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IN THE HIGH COURT OF SIKKIM, GANGTOK
BHASKAR RAJ PRADHAN, J.
Mr. Shrish Khare, S/o Shri Girish Khare - Appellant
Versus
Mr. C. B. Basnett, S/o late Ranjit Basnet - Respondent
Crl. M.C. No. 15 of 2017
Decided on : 18-09-2018
CRIMINAL PROCEDURE CODE - SECTION 197 - SANCTION FOR PROSECUTION OF PUBLIC SERVANT - SCOPE AND APPLICABILITY - DISTINCTION BETWEEN DISMISSAL AND QUASHING OF COMPLAINT - INHERENT POWERS OF HIGH COURT UNDER SECTION 482 CR.P.C. - SCOPE AND LIMITATIONS - INTERPRETATION OF STATUTORY PROVISIONS - PRINCIPLES OF NATURAL JUSTICE AND FAIR HEARING.
Fact of the Case:
The Petitioner, a public servant, filed a complaint against the Respondent Nos. 1 and 2, also public servants, alleging that they had committed various offenses, including criminal conspiracy, fabrication of records, and misappropriation of public funds, while acting in their official capacities. The Chief Judicial Magistrate took cognizance of the complaint and issued summons to the Respondent Nos. 1 and 2. However, upon an application filed by the Respondent Nos. 1 and 2, the Chief Judicial Magistrate quashed the complaint on the ground that sanction for prosecution under Section 197 of the Code of Criminal Procedure (Cr.P.C.) had not been obtained. The Petitioner challenged this order before the Sessions Court, which upheld the order of the Chief Judicial Magistrate. The Petitioner then filed a petition under Section 482 Cr.P.C. in the High Court, seeking to invoke the inherent powers of the Court to quash the impugned orders and direct the prosecution of the Respondent Nos. 1 and 2.
Finding of the Court:
The High Court held that the impugned orders of the Chief Judicial Magistrate and the Sessions Court were not sustainable in law. The Court observed that the Chief Judicial Magistrate had erred in quashing the complaint instead of dismissing it, as the distinction between dismissal and quashing is fundamental. Dismissal implies termination without further hearing, while quashing means to annul or make void. The Court further held that the Chief Judicial Magistrate had the power and jurisdiction to discharge the Respondent Nos. 1 and 2 under the provision of Section 245(2) Cr.P.C. even before the taking of the evidence of the prosecution. The Court also held that the allegations in the complaint, if proved, would not fall within the ambit of Section 197 Cr.P.C., which mandates that no Court shall take cognizance of an offense alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty without the previous sanction of the Government. The Court concluded that the Respondent Nos. 1 and 2 were not entitled to the protection under Section 197 Cr.P.C. and that the complaint should be proceeded with in accordance with law.
Issues: 1. Whether the Chief Judicial Magistrate erred in quashing the complaint instead of dismissing it? 2. Whether the Chief Judicial Magistrate had the power and jurisdiction to discharge the Respondent Nos. 1 and 2 under the provision of Section 245(2) Cr.P.C. even before the taking of the evidence of the prosecution? 3. Whether the allegations in the complaint, if proved, would fall within the ambit of Section 197 Cr.P.C., which mandates that no Court shall take cognizance of an offense alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty without the previous sanction of the Government?
Ratio Decidendi: 1. The distinction between dismissal and quashing is fundamental. Dismissal implies termination without further hearing, while quashing means to annul or make void. 2. The Chief Judicial Magistrate had the power and jurisdiction to discharge the Respondent Nos. 1 and 2 under the provision of Section 245(2) Cr.P.C. even before the taking of the evidence of the prosecution. 3. The allegations in the complaint, if proved, would not fall within the ambit of Section 197 Cr.P.C., which mandates that no Court shall take cognizance of an offense alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duty without the previous sanction of the Government.
Final Decision: The High Court allowed the petition under Section 482 Cr.P.C., quashed the impugned orders of the Chief Judicial Magistrate and the Sessions Court, and directed the Chief Judicial Magistrate to proceed with the complaint in accordance with law.
JUDGMENT :
Bhaskar Raj Pradhan, J
1. The Petitioner seeks to invoke the inherent powers of this Court to challenged the impugned order dated 29.08.2016 passed by the learned Sessions Judge, South Sikkim at Namchi in Criminal Revision Case No. 5 of 2016 as well as the order dated 25.10.2016 passed by the learned Chief Judicial Magistrate South Sikkim at Namchi in Private Complaint Case No.03 of 2016.
2. A preliminary issue raised by Mr. N. Rai, learned Senior Advocate for the Respondent regarding the scope of Section 482 Code of Criminal Procedure, 1973 (Cr.P.C.) must necessarily be noted before examining the merits of the case. Relying upon the judgment of the Supreme Court in re: Ganesh Narayan Hegde v. S. Bangarappa & ors., 1995 CRI L.J. 2935 he would emphasise upon paragraph 12 quoted below and submit that:
“12. While it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a second revisional court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interest of justice otherwise call for quashing of the charges. …….”
3. The impugned order dated 29.08.2017 passed by the Sessions Judge would decline to interfere with the order dated 25.10.2016 passed by the learned Chief Judicial Magistrate by which the Criminal Complaint preferred by the Petitioner was “quashed” on the ground that sanction as required under Section 197 Cr.P.C. had not been obtained by the Petitioner for prosecuting the Respondents who are police officers.
4. At the outset Mr. N. Rai would draw attention to paragraph 10 of the impugned order dated 29.08.2017 passed by the learned Sessions Judge in which it has been recorded that while concluding the arguments learned Counsel for the Petitioner submitted that he did not intend to press the revision against the Respondent No.2. Dr. Doma T. Bhutia, learned Counsel for the Petitioner would fairly concede and submit that, therefore, she would press the present petition only against the Respondent No.1. The Respondent No.1, it is urged, at the relevant time was the Station House Officer (SHO) of the Namchi Police Station.
5. On the strength of First Information Report (FIR) filed by one Smt. Rita Pradhan (accused no.3) on 31.12.2012 at about 1250 hrs at the Namchi Police Station against the Petitioner a criminal prosecution case would be launched against the Petitioner. After the judgment rendered by the Court of the Judicial Magistrate dated 30.05.2014 holding that the prosecution had failed to produce any evidence against the Petitioner to establish his guilt under Section 324 and 509 Indian Penal Code, 1860 (IPC) beyond reasonable doubt he would be acquitted. Thereafter, a Criminal Complaint would be filed on 25.05.2016 by the Petitioner. The Criminal Complaint would array the Respondent No. 1 and 2 and accused no. 3 as the accused persons and seek conviction against the Respondent Nos. 1 and 2 under Section 220/120B/500/34 IPC.
6. On examination of the complaint the learned Chief Judicial Magistrate vide order dated 05.08.2016 would take cognizance of the offences under Section 220/120B/500/34 IPC against the Respondent Nos. 1 and 2 and under Section 120B/500/34 IPC against the Respondent No.3 and issue summons to them. On 04.10.2016 after the Respondents would appear before the Court the order of the learned Chief Judicial Magistrate would record that the learned Counsel for the Respondent Nos.1 and 2 had submitted that sanction was required under Section 197 Cr.P.C. as he was merely doing his duty as a pu
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