Allowed

Shivendra Kumar v. State of Jharkhand And Anr.

Jharkhand HC7 Feb 2014Cr.M.P./258/2009

Case brief

AI extract

What is this about?

The High Court allowed a petition quashing entire criminal proceedings including a taking cognizance order under NI Act and IPC 504. The court held that since there was no prior sanction for prosecution of a government official and the case fell under the category of malicious prosecution, the proceedings were not maintainable.

What did the court decide?

The entire criminal proceeding initiated against the petitioner, including the order taking cognizance dated 05.12.2008, is quashed and set aside.

Shivendra Kumar Vs State of… — Constitutional and Fundamental Rights | Jharkhand HC (2014)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 258 of 2009

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Shivendra Kumar ....Petitioner

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Versus 1. The State of Jharkhand 2. Shri Narayan Das … Opposite Parties --------

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The State of Jharkhand

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Coram: THE HON’BLE MR JUSTICE P.P. BHATT -------For the Petitioner : M/s..Manoj Tandon, Kumari Rashmi, S.S. Kr., N.K. Singh, Advocates For the State : Mr. Shree Prakash Jha, A.P.P. For Opp. Party No.2 : Mr. Manoj Kumar Chaubey, Advocate

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09/07.02.2014: The petitioner, by way of filing the present petition under Section 482 of the Code of Criminal Procedure has prayed for quashing the entire criminal proceeding as initiated against him including order dated 5.12.2008, passed by learned Judicial Magistrate, 1st Class, Madhupur at Deoghar in PCR No. 387/2007 (Tr. No. 1211/2008) whereby, the learned court-below has taken cognizance for the offence punishable under Section 504 of the Indian Penal Code read with Sections 3(i) and 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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The short facts giving rise to the present petition are as under:

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The petitioner was posted as District Superintendent of Education-cum-District Program Officer, Deoghar and the complainant was posted as Cook in Kasturba Gandhi Residential School Madhupur in the district of Deoghar, which is under the administrative control of the petitioner, who happens to be the head of primary education in a district. Because of the complaint against the complainant by the girl students and their guardian, which was very serious in nature, the petitioner being the administrative head, took action against the complainant and finally, the complainant was terminated from service. The impugned complaint was lodged by the complainant against the petitioner to wreck up his vengeance. Learned court-below was pleased to take cognizance against the petitioner for the offence

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under Section 504 of the Indian Penal Code and also under Sections 3(i) and 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Petitioner has, therefore, challenged the entire criminal proceeding including the order taking cognizance dated 5.12.2008 by way of filing the present petition.

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Learned counsel for the petitioner submitted that the petitioner is an innocent person and has not committed any offence as alleged against him. However, he has been falsely implicated in this case only with a view to cause harassment. It is further submitted that petitioner is a Government Official. In fact, there was a complaint received against the opposite party No.2 (original complainant) and departmental actions were also initiated on the ground of his behaviour and therefore, as a counter attack, the impugned complaint has been filed against this petitioner. Learned counsel for the petitioner, while referring the documents annexed to this petition, pointed out that the date of alleged incident is 12.8.2007 whereas, the date of complaint is 26.9.2007. Therefore, the impugned complaint has been filed after the delay of 44 days from the date of the alleged occurrence only with a view to harass the present petitioner, who is a Government Official and has acted in good faith in the interest of administration. Learned counsel for the petitioner further submitted that the present petitioner, being a Government Official, cannot be prosecuted without prior sanction as required under Section 197(1) of the Code of Criminal Procedure. The petitioner being Government officer is having protection under Section 197(1) of the Code of Criminal Procedure. It is submitted that in the instant case no prior sanction as required under Section 197(1) of the Code of Criminal Procedure has been obtained and therefore, on this ground, order passed by the learned Judicial Magistrate deserves to be quashed and set aside. Learned counsel for the petitioner, while referring various annexures, pointed out that present petitioner received complaint against the informant/complainant by the girls of Kasturba Gandhi Residential School Madhupur. In this context, the learned

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counsel for the petitioner has also referred the show-cause notice and the explanation given by the complainant and a departmental proceeding initiated against the opposite party No.2 (original complainant). It is further submitted that opposite party No.2 was terminated from services vide order dated 21.2.2008 after holding regular departmental inquiry. 4. Learned counsel for the petitioner in support of his submission has cited the decision of the Apex Court in the case of State of Haryana and others versus Bhajan Lal and others, reported in 1992 Supp (1) SCC 335 . According to the learned counsel for the petitioner, petitioner's case is covered within the criteria/ parameter indicated in clause-(7) of paragraph 102 of the said judgment, wherein, it is observed that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him to private and personal grudge. Learned counsel for the petitioner also cited another case law in support of his submission in the case of Sankaran Moitra versus Sadhna Das and another, reported in (2006) 4 SCC 584 . While referring paragraph Nos. 11, 22, 23 and 25 of the said judgment, it is submitted that previous sanction as required under Section 197(1) of the Code of Criminal Procedure has not been obtained in the instant case. Therefore, the petitioner's case is squarely covered by the said decision. Learned counsel for the petitioner has also referred to and relied upon the judgments reported in 2011(2) JLJR 455 and 2011(2) JLJR 469. It is further submitted that the present petitioner has acted in good faith while discharging his official duty and therefore, ratio laid down in the above referred two decisions is also applicable in the facts and circumstances of the the present case. Learned counsel for the petitioner in support of his submission has also referred to and relied upon order dated 3.8.2011 passed by this Court in Cr.M.P. No. 1418 of 2007 and submitted that this Court has taken a view that as per provisions contained in Section 197(1) of the Code of Criminal Procedure, no Court can take cognizance against the petitioner without

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previous sanction of the State Government. It is submitted that petitioner's case is also squarely covered by the said decision. 5. Learned counsel for the opposite party-complainant, while referring paragraph No.8 of the complaint, submitted that complainant has given explanation and tried to justify the delay, which has been caused in institution of the complaint. It is submitted that the complainant initially approached the authorities for ventilation of his grievances. Since no positive response has been given by the authorities, he had no option but to approach the court by filing the impugned complaint. Learned counsel for the opposite party-complainant has referred the statement given by one Meera Toppo, who was a Teacher of the school, wherein she has stated that there is no such antecedent ever reported against the complainant. It is further submitted that the act of the present petitioner cannot be treated as part of official discharge of duty and therefore, protective umbrella as enumerated in Section 197(1) of the Code of Criminal Procedure will not be available to the present petitioner. It is further submitted that the case of the petitioner does not fall within the ambit of Section 52 of the Indian Penal Code which relates to act done in “Good Faith”. It is lastly submitted that the case of the present petitioner has no merit and deserves to be rejected.

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Learned counsel for the opposite party- State Government has also tried to justify the order passed by the learned court-below and supported the arguments canvassed by the learned counsel for the opposite party No.2 (original complainant).

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Considering the aforesaid rival submissions and on perusal of the materials placed on record and more particularly the complaint filed by the complainant and the order passed by the learned court-below, it appears that learned court-below has failed to appreciate the provisions as contained in Section 197(1) of the Code of Criminal Procedure. The petitioner, being a Government Official, is having protection as provided under Section 197(1) of the Code of Criminal Procedure. Admittedly, in the instant case, there is nothing on record to show that prior

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sanction was taken before taking cognizance in this matter. Section 197(1) of the Code of Criminal Procedure runs as follows:

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“ 197. Prosecution of Judges and public servants .—

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(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—

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(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;

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(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:

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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.”

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In this context, learned counsel for the petitioner has referred to and relied upon decision given in case of Sankaran Moitra (Supra) where Apex Court held as follows:

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“25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established

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procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction.”

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Moreover, from perusal of the impugned complaint, it transpires that the date of alleged incident is 12.08.2007 whereas date of complaint is 26.09.2007. The complainant has tried to give explanation for the delay caused in lodging the impugned complaint in paragraph – 8 of the complaint, but there is an admitted delay of about 44 days in filing of the complaint. Various annexure annexed to this petition also indicates that on account of misconduct of the complainant departmental proceedings were initiated against him and as a result of which, he was terminated from the services prior to filing of the impugned complaint. Therefore, possibility of filing of such complaint with a view to cause harassment to the petitioner cannot be ruled out. Taking into account the provisions as contained in Section 197(1) of the Code of Criminal Procedure, the leaned court below ought to have considered this aspect before taking cognizance against the petitioner, but apparently the same has not been done in the instant case.

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Like wise the judgment delivered by the Hon’ble Apex Court in case of Bhajan Lal Case (Supra) regarding scope of Section 482 of the Code of Criminal Procedure and the criteria / parameters laid down in paragraph 102 is quoted herein as below:

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“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court

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in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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Looking to the facts of the present case it appears that criteria / parameter prescribed in clause 7 of paragraph 102 is

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applicable. The case of the petitioner is covered by clause 7 of paragraph 102.

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In the case of Vijay Pratap Singh V. State of Jharkhand reported in 2011 (2) JLJR 455, this court held as follows:

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“12. Having regard to the facts and circumstances of the case, appreciation of the rival submissions made by the Counsel for the parties' referred to hereinabove when the question is raised as to whether the complainant was called or abused by her caste name, thrashed or her ornaments were snatched by the accused, it comes within the domain of facts and such issues can, be decided by the Trial Court.

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But at the same time, when the complainant failed to project prima facie that the entire occurrence took place by which she was abused and thrashed within 'public view' in terms of the offence under Section 3(1)(x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989, this court can well exercise its inherent powers to quash the criminal proceeding for the alleged offence.”

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In the case of Manoranjan Prasad Sinha V. State of Jharkhand reported in 2011 (2) JLJR 469 , this court held as

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follows:-

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“2. Prosecution story in short was that the informantopposite party No. 2 presented a written report before the Jamtara police on 30.8.2006 stating therein that he was employed by the petitioner Manoranjan Prasad Sinha, Executive Engineer, R.E.O.,Jamtara as a domestic help for the last one year. Informant alleged that the petitioner proposed on 20.7.2006 to arrange Rs. 1,00,000/- (One lakh) within two days if he actually wanted to do construction work of Panchayat Mandap proposed by the side of his house, for purchasing essential articles related to construction and for that he assured to deliver the work order to him. Pursuant to such proposal by the petitioner, the informant arranged money from his fifteen friends and then went to the house of the petitioner on 23.7.2006 with all his fifteen friends to deliver the amount. It was further alleged that the petitioner finding him in the company of fifteen friends, asked the informant to come alone in his house and he took the entire amount from him. The petitioner directed that foundation was to be laid on 28.7.2006 and thereafter, informant would start the construction work since 8.8.2006. Pursuant to his direction, the informant started the construction work from 8.8.2006 and after three days, the petitioner called the informant again in his house. He visited the house of the petitioner on 13.8.2006 at about 10:00 a.m. where he was asked again to arrange Rs.50,000/- (Fifty Thousand)

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more for him as he had to give P.C. The informant .then expressed his inability to pay such amount whereupon the petitioner abused in his caste name Chamar and also said that his nature of work was to repair shoes and slippers, he need not expect for contract work and he was thrashed out. He was cautioned that if at all he wanted to continue, he was asked to arrange Rs.50,000/(Fifty Thousand) by next day morning. The informant expressed that such utterance adversely affected his personal honour and caste. On his written report, Jamtara P.S. Case No. 187/06 was registered under Section 385 of the Indian Penal Code as also under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)' Act, 1989. However, charge-sheet was submitted after investigation only under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is the impugned order.

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12. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the parties, perusal of the statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure as also under Section 164 of the Code of Criminal Procedure, I find that none of the witnesses except the informant, who alleged the occurrence, did claim having seen the occurrence and they were consistent that the informant had apprised the incident to them. Yet, one of the witnesses made substantial development in his statement recorded under Section 164 of the Code of Criminal Procedure as discussed hereinbefore. I find and observe that the ingredients to constitute an offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not attracted against the petitioner as the alleged occurrence did not take place within "public view" , as such the criminal proceeding of the petitioner under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 would tantamount to miscarriage of justice. I further find that the informant was a party to the proceeding initiated under Section 107 of the Code of Criminal Procedure brought on the report of the Junior Engineer when two rival groups forcibly tried to grab the contract work of the constructing Panchayat Mandap. For the reasons stated above, the criminal proceeding of the petitioner in Jamtara P.S. Case No.187/06, corresponding to G.R. No. 471/06 including the order by which cognizance of the offence was taken under Section 3(1)(x) 01 the Act is' quashed and this petition is allowed.”

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Various judgments cited above by the learned counsel for the petitioner are applicable in the facts and circumstances of the present case. Argument canvassed by the learned counsel

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for the opposite party (original complainant) cannot be accepted in view of the above referred decision. Moreover, proposition of law, as discussed above, also deserves to be considered before taking cognizance in this case, but the court below has failed to appreciate this aspect of the matter. Accordingly, this petition is allowed and the entire criminal proceeding as initiated against the petitioner including order taking cognizance dated 05.12.2008, passed by learned Judicial Magistrate, 1^st class, Madhupur at Deoghar in PCR No. – 387/2007 (Tr. No. 1211/2008) is ordered to be quashed and set aside.

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(P.P. Bhatt, J.)
S.B.

Shivendra Kumar v. State of Jharkhand And Anr.

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Shivendra Kumar v. State of Jharkhand And Anr.

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