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Mansingh Deora Vs. Daulat Rathi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 3 of 1983
Judge
Reported in1984WLN558
AppellantMansingh Deora
RespondentDaulat Rathi and ors.
DispositionPetition allowed
Cases Referred and B.P. Sambhu v. T.S. Krishnaswami
Excerpt:
.....criminal procedure code--section 197--satisfaction of two conditions--accused chairman of uit is a public servant and acted in discharge of duty--held, cognizance of offence cannot be taken without previous sanction of state government.;he was and is the chairman of the urban improvement trust, jodhpur. 'trustee', as defined in the rajasthan urban improvement act, 1959 includes the chairman of the trust section 93 of this act lays down that every trustee shall be deemed to be a public servant within the meaning of section 21 of the indian penal code. the accused, thus, was and is a public servant.;in order to extend the protection under section 197, cr.p.c., two conditions should be satisfaction:;(1) the accused must be a public servant not removable from his office save by or with the..........him and he was summoned to take trial thereunder. the contention of the accused is he being a public servant, cognizance of offence could not be taken against him in absence of the requisite section under section 197, cr.p.c.2. it would be proper to briefly recapitulate facts giving rise, to revision. on october 12, 1982 the complainant daulat rathi submitted a complaint in writing in the court below stating therein that the accused was the chairman of urban improvement trust, jodhpur. on october 10, 1982 the trust invited the bidders to make bids in the auction of a site for the cinema house. this site is known as manji ka hattha situate on mandore road, jodhpur. a number of families reside on this site by raising kattcha structures. the auction of the site was to result in the.....
Judgment:

S.S. Byas, J.

1. Accused Mansingh Deora has filed this revision for qunshing order of the learned Judicial Magistrate (3), Jodhpur dated November 19, 1982, by which cognizance for offences under a Section 323 and 504, I.P.C. was taken against him and he was summoned to take trial thereunder. The contention of the accused is he being a public servant, cognizance of offence could not be taken against him in absence of the requisite section under Section 197, Cr.P.C.

2. It would be proper to briefly recapitulate facts giving rise, to revision. On October 12, 1982 the complainant Daulat Rathi submitted a complaint in writing in the Court below stating therein that the accused was the Chairman of Urban Improvement Trust, Jodhpur. On October 10, 1982 the Trust invited the bidders to make bids in the auction of a site for the Cinema House. This site is known as Manji ka Hattha situate on Mandore road, Jodhpur. A number of families reside on this site by raising Kattcha structures. The auction of the site was to result in the up-rooting of these persons. These dwellers approached the Janta Party. The complainant was a member of that party. A delegation was led of these dwellers by the complainant to prevail over the accused not to make the auction of the site. Many other office bearers of Janta Party were there in the delegation when the complainant along with delegation approached the accused and requested him not to auction the site, the accused got infuriated and started abusing the former. The complainant raised protest against the behaviour of the accused. The accused got more annoyed and slapped the complainant, The accused also illegally detcined the complainant in the tent raised at the site. Thereafter the other employees of the Trust dragged down the complainant and gave him kicks The members of the delegation and the dwellers tried to intervene and rescue the complainant. Slogans against the accused were raised by the mob. Meantime the City Magistrate and the Additional District Magistrate came there and they rescued the complainant. The learned Magistrate, after conducting an enquiry under Section 202, Cr. P.C, summoned the accused to take trial for offences under Sections 323 and 504, L.P.C. Aggrieved against this order of taking cognizance, the accused has come up in revision.

3. I have heard the learned Counsel for the parties and gone through the case file carefully, It may be noticed that the accused had initially filed writ petition against the impugaed order which was later or treated as the revision.

4. It was vehemently contended by Mr. Purohit that the accused was and is the Chairman of the Urban Improvement Trust, Jodhpur. He being a trustee of the said Trust, is a public servant as per provisions of Section 93 of the Rajasthan Urban Improvement Act, 1959. The allegations of the offence made against him show that the offence, if at all were committed, were coomitted while acting or purporting to act in the discharge of his official duties. It was argued that the accused was conducting as auction of the site for a cinema house in the capacity of the Chairman of the Trust. The complainant came with a mob, disturbed the conduct of auction and obstructed him (accused) in carrying out his functions as the Chairman of the Trust The mob became violent and tension mounted there at the site. The City Magistrate, the Additional District Magistrate and the Additional Superinten dent of Police who were already there from the beginning disended the not controlled the Trust against the complainant and others at Police Station Mahamandir, Jodhpur within as hour of the occurrence. A case under Section 147, 332, 452, etc. of the Panal Code was registered against the complainant and his companions. It was urged by Mr. Purohit that in view of there circumances, what the accused did even if the allegations of the complainant are taken as true on the face, was done by him while he was acting or purporting to act in the discharge of his official duty. As a Chainman, he was removable from the office only by the State Government and by no other authority. As such he could not be prosecuted until and unless a proper sanction for his prosecution was (sic)obained from the State Government. Raliance in support of the contention was placed on Mata Jog Dobey v. H.C. Bhari : [1955]28ITR941(SC) and Hari Ram v. B.P.Sood 1956 R.L.W. 279.

5. Mr. Mathur, learned Counsel appearing for the complainant contended on the other hand that the acts committed by the accused had no connection with the discharge of his official duty. The acts committed by him had no connection with his duties As such no sanction was necessary under Section 197, Cr.P.C. before launching the complaint against the accused Reliance in support of the contention was placed on Pukhraj v. State of Rajasthan A.I.R. 1973 S.C. 251 and B.P. Sambhu v. T.S. Krishnaswami 1982 Cr.L.R.S.C. 513. I have taken the respective submissions into consideration.

6. There is no difficulty to hold that the accused was a public servant and continues to be so even now. He was and is the Chairman of the Urban Improvement Trust, Jodhpur. 'Trustee'. as defined in the Rajasthan Urban Improvement Act 1959 includes the Chairman of the Trust. Section 93 of this Act lays down that every trustee shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal. Code. The accused, thus was and is a public servant.

7. The real bone of contention between the parties is whether the accused can or cannot be prosecuted in absence of sanction under Section 197, CR.P.C. The avowed object of Section 197, Cr.P.C. is to guard the public servant against vexatious and frivolous criminal proceedings and thus to save them from harassment and humiliation which one faces in the trial of a criminal case. Now, in order to extend the protection under Section 197, Cr.P.C. two conditions should be satisfied

(1) the accused must be a public servant act removable from his office save by or with the sanction of the State or Central Government and

the offence was commited by him while acting or purporting to act in the discharge of his official duty.

8. If these two conditions are there in a given case the safeguard (sic)ted under Section 197, Cr.P.C. will atonce spring up. In other words these two conditions are are since quans non for the applicability of safeguard granted by section 197, Cr.P.C. if these two conditions are satisfied the criminal court will not then take cognizance of the offence and if cognizance has been taken it should be quashed and the criminal proceeding should be dropped.

9. The words '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' in section 197, Cr.P.C. afford a key for its application Though a good heap of case law has grown up around these words, the difficulty in actually a applying them in a given case still persists. The difficulty is not so much about the principle underlying these words. It is there in applying it in a particular case.

10. When an objection is taken and the defence is raised by an accused under Section 197, Cr.P.C, generally the allegations made in the complaint are taken into consideration. But if the accused has furnished material either in the original court or in the higher court, that material should also be looked into to arrive at the conclusion whether the provisions of section 197, Cr.P.C. should or should not be attracted.

11. In the instant case, the allegations made in the complaint are that the complainant led a delegation of the dwellers of the site to lodge protest before the accused in his capacity as the Chairman of the Urban Improvement Trust, Jodhpur against the auction of the site The objection or protest against the auction could be made to the accused only in his capacity as the Chairman of the Trust. Had he not been the Chairman no protest against auction could not be lodged before him. As such there is no difficulty in holding that when the complainant approached him with a delegation and the mob of the dwellers, the accused was acting as a public servant in the discharge of his official duty. If he was not discharging his official duty at that time, no protest against the auction of the site could be made before him. The very fact that the complainant led the delegation of the dwellers and lodged protest before the accused in itself shows that the accused must be taken as acting in the discharge of his official duty.

12. There are allegations in the complaint that the mob raised slogans against the accused. In the First Information Report lodged by an Inspector of the Trust against the complainant and other persons (copy of which is there on record), a slightly different version has been given It has been mentioned therein that the complainant and the mob led by him became violent. They raised slogans against the accused and did not allow the accused to conduct the arction. They not pelted stones and some persons of the police party sustained injuries. Even the accused was not spared and the complainant pushed and man handled him. When the allegations disclosed in the complaint and the allegations made in the F.I.R. are read together it appears that the mob and the members of the delegation led by the complainant became violent. The situation there on the spot became surcharged with tension. The police had to intervene to disband the mob and delegation led by the complainant. The apprehended riot was thus quelled by the police and the situation thereafter got quietened. If amid such circumstances the accused addressed some abusive words to the complainant or manhandled him, these acts of the accused must be taken to have been committed by him while acting or purporting to act in the discharge of his official duty

13. The question whether or not an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty depends upon the facts of the each case. The principle, however, is well-settled that there should be a reasonable connection or mexue between the alleged offence and the official duty, which was being performed by the official concerned. The circumstances that while so acting the public servant acted in excess of his duty will not be a sufficient ground to deprive him of the protection under Section 197, Cr.P.C. so long as there is reasonble connection between the impugned act and the performance of the official duties. The object of section 197, Cr.P.C. is to guard against vexatious proceedings against the public servant.

14. In Hari Ram's case (supra), the accused who was a Sub-Divisional Magistrate told the Commissioner in the presence of the complainant that the complainant was a 'Gunda'. It was held that section 197, Cr.P.C. came to the rescue of the accused-and he could no(sic) be prosecuted without prior sanction under Section 197, Cr.P.C. The observations made is Hari Ram's case can be aptly applied to the instant case in hand.

15. The facts in Pukhraj's case and in the case of B S. Sambhu were entirely differant. There the acts of accused had no reasonable connection with the performance of their duties as a public servant. As such, the authorities relied upon by Mr. Mathur do not help him.

16. It may be repeated that some reasonble nexus between the act complained of and the performance of official duty should be there to attract the ban imposed by section 197, Cr.P.C. If this nexus is there, the protection should be extended to the accused.

17. The purpose of enacting Section 197, Cr.P.C. is to enable the public servant to perform their official duties freely and independently without fear of vexatious prosecution.

18. In the instant case, both the conditions required by Section 197, Cr.P.C. exist in favour of the accused The material furnished clearly shows that whatever was done by the accused was done by him while acting or purporting to act in the discharge of the official duties as the. Chairman of Urban Improvement Trust, Jodhpur. As such cognizance for offences under Section 323 and 504, I.P.C. could not be taken against him save with the previous sanction of the State Government. The accused could be removed from the office of the Chairman only by the State and no other authority. The order of cognizance being bad should be quashed.

19. In the result, the revision filed by the accused is allowed. The impugned order of the learned Judicial Magistrate (3), Jodhpur dated November 19, 1982 is set-aside and the proceedings in criminal case No. 419 of 1982 taken against the accused are dropped as cognizance against him could not be taken without the previous sanction of the State Government.


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