge as held by this Court in Birendra K.

Singhs case. ? 2. Whether in the facts and circumstances

of the present case, is it possible for the Court to come to

a conclusion that the appellant was discharging his official

duty and in course of such discharge of duty, ordered for

opening of fire to control the mob in consequence of which a

person died and two persons were injured and in which event,

the provisions of Section 197 of the Code of Criminal

Procedure can be held to be attracted?

So far as the first question is concerned, on a plain

reading of the provisions of Section 197 makes it crystal

clear that the Court is prohibited from taking cognizance of

the offence except with the previous sanction of the

competent authority. For a better appreciation of the point

in issue, Section 197(1) is quoted herein- below in extenso:

Section 197(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, of the State Government.

Previous sanction of the competent authority being a

pre- condition for the Court in taking cognizance of the

offence if the offence alleged to have been committed by the

accused can be said to be an act in discharge of his

official duty, the question touches the jurisdiction of the

Magistrate in the matter of taking cognizance and,

therefore, there is no requirement that an accused should

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wait for taking such plea till the charges are framed. In

Suresh Kumar Bhikamchand Jain vs. Pandey Ajay Bhushan and

Ors., 1998(1) SCC, 205, a similar contention had been

advanced by Mr. Sibbal, the learned senior counsel

appearing for the appellants in that case. In that case,

the High Court had held on the application of the accused

that the provisions of Section 197 gets attracted.

Rejecting the contention, this court had observed:

The legislative mandate engrafted in sub-section (1)

of Section 197 debarring a court from taking cognizance of

an offence except with a previous sanction of the Government

concerned in a case where the acts complained of are alleged

to have been committed by a public servant in discharge of

his official duty or purporting to be in the discharge of

his official duty and such public servant is not removable

from his office save by or with the sanction of the

Government touches the jurisdiction of the court itself. It

is a prohibition imposed by the statute from taking

cognizance, the accused after appearing before the Court on

process being issued, by an application indicating that

Section 197(1) is attracted merely assists the court to

rectify its error where jurisdiction has been exercised

which it does not possess. In such a case there should not

be any bar for the accused producing the relevant documents

and materials which will be ipso facto admissible, for

adjudication of the question as to whether in fact Section

197 has any application in the case in hand. It is no

longer in dispute and has been indicated by this Court in

several cases that the question of sanction can be

considered at any stage of the proceedings."

The Court had further observed:

The question of applicability of Section 197 of the

Code and the consequential ouster of jurisdiction of the

court to take cognizance without a valid sanction is

genetically different from the plea of the accused that the

averments in the complaint do not make out an offence and as

such the order of cognizance and/or the criminal proceedings

be quashed. In the aforesaid premises we are of the

considered opinion that an accused is not debarred from

producing the relevant documentary materials which can be

legally looked into without any formal proof, in support of

the stand that the acts complained of were committed in

exercise of his jurisdiction or purported jurisdiction as a

public servant in discharge of his official duty thereby

requiring sanction of the appropriate authority.

In the case of Ashok Sahu vs. Gokul Saikia and Anr.

1990 (Supp.) SCC 41, this court had said that want of

sanction under Section 197 of the Code is a prohibition

against institution of the proceedings, and the

applicability of the Section must be judged at the earliest

stage of the proceedings and in that case, the Court

directed the Magistrate to consider the question of sanction

before framing a charge. In yet another case, in the case

of P. Saha and ors. Vs. M.S.Kochar, 1979(4) SCC 177, a

three Judge Bench of this Court had held that the question

of sanction under Section 197 Cr.P.C. can be raised and

considered at any stage of the proceedings and further in

considering the question whether or not sanction for

prosecution was required, it is not necessary for the Court

to confine itself to the allegations in the complaint, and

it can take into account all the material on the record at

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the time when the question is raised and falls for

consideration. This being the position, we are of the

considered opinion that the decision of this Court in

Birendra K. Singhs case JT 2000 (8) SC 248, does not lay

down the correct law by directing that the objection on the

question of sanction can be raised at the stage of framing

of charge and not at any prior point of time.

Coming to the second question, it is now well settled

by the Constitution Bench decision of this Court in Matajog

Dobey vs. H.C. Bhari, 1955 (2) SCR 925, that in the matter

of grant of sanction under Section 197 of the Code of

Criminal Procedure the offence alleged to have been

committed by the accused must have something to do, or must

be related in some manner, with the discharge of official

duty. In other words, there must be a reasonable connection

between the act and the discharge of official duty; the act

must bear such relation to the duty that the accused could

lay a reasonable claim, but not a pretended or fanciful

claim, that he did it in the course of the performance of

his duty. In the said case it had been further held that

where a power is conferred or a duty imposed by statute or

otherwise, and there is nothing said expressly inhibiting

the exercise of the power or the performance of the duty by

any limitations or restrictions, it is reasonable to hold

that it carries with it the power of doing all such acts or

employing such means as are reasonably necessary for such

execution, because it is a rule that when the law commands a

thing to be done, it authorises the performance of whatever

may be necessary for executing its command. This decision

was followed by this Court in Suresh Kumar Bhikamchand

Jains case, 1998(1) SCC 205, and in a recent judgment of

this Court in the case of Gauri Shankar Prasad vs. State of

Bihar and Anr., 2000 (5) SCC 15. The aforesaid case has

full force even to the facts of the present case inasmuch as

in the said case, the Court had observed:

It is manifest that the appellant was present at the

place of occurrence in his official capacity as Sub-

Divisional Magistrate for the purpose of removal of

encroachment from government land and in exercise of such

duty, he is alleged to have committed the acts which form

the gravamen of the allegations contained in the complaint

lodged by the respondent. In such circumstances, it cannot

but be held that the acts complained of by the respondent

against the appellant have a reasonable nexus with the

official duty of the appellant. It follows, therefore, that

the appellant is entitled to the immunity from criminal

proceedings without sanction provided under Section 197

Cr.P.C.

It is not necessary for us to multiply authorities on

this point and bearing in mind the ratio of the aforesaid

cases and applying the same to the facts of the present case

as indicated in the complaint itself, we have no hesitation

to come to the conclusion that the appellant had been

directed by the Sub-Divisional Magistrate to be present with

police force and remove the encroachment in question and in

course of discharge of his duty to control the mob, when he

had directed for opening of fire, it must be held that the

order of opening of fire was in exercise of the power

conferred upon him and the duty imposed upon him under the

orders of the Magistrate and in that view of the matter the

provisions of Section 197(1) applies to the facts of the

present case. Admittedly, there being no sanction, the

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cognizance taken by the Magistrate is bad in law and unless

the same is quashed qua the appellant, it will be an abuse

of the process of Court. Accordingly, we allow this appeal

and quash the criminal proceeding, so far as the appellant

is concerned.