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N. Brahmeswararao Vs. the Sub Inspector of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ1005
AppellantN. Brahmeswararao
RespondentThe Sub Inspector of Police and ors.
Excerpt:
.....for the appellant contends that the allegations in the complaint petition disclose not only an offence punishable under section 5 of the prevention of corruption act but also offences punishable under sections 343 and 347 of the indian penal code and that it is perfectly open to the complainant to prosecute the respondents for the offences punishable under sections 341 and 347 i. state of bihar 1971crilj1266 .4. the law is well-settled that when the facts alleged in a complaint petition disclose primarily an offence to prosecute to which a sanction is necessary, it would not be open to the prosecutor to evade the requirement of sanction by any camouflage or device so as to prosecute the offender under some other section of law not requiring a sanction. it is also well-settled that..........for the appellant contends that the allegations in the complaint petition disclose not only an offence punishable under section 5 of the prevention of corruption act but also offences punishable under sections 343 and 347 of the indian penal code and that it is perfectly open to the complainant to prosecute the respondents for the offences punishable under sections 341 and 347 i.p.c. without any previous sanction. it is argued that the question of previous sanction arises only if the complainant seeks to prosecute the accused for the offence under section 5 of the prevention of corruption act. in support of his submission he relies on baijnath v. state of m.p. : 1966crilj179 , durgacharan v. state of orissa : 1966crilj1491 and govind mehta v. state of bihar : 1971crilj1266 .4. the.....
Judgment:

Madhusudan Rao, J.

1. This appeal is directed against the order passed by the learned Judicial Second Class Magistrate, Vinukonda in Crl. M. P. No. 86 of 77 in C. C. No. 62 of 77 on the file of his court. The appellant filed a complaint under Sections 343 and 347 I.P.C. against the respondents who are police officers. At the commencement of the trial, the respondents filed the Crl. M. P. 86 of 77 objecting to the trial of the case on the ground that the court should not have taken cognizance of the offences except with the previous sanction of the concerned authority as required under Section 6(1)(c) of the Prevention of Corruption Act. After due consideration of the objection raised by the respondents, the Magistrate allowed the petition and declined to proceed with the case any further.

2. In allowing the petition, the learned Magistrate observed as follows:

The facts of the complaint petition as a whole, as well as the concluding allegation against the accused will certainly reveal the fact that the accused allegedly confined two persons in police lockup and demanded illegal gratification of about five sovereigns of gold for their release when the complainant and his list witnesses approached the police. Therefore, ends will justify the means. In such circumstances, it is evident that the accused made a demand of illegal gratification as revealed from the facts of the complaint petition. It is also not the case of the complainant that the accused detained in the said two persons wrongfully to recover the stolen property but only to extort some illegal gratification.

So much so, the main offence, according to the facts of the complaint petition, will only attract Section 5 of the Prevention of Corruption Act as urged by the learned defence counsel and therefore Section 6(1)(c) of the said Act is attracted.

3. Sri E, V. Bhagiratharao, the learned Counsel for the appellant contends that the allegations in the complaint petition disclose not only an offence punishable under Section 5 of the Prevention of Corruption Act but also offences punishable under Sections 343 and 347 of the Indian Penal Code and that it is perfectly open to the complainant to prosecute the respondents for the offences punishable under Sections 341 and 347 I.P.C. without any previous sanction. It is argued that the question of previous sanction arises only if the complainant seeks to prosecute the accused for the offence under Section 5 of the Prevention of Corruption Act. In support of his submission he relies on Baijnath v. State of M.P. : 1966CriLJ179 , Durgacharan v. State of Orissa : 1966CriLJ1491 and Govind Mehta v. State of Bihar : 1971CriLJ1266 .

4. The law is well-settled that when the facts alleged in a complaint petition disclose primarily an offence to prosecute to which a sanction is necessary, it would not be open to the prosecutor to evade the requirement of sanction by any camouflage or device so as to prosecute the offender under some other Section of law not requiring a sanction. It is also well-settled that when a person commits several offences in the course of the same transaction and if the more serious offence requires a previous sanction or a special complaint, it would not be open to the prosecution to ignore the serious charge and prosecute the offender for the less serious charges which do not require a special complaint or previous sanction.

5. In Baijnath's case (1966 Cri LJ 179) (SC). Their Lordships of the Supreme Court held that no sanction under Section 197(1) Cr. P.C. was necessary for the prosecution of the accused for the offence under Section 409 I.P.C. even though the accused committed an offence punishable under Section 477A read with with Sections 109 I.P.C. and 409 I.P.C. in so far as the action of the accused under Section 409 I.P.C. could not be deemed to have been committed by the accused-public servant while acting in the discharge of his official duty. Section 477A read with 109 I, P. C. in respect of which sanction was necessary under Section 197 Cr. P.C. is a minor offence when compared with the offence punishable under Section 409 I.P.C. In Durgacharan's case (1966 Cri LJ 1043) (SC) the Supreme Court pointed out that the prosecution of the accused under Section 353 I.P.C. is not invalid though his prosecution under Section 186 I.P.C. is invalid for want of the necessary sanction is so far as the offence under Section 186 I.P.C. is far less grave than the offence under Section 353 I.P.C. The same principle was applied even in the case of Govind Mehta (1971 Cri LJ 1266) (SC).

6. In S. Dutt v. State of U.P. : 1966CriLJ459 . Their Lordships of the Supreme Court have clearly pointed out as follows in para 16 of the judgment.

In this connection we may again recall the words of this Court which were put in the forefront by Mr. Chari that it is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure under Section 195 of the Code of Criminal Procedure. If the offence was under Section 196, Indian Penal Code, a complaint in writing by the Court concerned was required. Before a complaint is made the Court has to consider whether it is expedient in the interests of justice to order a prosecution. In the lesser offence no such complaint by the Court is necessary and it is obvious that the lesser offence was chosen to bypass the Sessions Judge who had earlier decided that Dr. Dutt should not be prosecuted for perjury. Such a device is not to be commended....

7. In the instant case, the offence under Section 5(2) of the Prevention of Corruption Act is a more serious offence than the offences under Sections 343 and 347 I.P.C. The allegations in the complaint essentially and substantially disclose an offence punishable under Section 5(2) of the Prevention of Corruption Act. The Prosecution should co-ordinarily be for the graver offence punishable under Section 5(2) of the Prevention of Corruption Act and not merely for the minor offences under Sections 343 and 347 I. P. C, In Re Govindaswami : AIR1954Mad401 , a question arose whether when a person commits offences punishable under Section 5(2) of the Prevention of Corruption Act and also under Section 409 of the Penal Code, it was open to the prosecution to prosecute the offender for the offence under Section 5(2) of the Prevention of Corruption Act. The question was answered in the affirmative on the ground that the offence under Section 409, I P. C. is graver than the offence under Section 5(2) of the Prevention of Corruption Act. It was observed as follows in that case (At p. 402 of AIR) : (at p. 480 of Cri LJ).

Apart from this, as pointed out in Dholiah v. Sub Inspector of Police, Welington Station AIR 1913 Mad. 702 at p. 703 2 : 32 Cri LJ 1215 when a complaint sets forth certain facts disclosing a minor offence and also a grave offence, the prosecution should ordinarily be for the graver offence. In this case, the offence under Section 409 I.P.C. is punishable with transportation for life whereas an offence under Section 5(2) of Act II of 1947 is punishable only with seven years rigorous imprisonment, or with fine, or with both. There is no doubt that the offence under Section 5(2) is graver than the offence under Section 5(2) of Act II of 1947. The prosecution must, therefore, be for the graver offence under Section 409 I P C. even though the facts disclosed fall within Section 5(2) of Act II of 1947.

8. The offence under Section 343 I.P.C. is punishable with imprisonment for two years or fine or both. The offence under Section 347 I.P.C. is punishable with imprisonment for three years and fine. The offence under Section 5(2) of the Prevention of Corruption Act is punishable with 7 years imprisonment and fine. The prosecution should therefore be launched for the grave offence punishable under Section 5(2) of the Prevention of Corruption Act. If the complainant-appellant applied to the competent authority for the necessary sanction to prosecute the accused for the offence under the Prevention of Corruption Act, the authority would have considered whether it is necessary in the interests of justice to sanction the prosecution. The requirement of sanction under Section 6(1)(c) of the Prevention of Corruption Act is a safe-guard for the public servants against frivolous or inexpedient prosecutions. Where allegations are made against a public servant and the allegations essentially and primarily constitute an offence for which a sanction is necessary, it cannot lie in the whim or caprice of the prosecutor to change the garb or to put a different label and then prosecute without the sanction. Further, when the allegations constitute several offences and the gravest offence requires a sanction, then also it would not be open to the prosecutor to dispense with the requirement of a sanction by prosecuting the public servant for the minor offences for which no sanction is necessary.

9. For the reasons recorded, I am of the view that the impugned order of the learned Magistrate allowing the objection of the respondents-accused to the prosecution against them is eminently justified and does not call for any interference. The appeal is therefore dismissed.


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