Dismissed

Rakesh Kumar Sharma v. State of Haryana and Anr.

Punjab & Haryana HC25 Jan 2012CRM-M/1697/2008

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition under Section 482 Cr.PC, the High Court dismissed the plea to quash a complaint and charge against a Municipal Clerk for allegedly deleting voters. The Court held no sanction under Section 197 Cr.PC was needed as the acts were fraudulent and not relatable to official duty.

What did the court decide?

The petition for quashing of the complaint and impugned orders was dismissed.

Rakesh Kumar Sharma Vs State of Haryana and… — Service and Employment | Punjab & Haryana HC (2012)

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CRM No. M-1697 of 2008 -1-

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Criminal Misc. No.M-1697 of 2008 Date of Decision:- 25.1.2012

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Rakesh Kumar Sharma, Clerk in Municipal Committee, Narwana ...Petitioner

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Versus

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The State of Haryana & Anr.

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...Respondents

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CORAM:HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR

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Present:Mr.Jagdish Manchanda, Advocate for the petitioner.

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Mr.Amit Rana, Deputy Advocate General, Haryana for respondent No.1.

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Mr.V.S.Punia, Advocate for respondent No.2.

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Mehinder Singh Sullar, J . (Oral)

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The epitome of the facts, giving rise to decide the core controversy, involved in the instant petition and emanating from the record, is that Chander Mohan son of Uttam Chand complainant-respondent No.2 (for brevity “the complainant”) is a permanent resident and is residing with his family members in House No.660/1, Prem Nagar, Narwana, District Jind for the last about 15 years. According to the complainant, he is getting the government pension from Narwana. He has two big medical shops in front of hospital and opposite busstand, where his sons are working round the clock. They are paying house tax, sales tax & income tax and have gas, telephone connections and ration card on the same address. The complainant and his family members have eight votes and exercised their right to vote in every election. The Chief Election Commissioner of India has issued the photo identity cards to them. The complainant claimed that

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CRM No. M-1697 of 2008 -2-

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petitioner-accused Rakesh Kumar Sharma, who is working as Clerk in the Municipal Committee (for short “the MC”), Narwana alongwith some other officers of the MC with a malafide, criminal, fraudulent intention illegally deleted their names from the voters' list, without any prior information and basis/reason, in order to defame them. The complainant made the complaint to the Deputy Commissioner, who marked the inquiry and the SDM found the accused guilty and sent his report to the DC for further action.

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Levelling a variety of allegations and narrating the sequence of events, in all, according to the complainant that the accused have mala fidely, criminally, fraudulently and illegally deleted the names of his family members from the voters' list on a false plea that they had left the city, in order to deprive them from exercising their valuable right to vote. In the background of these allegations, the complainant filed a complaint (Annexure P1) against the petitioner-accused for the commission of the offences punishable under Sections 166, 167, 218, 464, 465, 466, 471, 499 and 500 IPC in the manner indicated hereinabove.

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Taking cognizance on the complaint, the trial Magistrate summoned the petitioner-accused, by virtue of summoning order dated 15.1.2000. Having recorded the pre-charge evidence, the petitioner was accordingly charge-sheeted under sections 166, 167 and 465 IPC, vide order dated 24.11.2005 and the case was slated for evidence of the complainant. He did not challenge the indicated summoning order and the order framing the charge.

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During the pendency of the complaint, the petitioner moved an application (Annexure P2) under section 245 Cr.PC, to discharge him. The complainant refuted his prayer and filed the reply (Annexure P3) to the application.

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The trial Magistrate dismissed the application, by way of impugned order dated 5.7.2006 (Annexure P4). The revision petition filed by the petitioner

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CRM No. M-1697 of 2008 -3-

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was dismissed as well, by the revisional Court, by means of impugned order dated 12.12.2007 (Annexure P5).

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The petitioner-accused still did not feel satisfied and preferred the present petition for quashing the impugned complaint (Annexure P1) and orders (Annexures P4 & P5), invoking the provisions of Section 482 Cr.PC, inter-alia pleading that since he has removed the names of the complainant and his family members from the voters' list, while acting as a public servant, so, the sanction under section 197 Cr.PC was mandatory before taking cognizance of the complaint. The complainant had the alternative remedy to approach the higher authorities with regard to deleting the names from the voters' list and petitioner has been falsely implicated. On the basis of aforesaid allegations, the petitioner sought to quash the impugned complaint (Annexure P1) and orders (Annexures P4 and P5) in the manner described hereinbefore.

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The complainant-respondent contested the claim of petitioner and filed the reply, inter-alia taking the preliminary objections of, maintainability of the petition and locus standi of the petitioner. According to the complainant that no sanction under section 197 Cr.PC is required and the Courts below have rightly negatived the claim of petitioner. Instead of reproducing the entire contents of the reply and in order to avoid the repetition of facts, suffice it to say that the complainant-respondent has reiterated the allegations contained in his complaint (Annexure P1). However, it will not be out of place to mention here that he has stoutly denied all other allegations contained in the petition and prayed for its dismissal.

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After hearing the learned counsel for the parties, going through the record with their valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the instant petition in this context.

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Ex facie, the argument of learned counsel that as the petitioneraccused has deleted the names of complainant and his family members from the

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voters' list in discharge of his official duty, therefore, without sanction under Section 197 Cr.PC, no cognizance can be taken against him, in view of the law laid down by Hon'ble Apex Court in cases Parkash Singh Badal and Anr. v. State of Punjab and Ors. 2007(1) RCR (Criminal) 1; State of Andhra Pradesh v. Goloconda Linga Swamy and another 2004(6) J.T. 34; R.Balakrishna Pillai v. State of Kerala 1996(2) RCR(Criminal) 765; P.K.Pradhan v. The State of Sikkim represented by the Central Bureau of Investigation 2001(3) RCR(Criminal) 835; Sankaran Moitra v. Sadhna Das & Anr. 2006(2) RCR (Criminal) 389 and of this Court in cases M.L.Sanghi v. Suresh Kumar and others 2008(2) RCR (Criminal) 954 and Gian Parkash v. State of Haryana 2008(3) RCR (Criminal) 31 , is not only devoid of merits but misplaced as well.

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Possibly, no one can dispute in regard to the crux of the observations in the aforesaid judgments that the Court cannot take cognizance without sanction and protection under section 197 Cr.PC is available only if the alleged act done by a public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. It was also observed that there should be a reasonable connection between the act, performance of his official duty and the act should squarely fall within the scope, range of his official duty and not otherwise. To me, the same would not come to the rescue of the petitioner in the present controversy, as at the same time, it was also ruled that in every offence committed by a public servant, which is not at all relatable to his official duty, no sanction under section 197 Cr.PC is required.

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What cannot possibly be disputed here is that petitioner-accused neither challenged the summoning order dated 15.1.2000 nor the order dated 24.11.2005 framing the charge against him. Moreover, there are direct allegations against him in the complaint that despite permanent residence, receiving pension, on the same address, the sons of complainant are running the two medical shops 24 hours, paying the house tax, sales tax and income tax, having gas, telephone

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connections and ration card on the given address, the petitioner-accused fraudulently and illegally removed their names from the voters' list with the connivance of other official without prior notice and basis, in order to defame and deprive them from exercising their valuable right to vote. Fraudulently and mala fidely removal or deletion of names of the complainant and his family members from the voter list as indicated hereinabove, cannot possibly be termed to be his act, relatable to and in connection with the performance of official duty of the petitioner-accused. Therefore, for such illegal act, no sanction under section 197 Cr.PC is necessary, as contrary urged on his behalf.

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Not only that, the protection under section 197 Cr.PC is available only in case of public servant, who is not removable from his office save by or with the sanction of the Government and not otherwise. As the petitioner was only a Clerk in the MC, therefore, he was not such a public servant, to whom, the provisions of Section 197 Cr.PC are attracted, in this relevant connection.

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Meaning thereby, the trial Court as well the revisional Court has rightly negatived the claim of petitioner-accused in this relevant behalf and correctly recorded the cogent grounds. Such impugned orders, containing valid reasons, cannot possibly be interfered with by this Court, while exercising the limited powers conferred under section 482 Cr.PC, unless and until, the same are illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-accused, so, the impugned orders deserve to be maintained in the obtaining circumstances of the case.

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No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

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In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such.

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CRM No. M-1697 of 2008 -6-

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Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant direction.

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25.1.2012 (Mehinder Singh Sullar) AS Judge

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Whether to be referred to reporter? Yes /No

Rakesh Kumar Sharma v. State of Haryana and Anr.

Case brief

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Rakesh Kumar Sharma v. State of Haryana and Anr.

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