N.K. OGLE versus SANWALDAS @ SANWALMAL AHUJA

N.K. OGLE

SANWALDAS @ SANWALMAL AHUJA

MARCH 18, 1999

[G.B. PATIANAIK AND M.B. SHAH, iJ.)

Criminal Procedure Code, 1973-Section 197-lmmunity contemplated under-Applicability of-District Collector ordered the Tehsildar to recover certain sum of lease money from R-Telisildar registering the matter and · issued DemQlld Letter to R-R did not pay, instead he visited the Tehsildar by visiting his office on his scooter and objected to the issue of Demand letter-Tehsildar seized the scooter Qlld sold the same in auctiort-R filing complaint under Section 379 lPC Qlld getting the process issued from the Magistrate-Held Such an act on the part of Tehsildar was bona fide act in purported exercise of power under M.P. Land Revenue Code-Hence, in the absence of SQ/lction under Section 197 CrPC, compliant filed by R against the Tehsildar was not maintainabl~urther, High Court erred ill examining the legality of the order of attachment of the Collector Qlld in holding otherwise on that ground-f'enal Code, 1860, Section 379-Complaint against Tehsildar without Sanction under Section 197 CrPC-Maintainability-M.P. Land Revenue Code, 1959.

The appellant, Tehsildar received an order from collector to collect certain lease money from the respondent. The Tehsildar issued demand letter to respondent. The respondent later came in his scooter to the office of Tehsildar and objected to the legality of the order of issuing the demand p letter. The Tehsildar seized the scooter and immediately reported to the Collector. The respondent, thereafter, filed complaint under Section 379 IPC against the Tehsildar alleging that the Tehsildar had forcibly kept his scooter while he had gone to his office. After the seizure of the scoter, the same was auctioned by the Tehsildar. The Judicial Magistrate on the basis of the complaint of the respondent took cognizance of the same and issued process against Tehsildar. The process was challenged by the Tehsildar on the ground that the act complained of were in discharge of his official duty and therefore, in the absence of sanction under Section 197 CrPC, the Court had no jurisdiction to entertain the complaint. It was rejected by the Magistrate on the ground that the acts complained of had no rational 1233

[1999) 1 S.C.R.

nexus with the discharge of official duty of Tehsildar. On Revision, the Sessions Court reversed the finding of the Magistrate holding that the acts complained of were directly connected with the performance of his official duties. The respondent thereafter challenged the order of the Sessions Judge in Revision before the High Court under Section 482 CrPC. The High Court set aside the order of the Sessions Court on the ground that the acts complained of did not .appear to relate with the responsibility of the post of Tehsildar, and hence, the immunity of Section 197 Cr PC was refused. However, in coming to the above conclusion ~he High Court examined the provisions of the M.P. Land Revenue Code and held that the order of attachment of the Collector was not in accordance with law and therefore, any purported action taken by Tehsildar on the basis of such invalid order would not give him protection of Section 197 CrPC. Hence this appeal.

Allowing the appeal, this Court

HELD : 1. Before coming to conclusion whether the provisions of Section 197 CrPC will apply, Court must come to conclusion that there is reasonable connection between the act complained of and the discharge of official duty; the act bear such relation to the duty that the accused could lay reasonable claim that he did it in the course of the performance of his

duty. Therefore, in the present case the conclusion is inescapable that the act of the Tehsildar in seizing the scooter of the respondent was in dis-charge of his official dutywhich he was required to do in purported exercise of the power under the M.P. Land Revenue Code on the basis of the order issued by the Collector for collecting the lease money from the respondent and' the said act cannot be said to be pretended or fanciful claim on the part of the Tehsildar. The High Court committed error at that stage in examining the flaw or legality of the order of attachment issued by the Tehsildar. Therefore, the acts compfained of by the respondent in his complaint under Section 379 IPC against the Tehsildar has been com-mitted in discharge of the official duty of such Tehsildar and no cognizance can be taken by any court without prior sanction of the Competent Authority. Admittedly, there has been no such sanction of the Competent Authority. [1239-H; 1240-A-F]

Matajog Dobey v. H.C. Bhari, [1955) 2 SCR 925 and Suresh Kumar Bhaikamchand Jain v. Pandey Ajay Bhushan & Ors., [1998) 1 SCC 205, followed.

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N.K OGLE v. SANW ALDAS @ SANW ALMAL AHUJA [PATIANAIK, J.] 1235

B. Saha and Ors. v. M.S. Kochar, (1974] 4 SCC 177; B.S. Sambhu v. T.S. Krishnaswamy, (1983] 1 SCC 11 and Pukhraj v. State of Rajasthan & Anr., [1973] 2 SCC 701, distinguished.

CRIMINAL APPELLATE JURISDICTION: Criminal Api:eal No.

288 of 1993.

From the JiJdgrnent and Order dated 3.12.91 of the Madhya Pradesh High Court in M.Crl.C. No. 2128 of 1990.

U.N. Bachawat, Kamakshi Singh Mehelwal, Naveen Kumar Singh and Uma Nath Singh for the Appellant.

Ms. S.B. Upadhyay, for the Respondent.

The Judgment of the Court was delivered by

PAITANAIK, J. The appellant was Tehsildar in Damoh. The District Collector had ordered by sending Revenue Collection Certificate to collect lease money amounting to Rs.4,653 from Sanwaldas, respondent herein. The Tehsildar on receipt of the information from the office of the Collector registered the matter and passed an order for issuance of Demand Letter. Under the said Demand Letter the initial date had been fixed as 14.11.1989 which was, however, changed later on to 28.11.89. The Tehsildar in his order-sheet Exhibit mentioned that the Demand Letter has been received back after being duly served on the respondent Sanwal-das. On 4.12.89 an order of attachment warrant was passed. On 21.12.89 respondent Sanwaldas came to the office of Tehsildar and objected to the legality of the order of issuing the Demand ·Letter. This fact was immedi-p ately intimated by the Tehsildar to the District Magistrate on the same day. Respondent Sanwaldas then filed complaint alleging that while he had gone to the Tehsil Office on his scooter the Tehsildar forcibly kept the Scooter, and as such, has committed an offence under Section 379 of the Indian Penal Code. It may be stated that after the seizure of the scooter the Tehsildar directed for auctioning of the same and the scooter was ultimately auctioned on 22.1.90. On the basis of the complaint filed by \ respondent Sanwaldas the learned Judicial Magistrate First Class, Damoh, took cognizance of the offence and directed issuance of process against Tehsildar. Tehsildar appeared before the Magistrate op. 2.3.90 and filed an application raising objection to the order taking cogniz~e of the offence

· on the ground that the acts complained of was in discharge of the official duty of the Tehsildar and, therefore, in the absence of sanction under Section 197 of the Code of Criminal Procedure the Court will have no jurisdictioi:i to entertain the complaint. The learned Magistrate, however, rejected the said application filed by the Tehsildar by its order dated 7th March, 1990 on finding that the acts complained of have no rational nexus with the discharge of official duty of the Tehsildar and, therefore, immunity under Section 197 Cr.P.C will not be attracted. This order of the Magistrate was assailed in Revision by the Tehsildar in the Court of Sessions Judge, Damoh which was registered as Criminal Revision No. 17/90. By judgment dated 24.4.90 the learned Sessions Judge came to the conclusion that the alleged act of the Tehsildar is directly connected with the performance of his official duties and, therefore, the claim of the applicant regarding immunity under Section 197 Cr.P.C. can neither be said to be pretended nor fanciful. The Sessions Judge came to the conclusion that the Tehsildar cannot be prosecuted for the acts complained of without prior sanction of

the Government as required under Section 197 of the Code of Criminal Procedure. Accordingly, the order of the Magistrate was set aside and the complaint was held to be not maintainable. Against the aforesaid order of the learned Sessions Judge the complainant moved the High Court invok-ing the jurisdiction of the Court under Section 482 of the Code of Criminal Procedure. The High Court by the impugned judgment dated 3.12.91 being of the opinion that the acts complained of in fact do not appear to relate with the responsibility of the post of Tehsildar and Tehsildar has mis- used his powers, interfered with the order of Sessions Judge and held that the provisions of Section 197 of the Criminal Procedure has no application to the case in hand. In coming· to the aforesaid conclusion the High Court examined the provisions of the M.P. Land Revenue Act and came to hold that the order of attachment of the Collector was not in accordance with law, and therefore, any purported action taken by Tehsildar on the basis of such invalid order will not give him protection of Section 197 of the Code of Criminal Procedure. According to the High Court the Tehsildar must be held to have mis-used his post or the rights associated with the post and, therefore, question of taking sanction from the Government before initiating any criminal proceeding does not arise. It is this order of the High Court which is being assailed in the present appeal.

Mr. Bachawat, learned senior counsel appearing for the appellant contended that the Court while examining the question of applicability of

N.K.OGLEv. SANWALDAS@SANWALMALAHUJA [PATIANAIK,J.] 1237

Section 197 Cr.P.C. in given case is required to find out whether the acts complained of constituting the alleged offence can be said to have been done in exercise of the powers of the public officer or in purported exercise of the power of the said officer and if the answer is in .the affirmative then the provisions of Section 197 Cr. P.C. would get attracted. According to Mr. Bachawat, if it is found that the concerned public officer has acted bona fide in exercise of or in purported exercise of power conferred upon him and not on the basis of pretended plea, then the provisions of Sub-section (1) of Section 197 of the Code of Criminal Procedure would apply, even if such officer has done something in excess than what is provided for. According to Mr. Bachawat on the findings of the High Court the acts complained of having been done .in exercise of the powers under the provisions of M.P.Land Revenue Act which order of the Tehsildai in turn was issued pursuant to the order of the District Magistrate, Damoh for recovering the lease money from the respondent, the High Court committed error in examining the legality of such. order and then coming to conclusion on the question about the applicability of Section 197 Cr.P.C. In support of this contention reliance was placed on the Constitu-tion Bench decision of this Court in the case of Matajog Dobey v. H.C. Bhari, 1955 (2) SCR 925 and recent decision of this Court in the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan and Others, (1998) 1 sec 205.

Mr. Upadhyay, learned counsel appearing for the respondent on the other hand contended, that the acts of the Tehsildar which was the subject matter of the complaint filed by the respondent cannot be said to have reasonable nexus with the duties of the Tehsildar, and therefore, for such illegal acts the protection provided under Section 197 Cr.P.C. will not p apply. According to Mr. Upadhyay, the plea of the Tehsildar that he forcibly retained the scooter in exercise of his power under the provisions of M.P. Land Revenue Act is nothing but pretended and fanciful plea and consequently the High Court was fully justified in recording the findings that the provisions of Section 197 will have no application to the case in hand. In support of this contention reliance was placed on the decision of this Court in the case of B. Saha and Others v. M.S. Kochar, [1979) 4 SCC 177 and in the case of B.S. Sambhu v. T.S. Krishnaswamy, (1983) 1 SCC 11 and in the case of Pukhraj v. State of Rajasthan and Another, (1973) 2 SCC 701. According to Mr. Upadhyay the legislative intent engrafted behind Section 197 of the Code of Criminal Procedure is

to prevent public servant from being unnecessarily harassed. But if an authority misuses his power as found by the High Court in the present case and such protection is given then the very purpose for which Section 197 was engrafted on the Statute Book would get frustrated.

Bearing in mind the rival submissions at the bar and examining the allegations made in the complaint petition we are pefS'Jaded to agree with the submissions made by Mr. Bachawat, learned senior counsel appearing for the appellant. Undisputedly the appellant at the relevant time was the Tehsildar and the District Collector had passed an order for collecting the lease money of Rs.4,653 from the respondent Sanwaldas. On the basis of the aforesaid order of the District Collector the Tehsildar, the present appellant, appears to have registered the matter in his Court and ordered for issuance of the Demand Letter and infact such Demand Letter had been issued and had been duly served on the respondent and yet the respondent had not made the payment. It further appears that as no steps had been taken by the respondent to pay the money an order of attachment warrant was issued on 4.12.89 and it is then on 21.12.89 when the respon-dent was available with the scooter in the Tehsil office the said scooter was seized and it is such seizure and retention of the scooter of the respondent which is the gravamen of the allegation of offence under Section 379 in the complaint case. Such action of the Tehsildar in our considered opinion cannot but be bona fide act on the part of the Tehsildar in purported exercise of the power under the M.P. Land Revenue Act.

In Saha's case (supra) what this Court had held is that there must be direct and reasonable nexus between the offence committed and the discharge of the official duty. Charge of dishonest misappropriation or conversion of goods by customs authority which they had seized was held not to be in discharge of official duty and as such Section 197 has no application as misappropriation cannot be said to be in discharge of official duty. We see no reasons how the aforesaid decision is of any application in the present case. It is nobody's case that the Tehsildar forcibly retained the scooter and used it for his own purpose. On the other hand the scooter after being seized was put to public auction for recovery of the legal dues of the government as against the respondent.

In Sambhu's case (supra) the Court was examining as to whether defamatory language used by judge to an advocate can be said to be in

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discharge of the official duty. Obviously this Court held that use of such defamatory language by no s<retch of imagination can be held to be in discharge of official duty and consequently the provisions of Section 197 will have no application. The aforesaid decision has no application to the present case.

The third decision relied upon by Mr. Upadhyay is the Pukhraj's case [B ](supra). In the said case the question for consideration was that when government servant on orders of transfer had requested his employer for cancellation of the transfer and the employer started abusing and giving kicks to the said government servant whether it can be said to be in purported exercise of his duty. This Court in no uncertain terms came to the conclusion that the act of abusing and giving kicks cannot be said to be an act done in the execution of duty or in purported exercise of the execution of the duty. In our considered opinion the ratio of the aforesaid case also will have no application.

The Constitution Bench decision of this Court in Matajog Dobey's case (supra) clearly enunciates where power is conferred or duty is imposed by statute or otherwise and there is nothing said expre·ssly inhibit-ing 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 [E ]necessary for such execution, because it is rule that when the law commands a' things to be done, it authorises the performance of whatever may be necessary for executing its command. The Court was considering in the said case the allegation that the official authorised in pursuance to warrant issued by the Income Tax Investigation Commission in connec-F tion with certain pending proceedings before it, forcibly broke open the entrance door and when some resistance was put the said officer not only entered forcibly but tied the person offering resistance with rope and assaulted him mercilessly causing injuries and for such act complaint had been filed against the concerned public officers. This Court, however, came to hold that such complaint cannot be entertained without sanction of the Competent Authority as provided under Section 197 Cr.P.C. This Court had observed that before coming to conclusion whether the provisions of Section 197 of the Code of Criminal Procedure will apply the Court must come to conclusion that there is reasonable connection between the act complained of and the discharge of official duty; the act must bear such

[1999) 1 S.C.R.

[relation to the duty that the accused could lay reasonable claim that he ]did it in the course of the performance of his duty. Applying the aforesaid ratio to the case in hand the conclusion is inescapable that the act of the Tehsildar in seizing the scooter of the respondent was in discharge of his · official duty which he was required to do on the basis of the order issued by the Collector for g<.tting the lease money from the respondent and the said act cannot be said to be pretended or fanciful claim on the part of the Tehsildar. The High Court, in our view committed error at that stage in examining the flaw or legality of the order of attachment issued by the Tehsildar.

In Suresh Kumar's case (supra) relying upon Matajog Dobey's case (supra) and bearing in mind the legislative mandate engrafted in Sub-sec-tion (1) of Sectibn 197 debarring court froni taking cognizance of an offence except with previous sanction of the Government concerned this Court has held that the said provis~rt is prohibition imposed by the statute from taking cognizance and as such the jurisdiction of the Court in the matter of taking cognizance and, therefore Court will not be justified in taking cognizance of the offence without such sanction on finding that the acts complained of are in excess of the discharge of the official duty of the concerned government servant.

In the aforesaid circumstances and in view of our earlier conclusions a5 to the circumstances under which the order of attachment was issued and the scooter was seized we have no hesitation to hold tpat the acts complained of by the respondent against the Tebsildar had been committed in discharge of the official duty of the such Tehsildar and, therefore, no cognizance can be taken by any court without prior sanction of the Com-F petent Authority. Admittedly there has been no. such sanction of the Competent Authority.

We accordingly allow this appeal and set aside the impugned order of the High Court. The order passed by the learned ·Sessions Judge is

[affirmed ]

Appeal allowed.