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PETITIONER: ABDUL WAHAB ANSARI

       Vs.

RESPONDENT: STATE OF BIHAR & ANR.

DATE OF JUDGMENT:       17/10/2000

BENCH: G.B.Pattanaik, M.B.Shah, S.N.Phukan

JUDGMENT:

PATTANAIK,J. L.....I.........T.......T.......T.......T.......T.......T..J

     Leave Granted.

     The  appellant  is a public servant and on  26.4.1993, the  Sub Divisional Magistrate asked for an explanation from him  as  to  why the encroachment in question is  not  being removed  notwithstanding  the direction of the  High  Court. The  said  Sub Divisional Magistrate by order dated 25th  of June, 1993, appointed the appellant as a Duty Magistrate and one  Shri Vinod Pal Singh as Senior In-charge Magistrate  of the   Police  Force,  who  were   required  to  remove   the encroachment  in  question.  The said appellant visited  the encroachment  site and requested the encroachers for removal of  encroachment  and  on 16.7.1993 was able to  remove  the encroachment  partially  and reported the said fact  to  his senior  officer, but on 17.7.1993, when the appellant  along with  armed  force, reached the encroachment  site,  several miscreants  armed with weapons, started hurling stone and as the  situation  became  out  of control,  after  giving  due warning,  the  appellant  was compelled to  give  order  for opening  fire  and  dispersed the mob.  On account  of  such firing,  one of the persons died and two others were injured and  the appellant then sent a report to his senior  officer about  the  incident.   The  son of  the  deceased,  who  is respondent  No.   2,  filed  a complaint  before  the  Chief Judicial  Magistrate, alleging commission of offence by  the appellant  under Sections 302, 307, 380, 427, 504, 147,  148 and  149  IPC  as well as Section 27 of the Arms  Act.   The Chief  Judicial  Magistrate by his order  dated  24.11.1995, came  to  the conclusion that there is  sufficient  evidence available  to establish that prima facie case under Sections 302,  307,  147,  148, 149 and 380 is made out  against  the accused and, therefore, he directed issuance of non-bailable warrants  against  the appellant and other accused  persons. The  Chief Judicial Magistrate was also of the opinion  that the  provisions  of  Section  197 of the  Code  of  Criminal Procedure will have no application to the facts of the case. The appellant then moved the High Court under Section 482 of the  Code of Criminal Procedure, praying inter alia that  no cognizance  could  be  taken  without   a  sanction  of  the appropriate Government, as required under sub-section (2) of Section  197  of  the Code of Criminal Procedure,  when  the

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appellant  was discharging his official duty pursuant to  an order  of the Competent Authority.  The High Court,  however without going into the merits of the matter and being of the opinion  that all the questions may be raised at the time of framing  of charge, disposed of the application filed by the appellant  and  hence the present appeal in this Court.   It may  be stated that there was a dispute between two sets  of Mohammedan  residents, one set complaining against the other about  the  encroachment  of the property belonging  to  the mosque  and  the appellant as the Circle Inspector,  on  the basis of the said complaint had inquired into the matter and on  the  basis  of a detailed inquiry, a  finding  had  been arrived  at, that the situation at the site was volatile for which  on  27th  of  March, 1991, order  under  Section  144 Cr.P.C.  had been promulgated.  Thereafter the appellant had made  several requests to the encroachers for removal of the encroachment  and ultimately the Sub Divisional  Magistrate, Aurangabad  by his order dated 25th of June, 1993, appointed the  appellant as Duty Magistrate for use of Police Force to remove  encroachment  in question.  When the present  appeal had  been listed before us, a judgment of this Court in  the case  of Birendra K.  Singh vs.  State of Bihar, reported in JT  2000(8)  SC  248, had been placed before us and  it  was contended   that  the  question  of  applicability  of   the provisions  of  Section  197 Cr.P.C.  can be raised  at  the stage  of  framing  of charge and, therefore,  the  impugned order of the High Court does not require any interference by this  Court.   The aforesaid decision no doubt supports  the contention  of  the  learned   counsel,  appearing  for  the respondent  to  a  great  extent   but  as  we  doubted  the correctness of the aforesaid ennunciation of law, the matter had  been referred to a Three Judge Bench and that is how we are in session of the matter.

     The  learned  counsel  appearing   for  the  appellant contended  before  us that on the plain language of  Section 197  of  the Code of Criminal Procedure, when the  Court  is debarred  from taking cognizance of the offence except  with the  previous sanction of the competent authority, if it  is established  that the offence alleged had been committed  by him  while  acting or purporting to act in discharge of  his official  duty, there is no justification for the accused to wait  till the stage of framing of charge is reached and the High  Court,  therefore was in error in not  exercising  the jurisdiction  vested in law.  On the facts of the case,  the learned  counsel submitted that the appellant being  present at  the  place  of occurrence pursuant to an  order  of  the Magistrate  with the Police Force and was required to remove the  encroachment in question and he ordered for firing when the  situation  went out of control, while  discharging  the duty of removal of encroachment and pursuant to such firing, a person died and two persons were injured, the irresistible conclusion  is  that the use of police force related to  the performance  of the official duty of the accused  appellant, within  the  meaning of Section 197 of the Code of  Criminal Procedure  and  consequently, without prior sanction of  the competent   authority,  the  Court   could  not  have  taken cognizance  of  the  offence  on  the  basis  of  a  private complaint.

     Mr.   S.K.   Sinha, the learned counsel appearing  for the  complainant-respondent  as well as Mr.  B.B.Singh,  the learned  counsel  appearing for the State of  Bihar,  fairly stated  that  the  judgment  of this Court  in  Birendra  K. Singhs  case  has  been too widely stated and there  is  no

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requirement  for  the  accused  to wait till  the  stage  of framing  of the charge is reached for raising the contention with  regard to the applicability of Section 197 of the Code of  Criminal Procedure.  So far as the applicability of  the provisions  of Section 197 of the Code of Criminal Procedure is  concerned, in the facts and circumstances of the present case,  though  Mr.  B.B.  Singh, appearing for the State  of Bihar  submitted that the gravamen of the allegation made in the  complaint unequivocally indicate that the appellant was discharging  his official duty when he directed for  opening of fire to control the mob and, therefore, the provisions of Section  197 of the Code of Criminal Procedure would  apply. Mr.    Sinha,   the  learned   counsel  appearing  for   the complainant-respondent  on the other hand contended that the act  complained  of  cannot be held to be  in  discharge  of official duty of the appellant and, therefore the provisions of  Section 197 of the Code of Criminal Procedure will  have no application.

     In  view  of  the rival submissions at  the  Bar,  two questions  arise  for our consideration:  1.   Assuming  the provisions  of Section 197 of the Code of Criminal Procedure applies,  at what stage the accused can take such plea?   Is it  immediately after the cognizance is taken and process is issued  or  it is only when the Court reaches the  stage  of framing  of  charge  as held by this Court  in  Birendra  K. Singhs case.  ?  2.  Whether in the facts and circumstances of the present case, is it possible for the Court to come to a conclusion that the appellant was discharging his official duty  and  in course of such discharge of duty, ordered  for opening of fire to control the mob in consequence of which a person died and two persons were injured and in which event, the  provisions  of  Section  197 of the  Code  of  Criminal Procedure can be held to be attracted?

     So  far as the first question is concerned, on a plain reading  of  the provisions of Section 197 makes it  crystal clear that the Court is prohibited from taking cognizance of the  offence  except  with  the  previous  sanction  of  the competent authority.  For a better appreciation of the point in issue, Section 197(1) is quoted herein- below in extenso:

     Section  197(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- (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.

     Previous  sanction of the competent authority being  a pre-  condition  for the Court in taking cognizance  of  the offence if the offence alleged to have been committed by the accused  can  be  said  to be an act  in  discharge  of  his official  duty, the question touches the jurisdiction of the Magistrate   in  the  matter  of  taking   cognizance   and, therefore,  there  is no requirement that an accused  should

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wait  for taking such plea till the charges are framed.   In Suresh  Kumar Bhikamchand Jain vs.  Pandey Ajay Bhushan  and Ors.,  1998(1)  SCC,  205,  a similar  contention  had  been advanced   by  Mr.   Sibbal,   the  learned  senior  counsel appearing  for  the appellants in that case.  In that  case, the  High  Court had held on the application of the  accused that   the  provisions  of   Section  197  gets   attracted. Rejecting the contention, this court had observed:

     The  legislative mandate engrafted in sub-section (1) of  Section 197 debarring a court from taking cognizance  of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to  have been committed by a public servant in discharge  of his  official  duty or purporting to be in the discharge  of his  official duty and such public servant is not  removable from  his  office  save  by  or with  the  sanction  of  the Government touches the jurisdiction of the court itself.  It is  a  prohibition  imposed  by   the  statute  from  taking cognizance,  the accused after appearing before the Court on process  being  issued,  by an application  indicating  that Section  197(1)  is  attracted merely assists the  court  to rectify  its  error  where jurisdiction has  been  exercised which  it does not possess.  In such a case there should not be  any bar for the accused producing the relevant documents and  materials  which  will be ipso  facto  admissible,  for adjudication  of the question as to whether in fact  Section 197  has  any  application in the case in hand.   It  is  no longer  in  dispute and has been indicated by this Court  in several  cases  that  the  question   of  sanction  can   be considered at any stage of the proceedings."

     The Court had further observed:

     The  question of applicability of Section 197 of  the Code  and  the consequential ouster of jurisdiction  of  the court  to  take  cognizance  without  a  valid  sanction  is genetically  different from the plea of the accused that the averments in the complaint do not make out an offence and as such the order of cognizance and/or the criminal proceedings be  quashed.   In  the  aforesaid premises  we  are  of  the considered  opinion  that  an accused is not  debarred  from producing  the  relevant documentary materials which can  be legally  looked into without any formal proof, in support of the  stand  that  the acts complained of were  committed  in exercise  of his jurisdiction or purported jurisdiction as a public  servant  in discharge of his official  duty  thereby requiring sanction of the appropriate authority.

     In  the case of Ashok Sahu vs.  Gokul Saikia and  Anr. 1990  (Supp.)  SCC  41,  this court had said  that  want  of sanction  under  Section  197 of the Code is  a  prohibition against   institution   of   the    proceedings,   and   the applicability  of the Section must be judged at the earliest stage  of  the  proceedings  and in  that  case,  the  Court directed the Magistrate to consider the question of sanction before  framing a charge.  In yet another case, in the  case of  P.   Saha and ors.  Vs.  M.S.Kochar, 1979(4) SCC 177,  a three  Judge Bench of this Court had held that the  question of  sanction  under Section 197 Cr.P.C.  can be  raised  and considered  at  any stage of the proceedings and further  in considering  the  question  whether  or  not  sanction   for prosecution  was required, it is not necessary for the Court to  confine itself to the allegations in the complaint,  and it  can take into account all the material on the record  at

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the  time  when  the  question  is  raised  and  falls   for consideration.   This  being  the position, we  are  of  the considered  opinion  that  the  decision of  this  Court  in Birendra  K.  Singhs case JT 2000 (8) SC 248, does not  lay down  the correct law by directing that the objection on the question  of sanction can be raised at the stage of  framing of charge and not at any prior point of time.

     Coming  to the second question, it is now well settled by  the Constitution Bench decision of this Court in Matajog Dobey vs.  H.C.  Bhari, 1955 (2) SCR 925, that in the matter of  grant  of  sanction  under Section 197 of  the  Code  of Criminal   Procedure  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.  In other words, 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.   In the said case it had been further held  that where  a power is conferred or a duty imposed by statute  or otherwise,  and  there is nothing said expressly  inhibiting the  exercise of the power or the performance of the duty by any  limitations  or restrictions, it is reasonable to  hold that  it carries with it the power of doing all such acts or employing  such  means as are reasonably necessary for  such execution, because it is a rule that when the law commands a thing  to be done, it authorises the performance of whatever may  be necessary for executing its command.  This  decision was  followed  by  this Court in  Suresh  Kumar  Bhikamchand Jains  case,  1998(1) SCC 205, and in a recent judgment  of this Court in the case of Gauri Shankar Prasad vs.  State of Bihar  and  Anr., 2000 (5) SCC 15.  The aforesaid  case  has full force even to the facts of the present case inasmuch as in the said case, the Court had observed:

     It  is manifest that the appellant was present at the place  of  occurrence  in  his  official  capacity  as  Sub- Divisional   Magistrate  for  the   purpose  of  removal  of encroachment  from  government land and in exercise of  such duty,  he  is alleged to have committed the acts which  form the  gravamen of the allegations contained in the  complaint lodged  by the respondent.  In such circumstances, it cannot but  be  held that the acts complained of by the  respondent against  the  appellant  have a reasonable  nexus  with  the official duty of the appellant.  It follows, therefore, that the  appellant  is  entitled to the immunity  from  criminal proceedings  without  sanction  provided under  Section  197 Cr.P.C.

     It  is not necessary for us to multiply authorities on this  point  and bearing in mind the ratio of the  aforesaid cases and applying the same to the facts of the present case as  indicated in the complaint itself, we have no hesitation to  come  to  the  conclusion that the  appellant  had  been directed by the Sub-Divisional Magistrate to be present with police  force and remove the encroachment in question and in course  of discharge of his duty to control the mob, when he had  directed for opening of fire, it must be held that  the order  of  opening  of  fire was in exercise  of  the  power conferred  upon him and the duty imposed upon him under  the orders  of the Magistrate and in that view of the matter the provisions  of  Section 197(1) applies to the facts  of  the present  case.   Admittedly,  there being no  sanction,  the

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cognizance  taken by the Magistrate is bad in law and unless the  same is quashed qua the appellant, it will be an  abuse of  the process of Court.  Accordingly, we allow this appeal and  quash the criminal proceeding, so far as the  appellant is concerned.