2006 Supreme(SC) 395

2006(4) Supreme 507
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha & P.P. Naolekar, JJ.
Jayasingh—Appellant
versus
K.K. Velayutham & Anr.—Respondents
Criminal Appeal No. 1368 of 2004
Decided on 25-4-2006
Counsel for the Parties :
For the Appellant : M.N. Rao, Sr. Advocate, Mrs. Promila Thananjayan, S. Thananjayan, Advocates.
For the Respondents : V. Krishna Murthy, R. Gopalakrishnan, Jai Kishore, Subramonium Prasad, Advocates.

IMPORTANT POINT
Provisions of Section 197 Cr.P.C. would be attracted if offence alleged to have been committed must have something to do or must be related in some manner with discharge of official duty.

Headnote:Criminal Procedure Code, 1973—Section 197—Indian Penal Code, 1860—Sections 166, 448, 427, 380, 392 and 506(ii)—Cognizance of offence against Dean of Medical College and hospital on the complaint of respondent on which police had submitted charge-sheet after investigation—Tea Stall being run by wife of respondent in Hospital was alleged to have been removed by committing alleged offences—Magistrate accepted appellant’s plea that sanction as required mandatorily in terms of Section 197 Cr.P.C.—High Court allowed revision filed by respondent—Appeal—Tea stall of respondent’s wife was removed pursuant to State Govt. order containing a policy decision to remove all such kiosks etc. on ground that food prepared in such stalls was in unhygienic conditions—Appellant had only complied with order of the Executive Engineer asking to remove said tea stall—No inference could be drawn that appellant committed offence purported to be u/s 427 IPC—No allegations that appellant had transgressed his authority—Prosecution should have obtained an order of sanction—Impugned order was liable to be set aside.

       Held : The basic fact of the matter is not in dispute. The fact that the wife of the respondent No.1 herein was running a tea stall is admitted. It further more stands admitted that the Government of Tamil Nadu issued a Government Order containing a policy decision to remove all such kiosks, tea stalls and bunks from the hospital premises in public interest, inter alia, on the ground that food prepared in such tea stalls in unhygienic conditions and the same had otherwise been causing nuisance to others. No court has declared such a policy decision to be ultra vires. We have noticed hereinbefore that, in fact, the validity of such a policy decision has been upheld by this Court in N. Jagadeesan & Ors. v. District Collector, North Arcot & Ors., (1997) 4 SCC 508.(Para 10)

       If, in the aforementioned situation, the Appellant herein only complied with the order of the Executive Engineer asking him to remove the said tea stall; we are of the opinion that thereby he cannot be said to have committed any offence whatsoever. The name of the appellant was taken by the Executive Engineer himself, under whose direction he acted. He, in his statement made before the police, merely stated that the Appellant by his letter dated 2.8.1997 intimated to him that tea stall had been removed. On the basis of the said statement no inference could be drawn that the Appellant committed an offence purported to be under Section 427 of the Indian Penal Code. From a perusal of the charge-sheet, as also the materials which are available on record, it does not appear that there is anything to show as to how and in what manner the Appellant could be said to have committed a mischief or how the ingredients of the said provisions stood satisfied.(Para 11)

       No allegation had been made against him either in his complaint or in his statement under Section 161 of the Code of Criminal Procedure that he had transgressed his authority or committed the alleged crime. In the aforementioned provisions, we are of the considered view that the prosecution should have obtained an order of sanction in terms of Section 197 of the Code of Criminal Procedure. (Para 12)

       In view of the aforementioned authoritative pronouncements, as noticed hereinbefore, we are of the opinion that the impugned order cannot be sustained as:

       (i)no case was made out to frame charges against the Appellant herein.

       (ii)Even if the statement of the Executive Engineer on the basis whereof the chargesheet has been filed against the Appellant is accepted to be correct, sanction for his prosecution, as envisaged under Section 197 of the Code of Criminal Procedure, in the facts and circumstances of this case was necessary.

       The High Court, therefore, was not correct in allowing the Revision Case filed by the respondent No.1 herein setting aside the order dated 25.8.2003 of the Metropolitan Magistrate. The impugned order is set aside. (Paras 18 and 19)