Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(SC) 377

SUPREME COURT OF INDIA
Sanjay Kishan Kaul, Hemant Gupta, JJ.
INDRA DEVI – APPELLANT
VERSUS
STATE OF RAJASTHAN & ANR. – RESPONDENTS
CRIMINAL APPEAL NO. 593 OF 2021 [Arising out of SLP (Crl) No. 1605 of 2018]
WITH
STATE OF RAJASTHAN – APPELLANT
VERSUS
YOGESH ACHARYA – RESPONDENT
CRIMINAL APPEAL NO. 594 OF 2021 [Arising out of SLP (Crl) No.5015 of 2021 D.No. 7196 of 2019]
Decided on : 23-07-2021

Advocates appeared:
For the Appellant :Milind Kumar, Balaji Srinivasan, Advocates
For the Respondent:Manish Singhvi, Sandeep Kumar Jha, Manoj Swarup, H.D. Thanvi, Neelamani Pant, Achal Singh Bule, Rishi Matoliya, Advocates

IMPORTANT POINT
Sanction for prosecution of public servant – Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, shield cannot protect corrupt officers and provisions must be construed in such a manner as to advance cause of honesty, justice and good governance.

Headnote:
(A) Criminal Procedure Code, 1973 – Section 197 – Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 3(1)(4)/3(15)/3(5) – Indian Penal Code, 1860 – Sections 420/467/468/471/120B – Sanction for prosecution of public servant – Section 197 of Cr.P.C. seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in discharge of his official duties and prohibits court from taking cognisance of such offence except with previous sanction of competent authority – Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution – At the same time, shield cannot protect corrupt officers and provisions must be construed in such a manner as to advance cause of honesty, justice and good governance – Alleged indulgence of officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty – However, such sanction is necessary if offence alleged against public servant is committed by him while acting or purporting to act in the discharge of his official duty and in order to find out whether alleged offence is committed while acting or purporting to act in discharge of his official duty, yardstick to be followed is to form a prima facie view whether act of omission for which accused was charged had a reasonable connection with discharge of his duties. (Para 9)
(B) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 3(1)(4)/3(15)/3(5) – Indian Penal Code, 1860 – Sections 420/467/468/471/120B – Criminal Procedure Code, 1973 – Section 197 – Sanction for prosecution of public servant – Cheating, forgery and conspiracy charges – Work which was assigned to Respondent No.2 pertained to subject matter of allotment, regularisation, conversion of agricultural land and fell within his domain of work – Superior officers who have dealt with file, have been granted protection while clerk, who did paper work, i.e. Respondent No.2, has been denied similar protection by trial court even though allegation is of really conspiring with his superior officers – Neither State nor complainant appealed against protection granted under Section 197 of Cr.P.C. qua these two other officers – No reason why a similar protection ought not to be granted to Respondent No.2 as was done in case of other two officials by Trial Court and High Court respectively – Sanction from competent authority would be required to take cognisance and no sanction had been obtained in respect of any of officers – It is in view thereof that in respect of other two officers, proceedings were quashed and that is what High Court has directed in present case as well – Appeals dismissed. (Paras 10, 11 and 12)
Facts of the case:
Appellant, is complainant in FIR registered under Sections 420/467/468/471/120B of IPC and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. Accused persons are, thus, alleged to have committed offences of fraudulently making a scheduled caste women, her cancer diagnosed husband and other family members homeless. Respondent No.2 herein, was not named in FIR nor in charge-sheet. High Court had opined therein that sanction under Section 197 of Cr.P.C. was required before triggering any prosecution against the Station House Officer for filing/failing to file an FIR and for other criminal acts committed during discharge of his duties. The complainant, aggrieved by the said judgment, has approached this court by filing a special leave petition. The State has also filed an SLP. Leave was granted in both the matters.
Findings of Court:
Factum of Respondent No.2 not being named in the FIR is not of much significance as the alleged role came to light later on. However, what is of significance is the role assigned to him in the alleged infraction, i.e. conspiring with his superiors.
Result : Appeals dismissed.

JUDGMENT

Sanjay Kishan Kaul, J.

Indra Devi, the appellant, is the complainant in FIR No.80 dated 23.02.2011 registered under Sections 420/467/468/471/120B of the IPC and Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act at PS. Kotwali, Distt. Barmer. It was alleged that she and her husband Bhanwar Lal purchased two plots in Khasra No.1179/03 located in Distt. Barmer. Out of these two plots, one plot was sold to one Megharam while another plot was sold to one Chetan Choudhary. In the plot purchased in the name of her husband, a residential house and shops are stated to have been made. Megharam is alleged to have tampered with and fabricated the agreement with the intention to defraud. This was allegedly done in collusion with the then executive officer of the Municipality, one Surender Kumar Mathur and "the concerned clerk and others", by enlarging the dimensions of the plot which have been sold to him with the intention to grab the land and house occupied by the complainant and her husband. The Khasra number is also alleged to have been changed from 1179/03 to 1143/04. This fact is stated to have come to the notice of the complainant only when they were served with a court notice when they were in physical possession of the plot with the house and the shop. Her husband is stated to have gone to Jaipur for treatment of cancer. The accused persons are, thus, alleged to have committed the offences of fraudulently making a scheduled caste women, her cancer diagnosed husband and other family members homeless. It may be noted that Respondent No.2 herein, Yogesh Acharya was not named in the FIR but, apparently, he is stated to be "the concerned clerk".

2. In pursuance of the investigation, a chargesheet was filed and charges were framed vide order dated 10.04.2012 against Megharam. Once again Respondent No.2 was not named in the chargesheet but a reference was made to Megharam acting in collusion with "co-accused persons".

3. The records placed before us do not reflect how Respondent No.2 was exactly roped in, but suffice to say, Respondent No.2 moved an application under Section 197 of the CrPC before the trial court stating that he was a public servant and what he did in respect of allotment of lease, that was executed in favour of Megharam, was done during the course of his official duty and thus he was entitled to protection under the aforementioned provision. He also sought to assail the chargesheet as the same had been filed without obtaining sanction of the competent authority under Section 197 of the CrPC.

4. The trial court dismissed the application vide order dated 10.08.2017, while noticing that Respondent No.2 had not been mentioned in the FIR. It was opined that it was the duty of Respondent No.2 to bring irregularities to the knowledge of the competent officers, i.e. Megharam had mentioned the wrong Khasra number in the lease but no documents of ownership of the land were produced. The trial court was of the view that had the discrepancies been brought to the knowledge of the competent officers by Respondent No.2, the disputed lease would not have been issued. The result of the failure to do so caused the forged lease to be prepared. Respondent No.2 had also drafted the disputed lease in which he failed to mention necessary details. It was, thus, opined that Respondent No.2 was liable to be prosecuted against for having committed criminal offence to procure a forged lease. What Respondent No.2 did was held not to be done by the public servant in discharge of his official duty and thus protection under Section 197 of the CrPC would not come to his aid.

5. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/2017 under Section 482 of the CrPC before the High Court of Judicature at Jodhpur assailing the said order of the trial court. The High Court, vide impugned order dated 03.10.2017, allowed the petition. It was opined that the case was similar to the one of Devi Dan

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