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CASE NO.: Appeal (crl.)  1368 of 2004

PETITIONER: Jayasingh                                                             

RESPONDENT: K.K. Velayutham & Anr.                                         

DATE OF JUDGMENT: 25/04/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

This appeal is directed against a judgment and order dated 19.11.2003  passed by the High Court of Judicature at Madras in Crl.R.C.No.1465 of  2003, whereby and whereunder the revision petition filed by the Appellant  herein against an order dated 25.8.2003 was dismissed.  The wife of the  respondent No.2 was running a kiosk in the hospital premises.  The  Government of Tamil Nadu had taken a policy decision to remove all kiosks,  bunks and tea stalls, etc. from the hospital premises as they were causing  inconvenience to the public and as food stuffs were also supplied from the  said kiosks, bunks and tea stalls which were prepared in unhygienic  conditions causing health hazards.  A Government order was issued for  removing all the said kiosks on 30.10.1987.  The Public Works Department  thereafter issued directions to the Executive Engineer to take steps for  removal thereof on or about 9.5.1996.  The Chief Engineer also directed the  Executive Engineer to take steps in furtherance of the said G.O.M.No.2055  dated 30.10.1987.  The wife of the respondent herein, who had been running  a tea stall in the said premises, was requested through a letter by the  Executive Engineer to remove the same as the Dean of Kilpauk Medical  College had made such a request in that behalf.  Admittedly, a direction was  also issued to the Appellant herein by the Executive Engineer to remove the  said tea stall.  Pursuant to or in furtherance of the said direction, the  Appellant herein requested the Assistant Commissioner of Police, Kilpauk to  give police protection for the purpose of causing such removal.   

A writ petition was filed by the wife of the respondent No.1 herein,  which was disposed of by the High Court with certain directions.  In the  meanwhile, however, the said tea stall was removed whereupon a contempt  petition was filed against the Appellant.  The said contempt petition was  dismissed.  The matter thereupon came before this Court.  This Court in N.  Jagadeesan & Ors. vs. District Collector, North Arcot & Ors. [since  reported in (1997) 4 SCC 508], opined:  

"We are of the opinion that the appellants- petitioners can have no legitimate grievance against the  action taken to remove their bunks/kiosks inasmuch as  the removal is confined only to (1) hospitals and medical  institutions and (2) road margins of main thoroughfares,  viz., three specified thoroughfares in Madras City and  one each in Vellore and Tiruppur.  The reasons given by  the State for removing them are reasonable and  acceptable.  It is also specifically averred by the State  that they are not removing any bunk with a view to allow  some other person to install a bunk in that place.  The

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removal is only for the purpose of removal of health  hazard or in the interests of smooth and unobstructed  flow of traffic.  Indeed, the Government has offered to  consider the applications, if any, made by the evicted  persons for locating them on other road margins or  premises, as the case may be."

It was further observed :

"\005\005..In our opinion, by seeking to remove the bunks  and kiosks located within the  hospital premises or within  the premises of other medical institutions or their  removal from the road margins of important and busy  thoroughfares in the aforesaid three cities in Tamil Nadu,  the respondents are not acting in any manner,  inconsistent with the propositions enunciated in the said  judgment.  We are not able to say that the reasons  assigned are neither relevant nor germane nor is it  possible to say that reasons given are only a make- believe."

The said decision was rendered by this Court on 21st February, 1997.   A Complaint Petition was filed by the respondent No.1 herein, who is the  husband of the said owner of the tea stall against the Dean of Kilpauk  Medical College and Hospital, Chennai purported to be under Sections 166,  448, 427, 380, 392 and 506(II) of the Indian Penal Code on 3rd September,  1997.  The Metropolitan Magistrate, Egmore, Chennai sent the Complaint  Petition for inquiry to the police authority whereupon a First Information  Report (FIR) was lodged.  It is not disputed that during investigation the  name of the Appellant was taken by one Thiru V. Ramarajan, Executive  Engineer, P.W.D., North Presidency Division, Chepauk, Chennai, who  alleged:

"I am working as an Executive Engineer in P.W.D.   The Kilpauk Medical College wing comes under my  jurisdiction, wherein inside the campus, Tmt. Lakshmi  Velayutham ran a tea-shop on lease agreement and as the  Dean of the Medical college did not give no objection  certificate to the Shop from 1992, the lease agreement  period was not extended.  Further the Dean of the college  wrote several letters stating that due to the tea-shop,  health hazards are caused and therefore requested to  remove the said shop.  Further, I adviced to make  arrangements to evict the shop of Tmt. Velayutham from  the college campus subject to rules.  Accordingly, the  Asst. Engineer, Thiru. R. Jayasingh, BE., MBA., P.W.D.  KMC wing, Kilpauk, Chennai-10 who was in charge of  KMC area, informed in his letter No.16K/97 dt. 2.7.97,  that he removed the shop of said Lakhsmi Velayutham on  1.7.97.  The Asst. Engineer engaged men on his own  supervision and removed the shop.  Today, 26.4.2000,  you the Inspector of G3 Kilpauk P.S. enquire me and I  narrated the above details."  

Relying on or on the basis of the said statement, the Appellant herein  was made an accused and a charge-sheet was filed by the Investigating  Officer also against him stating:

"In the said case, it was ordered that the tea-shop  which is in possession of the PW1 should be vacated  subject to Rules and Regulation.  On obtaining such court  order, A1 and A2 even after knowing the order, with the

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intention to cause loss to the complainant, on 2.7.97 at  about 11.00 a.m., A1 Thiru. Ganesan former dean of  KMC and A2 Thiru. Jayasingh, former Asst. Engineer,  PWD Kilpauk, Hospital wing with the help of some  unknown hooligans, went to the tea shop of the  complainant which was functioning inside the Kilpauk  Medical College Hopsital campus, and without taking  any legal steps as per the Court order, they trespassed the  tea\026shop and the adjoining fancy stones and removed the  refrigerator, Mixie, Stone, Biscuit which were kept for  business and A1 Thiru. Ganesan look those articles in his  custody and with the help of the hooligans, he  demolished the tea-shop built by the complainant PW1 in  his own cost which was situated in the car shed, in the  Hospital which came under A1’s jurisdiction and caused  damages to PW1 to an extent of Rs.3 Lakhs, and he  removed the aforesaid valuables belonging to PW1 with  the help of unknown persons from the car-shed inside the  campus and misappropriated the same and thereby  caused loss illegally to PW1 to an extent of Rs.4 Lakhs."

In the said charge-sheet only the allegations made in the complaint  petition were repeated.  What transpired during investigation had not been  disclosed.  The learned Magistrate took cognizance against the Appellant  herein on the basis of the said purported charge-sheet.  The Investigating  Officer noticed that removal of the tea shop was effected as per an order of a  Court of law.  Validity or otherwise of the action on the part of the appellant  is not in question.  An application for discharge was filed before the learned  Metropolitan Magistrate by the Appellant, inter alia, on the ground that no  sanction was obtained as was required mandatorily in terms of Section 197  of the Criminal Procedure Code, which plea came to be accepted by the  learned Metropolitan Magistrate by an order 25th August, 2003, opining:   

"I opine that the argument on the side of the  petitioner that the act of the petitioner was so, in order to  execute the order given to him, but the nature of the case  filed against him M/s. 166, 448, 427, 380, 392 and 506  (II) IPC are baseless, is acceptable.  Further the nature of  the act of the 2nd accused/petitioners and what offence he  committed, had not been stated in the case.  The  petitioner is a Govt. Servant.  No permission has been  obtained to prosecute him.  The procedures to be  followed u/s. 197 Cr.P.C. had not been followed in this  case."

The revision petition filed by the respondent No.1 herein before the  High Court against the said order, however, was allowed, stating:

"On a complaint given by the petitioner herein, a  case was registered against A-1 only on the specific  allegations that the bunk stall of the petitioner was  damaged and was removed, thereby causing damages to  the tune of Rs.7 lakhs.  It is pertinent to point out that the  Executive Engineer at the time of investigation, has  categorically spoken to the fact that it was A-2, who  wrote a letter to the said official that it was he who was  responsible for the removal of the bunk stall.  Under the  stated circumstances, it has become necessary for the  police agency to include the first respondent/second  accused.  This Court is at a loss to understand as to why  not the case be proceeded against A-2.  Hence, the lower  court has taken an erroneous view that there is no prima  facie case against A-2 was not mentioned.  There is no  legal impediment to add a person, if he was actually

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involved in the crime, though his name was not found in  the complaint.

The next contention as to the lack of sanction order  is concerned, the lower court can well go into the  question as to the availability of sanction and if necessary  in the instant case, it could be decided at the time of trial.   Under the stated circumstances, the order of the lower  court has got to be corrected only by upsetting the same.   The order of the lower court is set aside.  The lower court  is directed to proceed against the second accused also  along with the other accused.  This petition is ordered  accordingly."

Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the  Appellant would contend that in view of the fact that Appellant removed the  tea stall pursuant to the order passed by the Government in terms of its  policy decision, it was obligatory on the part of the prosecution to obtain  prior sanction therefor as was mandatorily required under Section 197 of the  Criminal Procedure Code.   

Mr. Subramonium Prasad, learned counsel appearing on behalf of the  State, on being questioned, very fairly submitted that apart from the  statement made by the Executive Engineer, as noticed hereinbefore, no other  material exists as against the Appellant.   

Mr. V. Krishna Murthy, learned counsel appearing on behalf of the  respondent No.1, on the other hand, would submit that from a perusal of the  charge-sheet it would be evident that the Appellant herein had caused huge  loss and damages to the respondent No.1 herein.   

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 Jagadeesan (supra).

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 the 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 provision stood  satisfied.

The statement of the Executive Engineer, on the basis whereof the  Appellant had been charge-sheeted, even if given face value and taken to be  correct in its entirety does not disclose an offence.  The respondent No.1  herein filed a complaint.  He, in view of the fact that a contempt petition was  filed against the Appellant, presumably knew him personally.  Despite the  same, he had not been named in the complaint petition.  No allegation had  been made against him either in his complaint or in his statement under

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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.    

In Matajog Dobey vs. H.C. Bhari [(1955) 2 SCR 925] a Constitution  Bench of this Court held that the provisions of Section 197 of the Criminal  Procedure Code would be attracted if 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.  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.

Whether for prosecution of a public servant sanction is necessary to  be obtained or not would depend upon the facts and circumstances of each  case.  Similarly, whether in view of the allegations made in the complaint an  order of sanction would be essential or not would again depend upon facts  and circumstances of each case.    

In  Romesh Lal Jain vs. Naginder Singh Rana & Ors.[(2006) 1  SCC 294] a Bench of this Court, of which one of us (Sinha, J. was a  member),  relying upon Matajog Dobey (supra) and various other decisions,  opined :

"The question as to whether an order of sanction  would be found essential would, thus, depend upon the  facts and circumstances of each case.  In a case where ex  facie no order of sanction has been issued when it is  admittedly a pre-requisite for taking cognizance of the  offences or where such an order apparently has been  passed by the authority not competent therefor, the court  may take note thereof at the outset.  But where the  validity or otherwise of an order of sanction is required to  be considered having regard to the facts and  circumstances of the case and furthermore when a  contention has to be gone into as to whether the act  alleged against the accused has any direct nexus with the  discharge of his official act, it may be permissible in a  given situation for the court to examine the said question  at a later stage.

We may hasten to add that we do not intend to lay  down a law that only because a contention has been  raised by the complainant or the prosecution that the  question as regard necessity of obtaining an order of  sanction is dependent upon the finding of fact that the  nexus between the offences alleged and the official duty  will have to be found out upon analysing the evidences  brought on record; the same cannot be done at an earlier  stage.  What we intend to say is that each case will have  to be considered having regard to the fact situation  obtaining therein and no hard and fast rule can be laid  down therefor."

It was held therein that the question as to whether sanction is  necessary or not that may be appropriately raised at different stages of the  stage depending upon the allegations made in the complaint.

Yet again, in Rakesh Kumar Mishra vs. State of Bihar & Ors.  [(2006) 1 SCC 557], this Court held:

"Use of the expression "official duty" implies that

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the act or omission must have been done by the public  servant in the course of his service and that it should have  been in discharge of his duty.  The section does not  extend its protective cover to every act or omission done  by a public servant in service but restricts its scope of  operation to only those acts or omissions which are done  by a public servant in discharge of official duty. It has been widened further by extending  protection to even those acts or omissions which are done  in purported exercise of official duty; that is under the  colour of office.  Official duty, therefore, implies that the  act or omission must have been done by the public  servant in the course of his service and such act or  omission must have been performed as part of duty  which further must have been official in nature.  The  section has, thus, to be construed strictly, while  determining its applicability to any act or omission in the  course of service.  Its operation has to be limited to those  duties which are discharged in the course of duty.  But  once any act or omission has been found to have been  committed by a public servant in the discharge of his  duty then it must be given liberal and wide construction  so far its official nature is concerned.  For instance a  public servant is not entitled to indulge in criminal  activities.  To that extent the section has to be construed  narrowly and in a restricted manner.  But once it is  established that an act or omission was done by the  public servant while discharging his duty then the scope  of its being official should be construed so as to advance  the objective of the section in favour of the public  servant.  Otherwise the entire purpose of affording  protection to a public servant without sanction shall stand  frustrated.  For instance a police officer in the discharge  of duty may have to use force which may be an offence  for the prosecution of which the sanction may be  necessary.  But if the same officer commits an act in the  course of service but not in the discharge of his duty and  without any justification therefor then the bar under  Section 197 of the Code is not attracted. ..\005. 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."  

[See Sankaran Moitra vs. Sadhna Das & Anr. (JT 2006 (4) SC 34.]

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.   The appeal is allowed accordingly.