1. Heard Sri H.R. Shukla, learned counsel for the revisionist and learned Additional Government Advocate for the State.
2. The order under challenge is the judgment and order dated 22.03.2002 passed by the learned Additional Chief Judicial Magistrate (Railways), Gonda, in Criminal Case No.32/88, bearing Crime No.19/87, under Section 409 I.P.C. Police Station-G.R.P. Gonda, District Gonda, whereby the revisionist has been convicted and sentenced two years rigorous imprisonment along with fine of Rs.2,000/- for the offence punishable under Section 409 I.P.C., failing to deposit the fine, two months simple imprisonment was also awarded to the revisionist.
3. The revisionist has also assailed the order dated 31.10.2003 passed by the learned Additional Session Judge (FTC-III), Gonda, in Criminal Appeal No.34/2002 rejecting the appeal of the revisionist upholding the order dated 22.03.2002 passed by learned trial court.
4. At the outset, it is noted that this Court vide order dated 06.10.2017 was pleased to pass the following order, which reads as under:-
"1. At the time of perusing the record for dictating the judgment, I found that the accused-revisionist was convicted and sentenced under section 409 IPC. Allegedly, he committed the offence in the capacity of a public servant.
2. Plea of sanction under section 197 CrPC for prosecution has not been taken before the learned Magistrate or the appellate court or even before this Court but it is a legal plea which can be looked into by the Court suo-motu. Hence, in the circumstances judgment is not being delivered, rather an opportunity of hearing is being given to the accused-revisionist as well as to learned A.G.A. to address the Court on the plea of sanction under section 197 CrPC.
3. Since roster is changed, hence, this matter should not be treated as tied up with this bench.
4. List before appropriate Court in the third week of October 2017."
5. By means of the aforesaid order, this Court was pleased to observe that the offence under Section 409 Cr.P.C., for which the revisionist was convicted and sentenced, was committed in a capacity of public servant i.e. Assistant Guard and mandatory requirements of sanction under Section 197 Cr.P.C. for prosecution has not been sought, however, this plea was not taken before the court of Magistrate or before the Appellate court. This Court was of the view that since it is a legal plea, therefore, this Court can look into this point suo motu, for which the opportunity of hearing was provided to the learned counsel for the revisionist/accused and to the learned A.G.A. to address the Court on the plea of sanction under Section 197 Cr.P.C.
Section 197 of the 'Code', which is extracted hereunder:-
"197. Prosecution of Judges and public servants.
(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 (save as otherwise provided in the Lokpal and Lokayuiktas Act, 2013).
(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:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.
xxx xxx xxx (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
6. A perusal of the records reveal that the mandatory requirements of Section 197 Cr.P.C. has not been followed, therefore, the order of trial court, which was passed without taking into note, the mandatory requirement of Section 197 Cr.P.C., vitiates and accordingly the appellate order may not be said to be justifiable order inasmuch as the aforesaid legal point was not considered by the trial court nor by the appellate court while rejecting the appeal of the present revisionist.
7. Section 197 Cr.P.C. categorically provides that when any person who is or was a Judge or Magistrate or a Public Servant not removable from his office save by or with sanction of Government is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction by the Competent Authority.
8. A bare perusal of the aforesaid Section reveals that the protection available under Section 197 Cr.P.C. is available only when the alleged Act done by the Public Servant in reasonably connected with the discharge of his official duty.
9. The protection given under Section 197 Cr.P.C. is to protect the responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The Hon'ble Apex Court in re: State of Orissa vs. Ganesh Chandra Jew reported in (2004) 8 SCC 40 has observed that one safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit to act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer of this question is in affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.
10. If the prosecution story is believed to be true that one of the parcels out of total 85 parcels, there was less quantity when those parcels unloaded, the departmental responsibility could have been fastened upon the revisionist and the departmental inquiry could have been initiated for the charge of negligence and dereliction of his official duty and he could have accordingly been compelled to face departmental trial. Therefore, in view of the above the act complained of against the revisionist would be said to be an act committed while discharging his official duty.
11. The Hon'ble Apex Court in re: S.K. Zutshi and ors. vs. Bimal Debnath and ors. reported in (2004) 8 SCC 31 has observed in para-7 of the judgment that so far public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The sanction not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance it means 'taking notice of'. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.
12. The perusal thereof reveals that in the instant case the revisionist is also protected under Section 197 Cr.P.C. from the prosecution without sanction of the competent authority.
13. The Hon'ble Apex Court in re: Amal Kumar Jha vs. State of Chhatisgarh and ors reported in (2016) 6 SCC 734 considering the dictum of Hon'ble Apex Court in re: Ganesh Chandra Jew (supra) and some other cases of Ho'ble Apex Court has held in para-14 that the public servant shall be protected under Section 197 Cr.P.C. from prosecution if sanction has not been sought from the competent authority. In the aforesaid case, the Hon'ble Apex Court was of the view that the public servant of that case was discharging his official duty when omission complained of was committed. The operative portion of the judgment of Hon'ble Apex Court, vide para-14 thereof, is being reproduced here-in-below:-
"14. In view of the aforesaid discussion, it is clear that the omission complained of due to which offence is stated to have been committed, was intrinsically connected with discharge of official duty of the Appellant, as such the protection under Section 197 Code of Criminal Procedure from prosecution without sanction of the competent authority, is available to the Appellant. Thus, he could not have been prosecuted without sanction. It would be for the competent authority to consider the question of grant of sanction in accordance with law. In case sanction is granted only then the Appellant can be prosecuted and not otherwise. Resultantly, the impugned orders are set aside, the appeal is allowed."
14. In the instant case, while discharging his public duty i.e. Assistant Guard, the revisionist was assigned/handed over some articles of certain weights and the said article was found less in quantity when the same was received, as per the prosecution story.
15. Thus, the fact of the case reveals that when the alleged offence was committed by the revisionist, he was discharging public duty.
16. In the light of settled proposition of law by the Hon'ble Apex Court as discussed above, absence of sanction by the appropriate authority under Section 197 Cr.P.C. for prosecuting a public servant, vitiates the proceedings initiated against him.
17. It has been noted in this case that when the present revision was filed, the revisionist was aged about 70 years and presently he should be more than 85 years of age.
18. Since the present revisionist has been prosecuted without following the mandatory compliance of Section 197 Cr.P.C., therefore, the case of prosecution vitiates and accordingly, orders of learned trial court dated 22.03.2002 and learned appellate court order dated 31.10.2003, are not sustainable in the eyes of law and accordingly those orders are liable to be set aside.
19. Since this Court has dealt with legal proposition so raised by this Court vide order dated 06.10.2017 (supra), therefore, the veracity of the orders of learned trial court as well as the learned Appellate Court has not been examined whereby the learned trial court has convicted the revisionist and the learned Appellate Court has upheld the order of learned trial court. Admittedly, the factum of mandatory compliance of Section 197 Cr.P.C. has not been dealt with by both the learned courts below, therefore, this revision is being decided on the aforesaid point alone.
20. It is also noted that the present revisionist is a very old person aged about more than 85 years and he and his entire family is absolutely depend upon his post retiral benefits for survival, therefore, it may not be desirable at this stage that the direction for seeking sanction under Section 197 Cr.P.C. to prosecute the present revisionist be issued.
21. Therefore in view of the above, the present revision deserves to be allowed and is allowed accordingly. The order dated 22.03.2002 passed by the learned trial court and the order dated 31.10.2003 passed by the appellate court are hereby set aside.
22. The lower court record be remitted back along with a certified copy of this judgment to the learned Trial Court within a month from today.
23. No order as to cost.
Order Date :- 21.8.2018 amit [Rajesh Singh Chauhan,J.]