even there is excess of discharge of official duty, sanction is mandatory - Apex Court including Anjani Kumar Vs.State of Bihar , it was held when complaint filed against the government official as a counterblast to the action taken by him and when the facts show the complaint as afterthought with deliberations roped the official in continuation of proceedings amounts to abuse of process therefrom quashed the proceedings and for that conclusion referred several expressions.

HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

CRIMINAL PETITION No.4319 of 2015  

28-01-2016

S.Bala Krishna ...Petitioner/Accused

The State of Telangana  Rep.by its Public Prosecutor High Court, Hyderabad and
another .Respondents

Counsel for the petitioner : M/s K.R.Koteswara Rao

Counsel for respondent No.1 :Public Prosecutor
Counsel for respondent   No.2:G.Tirupati Reddy

<GIST  : ---

>HEAD NOTE : ---

? Cases referred:                                :
1.  AIR 2001 SC 2547
2.  AIR 1939 FC 43
3.  AIR 1948 PC 128
4.  AIR 1955SC 309
5.  AIR 1955 SC 287
6.  AIR 1956 SC 44
7.  AIR 1957 SC 458
8.  AIR 1979 (0) 1841
9.  AIR 1966 SC 220
10. AIR 2000 SC 3187
11. AIR 1955 SC 287
12. 2015(1) SCC 513
13. 1993 3 SCC 339
14. 2008(11) SCC 289
15. 2015 AIR SCW 3282  
16. 2012 3 SCC 64
17. (2012)12 SCC 72
18. (2006)4 SCC 584
19. 2015 12 scale 500
20. AIR 1951 SC 207
21. 2015 (2) ALD (Crl) 627(SC)
22. AIR 2005 SC 4305
23. (2005) 8 SCC 130
24. 2015 AIR SCW 2643  
25. 2004 8 SCC 40
26. AIR (2013) SC 3018
27. 1976 3 SCC 736
28. (2008) 5 SCC 248


HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO          

Crl.P.No.4319 of 2015

ORDER :
         This petition is filed under Section 482 of the Code of Criminal
Procedure (for short, the CrPC) by the Petitioner/accused to quash the
order passed in Crl.M.P.No.236 of 2015 in Cr.No.154 of 2011 on the file of the
X Additional Chief Metropolitan Magistrate, Secunderabad, who took
cognizance of protest petition filed by the defacto-complainant for the
offences u/sec.3(1)(X) of SCs/STs(POA) Act, 1989.
         2. Heard the learned counsel for the petitioner so also the learned
Public Prosecutor representing State-1st respondent and also the learned
counsel for the 2nd respondent-defacto-complainant and perused the material
on record.
        3. The factual matrix is that the 2nd respondent by name V.Jai Prakash
is
member of the 8th ward of cantonment area. The petitioner/accused is
present Defence Estates Officer, Kolkota Circle, Kolkota, West Bengal and
earlier worked as Chief Executive Officer of the Secunderabad cantonment
member. The 2nd respondent presented a police report dated 25.08.2011, to
the Station House Officer, Maredpally Police Station, against the petitioner
herein with the averments that he belongs to Arrava mala of S.C. community
and elected Ward Member from ward No.8 of Secunderabad cantonment from  
the reserved constituency, in  the elections of May, 2008, that it is the
practice in the cantonment Board that whenever Board meeting is held, the
proceedings have to be recorded in the minutes book and got thereof to be
circulated and in the Board meeting held on 20.07.2011, several deliberations
took place indicating the irregularities in the prime land and unauthorized
constructions taking place in the limits of the Secunderabad cantonment
Board, that he requested to furnish the details of all cases pending in the
Courts with present status as there are many instances where unscrupulous
builders obtained status quo and making unauthorized constructions, that the
Board taken no steps against said violators from the Court orders from which
the collusion between the builders and local standing counsel appears
apparent, and on hot debate on this aspect, his request was unanimously
supported resolved by the Board for initiation of suitable action within 15
days. While so on 22.08.2011 during the public Board meeting, he was
shocked to see that deliberations took place during Board meeting dated
20.07.2011 not formed part of the minutes and the resolutions without
reasonable explanation from the concerned officials, that when he strongly
questioned and demanded to find out these lapses as the matter concerned of
prime properties of Board and sanctity of Court orders, for which the accused
Balakrishna-the then Chief Executive Officer, got infuriated remarked that his
status is permanent in nature while Board members will come and go and said
discussion grew serious and in the presence of Board members, staff, media
general public and in the presence of the persons A.Srinivas, J.Ramakrishna,
S.Nagraju, A.Raju, the accused abused and instigated the complainant by
using filthy language and tarnished the image of the complainant and
reputation but also warrants prosecution under the relevant provisions of law,
and the said report was received on 26.08.2011 at 15.30 hours and registered
as Cr.No.154 of 2011 u/sec.3(1)(x) of the Act by the Sub Inspector of Police
and handed over investigation to the ACP, Mahankali.
         4. The police from said investigation filed final report u/sec. 173 of
Cr.P.C. dated 18.05.2012 column 6 shows lack of evidence is the cause. The
final report reads that on 26.08.2011 at 3.40 hours V.Jai Prakash(complainant)
lodged a complaint at Marredpally Police Station, Hyderabad who registered
the same as Cr.No.154 of 2011 u/sec.3(1)(x) of the Act, and in the course of
investigation besides the complainant, 20 more witnesses examined who were
the persons present at the incident dated 23.09.2011 of the Board meeting
and besides recording their statements also and from the discreet enquiries
by the Investigating Officer, it revealed that one Ramakrishna, husband of
Smt. J.Anuradha-a Cantonment Board Member,  is a sleeping partner in Octroi
and Toll Tax Contract and their interest was suffered due to termination said
contract. One Baluka Mallikarjun  and J.Ramakrishna said to have visited the
office of accused and discussed about termination of Octroi and Toll Tax
contract and accused told to one Kesava Reddy the close associate  of
complainant, not to charge excess amount than rates prescribed in the S.R.O.
and not to violate terms of the contract but said Kesava Reddy  never tried to
take the advice of accused in right manner to control violations. It was so on
21.07.2011, the Board has taken up the matter and with a voice vote, the
Octroi and Toll Tax contract was terminated, in the said Board meeting,
B.Narmada, J.Anuradha and Kesava Reddy and Jai Prakash voted against the  
proposal of termination of the Octroi and Toll Tax Contract. The contractors
filed a Writ Petition in the High Court and the same was dismissed by the High
Court, that prior to the Cantonment Board meeting on 22.08.2011, i.e. on
18.08.2011 Keshava Reddy, V.Jai Prakash(complainant), Banuka Mallikarjun
and M.Ramakrishna visited the Sub Area Office to meet the GOC regarding
Octroi and Toll Tax issue and the alleged accused was present in the Andhra
Sub Area Office and pressurized him to release bank guarantee and even
though the CEO tried to make them understand, they have stated that the
Bank Guarantee should be released, else they will not allow him to work in
the Cantonment.  As far as the witnesses examined concerned, some members  
of the Board who attended the meeting denied to have occurred the alleged
incident of abusing the complainant castigating him by the alleged accused
Balakrishna, CEO, on the other hand, it can also be considered that, the
reports who were brought by the complainant speaking in favour of the
complainant and the alleged Smt. Bankuka Narmada, Smt. J.Anuradha,  
S.Keshava Reddy and V.Jai Prakash and others brought by the complainant are
his interested witnesses since their intention is only to support him to get his
wish and Keshava Reddy fulfilled, hence their version cannot be relied upon,
whereas, the police report given only on 26.08.2011 with afterthought to
involve the accused in the offence supra,  as the accused is not acting to their
will and wish and for not favouring them for strictly acting as per rules and
regulations, that K.Madhu Mohan Rao,D.R.O., Hyderabad was present in the
house being the official dignitary and responsible, having acquainted with the
atrocities law and being responsible officer to enquire could not keep quiet
when such alleged incident took place, the print electronic media usually
covers Board meeting and publish the same on the next day news, on the next
day the allegations in the police report are true for such incidents not come in
print and electronic media but the newspapers only speaking cantonment
Board meeting held. But as prior statements furnished by the witnesses above
though supporting version of complainant, V.Jai Prakash of C.E.O. abused in
caste name the complainant, that had the accused Balakrishna abused the
complainant, the language used by the alleged complainant would be the
same, that the complainant established that he managed them to sign on the
statements addressed to me in the way he desired so, but he has forgotten to
take care that the language used by the alleged accused should be similar,
when all the witnesses supporting the complainant speak the facts, the
language which the alleged accused used on the complainant should be
similar, from the above and from the evidence collected reveals, on
22.08.2011 when Board meeting of the Cantonment held at 9 hours at Board
office presided by Major General K.Digvijay Singh, President of Cantonment
Board, the members Head of Sections, Media people and other general public
were present and the meeting was started at 9.15hours and discussions on the
agenda items one by one were going on and item No.5( Revision of rates of
Octroi and toll tax), President asked all the Board members for their views on
termination of Octroi and toll tax contract, some expressed termination and
others for necessary action against the Contactor as per Cantonment Act;
suddenly some arguments with regard to recording of resolutions started and
Jai Prakash(complainant) and Sri Keshav Reddy, members of the Cantonment  
Board shouted loudly saying that the C.E.O. S.Balakrishna should record in the
minutes the resolution which should be as told by them but not as
he(S.Balakrishna) likes, for which the C.E.O. S.Balakrishna replied that
whatever discussions have been taken place in the Board only being recorded
in the Minutes. At that time, Jai Prakash(complainant) repeatedly sdemanded
in high pitch tone and called the CEO as rowdy. Then the CEO pointed out
that he is not a rowdy and discharging his duties as Member Secretary of the
Board and he can report all his objections to the President of the Board. Then
Jai Prakash and Keshav Reddy raised from their chairs and proceeded towards
the CEO abusing in filthy language, but the members stopped them. The CEO
also stood from the chair and shouted that Jaya Prakash(complainant) should
not talk in filthy language and should behave as a responsible office Member
of the Board but not as rowdy element. Subsequently on the request of the
members and President of the Cantonment Board, the Members, Sri  
V.Jayaprakash and the CEO resumed their chairs and proceedings of the Board
were continued and all the items in the agenda were discussed peacefully.
The witnesses who were present when the Incident took place speak that
heated arguments took place between the CEO and the complainant Jai
Prakash and no such uttering of any words castigating the complainant took
place and the version of the complainant Jai Prakash is found contrary to the
version of the said witnesses and the complainant and the CEO are not on
good terms since long on certain issues in the Board and the complainant is
trying to establish his dignity before the other members to down the CEO for
not acting according to his wishes favouring them with regard to the contracts
of certain works which developed and lead to the incident.  In order to corner
the alleged CEO Balakrishna and root out him as he is not favouring them, the
complainant seems to have preferred complaint against him with false and
baseless allegations indulging him in an atrocities case
         5. As the case stood thus, the C.D. file sent to the Public Prosecutor,
PPO,  XI Addl. CMM Court for opinion to finalize the case and the PPO opined
as  not a fit case for charging the accused person for the offence supra and
there is no base even to raise a strong suspicion to say that the things have
happened in the manner as projected by the defacto-complainant and none 
named in the complaint can be charge sheeted for the said offence.
         6. Aggrieved by the same, the complainant filed a protest application
before the learned Magistrate on 10.10.2014 vide Crl.M.P.No.236 of 2015
which reads that the investigating officer has not followed the cardinal
principles of investigation into of offence contemplated under Cr.P.C. and
thereby final closure report for lack of evidence is bad in law and untenable,
that law does not given permission to investigating officer to peep into the
truthfulness of the statements of witnesses recorded but for of the Court to
appreciate during evidence as to the veracity and the conclusions by the
investigating officer from the witnesses statements recorded of no such
utterances by accused taken place abusing of complainant and thereby the
investigating officer exceeded the parameters of law that resulted injustice,
that there is no dispute with regard to the Board meeting held on 23.08.2011
and the other witnesses cited by names Jai Prakash(the protest petitioner-
complainant), S.Kesava Reddy, Smt. Bhanuka Nrmada, the elected members    
of the Board were present in the meeting, but the final report is silent about
this information in column Nos. 12 and 13 shown as blank which shows the
investigating officer not examined any witness. that the S.C.& ST (POA) Act,
1986 is a Special Act and the Government appointed a Senior Officer of the
cadre of Deputy Superintendent of Police to investigate and the investigating
officer no way shown he was duly appointed under Rule 7 of the Act to
investigate by the competent authority, thereby the final report is
unauthorized, hence to reject, that the investigating officer to complete
investigation on top priority within 30 days but admittedly the case was issued
on 26.08.2011 and the final report is 18.05.2012 more than 8 months, that the
opinion of the investigating officer about the delay in lodging report on
22.08.2011 for the occurrence dated 22.08.2011 is afterthought is  unsolicited
and the final report thereby is biased one to help the accused, hence, not to
accept the final report by allowing the petition, record statements of all
witnesses, take cognizance and issue warrants in the above crime against the
accused.
        7. Pursuant to which the protest petition on different dates came for
consideration by return and representation, as the case may be, and the
sworn statement of the complainant in protest petition was recorded by the
learned Magistrate on 07.02.2005 besides J.Ramakrishna, a businessman
A.Sreenivas of Begumpet, S.Nagaraju of Begampet and Raju of Marredpally
saying in one voice as they also attended the Board meeting.
         8. It is important to say in the original report registered as
Cr.No.154 of
2011 by Sub Inspector of Police, Maredpally, the said Jai
Prakash(complainant) mentioned the witnesses present are A.Srinivas,
J.Ramakrishna, S.Nagaraju, A.Raju but not named L.Ws. 2 to 5 of the sworn
statement recorded by the Magistrate on the protest application. Leave about
L.W.1 Jai Prakash sworn statement, in tune to his report J.Ramakrishna who
claimed as businessman of Marredpally, stated that on 22.08.2011 at the
Board Meeting attended by him the complainant Jai Prakash, questioned the
S.Balakrishna-CEO(accused) that the deliberations taken place on 20.07.2011
were not recorded in the minutes of the meeting for which the CEO not given
appropriate explanation, for which Jai Prakash raised high voice, for which
Balakrishna-C.E.O. stated his job is permanent and Board members can come  
and go from which the discussion has become serious, meanwhile Balakrishna
abused Jai Prakash in filthy language by touching his caste as Nuvvu oka
mala lanjakudukku vee, nuvvu naku yanduku yeduru vastunava, nee anthu
chustha, mala nakodaka, mala bastard na tho fight chestay neenu board
keranevakunda chestha.  In fact, he stated that police examined him during
investigation however his statement not recorded. Part-II Case Diary final
report of the police shows said Ramakrishna was examined as L.W.3 on
30.09.2011 and he stated is resident of Plot No.60, Mahendra Hills, East
Maredpally and he stated that the meeting of cantonment Board held on
22.08.2011 and several discussions on several public issues mentioned in the
agenda were discussed and while the meeting was going on several heated
arguments on some topics between Board Members and CEO took place and    
when Jai Prakash(complainant) insisted a reply from the CEO about certain
irregularities committed by him, all of a sudden between Jai Prakash and
C.E.O., heated arguments taken place and said CEO raged and started abusing
Jai Prakash(Complainant) castigated him and tried to beat in a bit of anger
and screemed Jai Prakash touching his caste name. Here actually words
uttered touching caste with an intent to insult if at all not reflected from the
Statement. He was examined by police is not even in dispute by
J.Ramakrishna before the learned Magistrate and L.W.2 and there is no
explanation in the statement before the Magistrate  that even he stated the
actual words not reflected in the statement of the investigating officer when
said Ramakrishna was examined on 07.02.2015, that too, on the protest
petition of Jai Prakash who was supplied with final report and endorsed on
the report from the Court on 02.03.2013, the said version of Ramakrishna
before the investigating officer and not using any actual words of abuse
whether to attract the offence supra or not, to decide the development in the
protest application examination has to be viewed in that perspective. Even
coming to A.Sreenivas, S.Nagaraju and Geethakumari, examined before the
Magistrate on the protest petition on 07.03.2015 and his version is like of
J.Ramakrishna supra whereas, in his examination before investigating officer
as L.W.4 (A.Srinivas), dated 30.09.2011 is stated about half an hour after the
meeting, he heard some loud voice from the Board meeting hall on which he
went to the Board meeting place and observed the C.E.O. was in anger raised
on Jai Prakash as Mala lanjakodaka, nee anthu choosthaa, nenu talchukunte
Boardku Ralevu abused in filthy language. Whereas, the sworn statement
recorded before the Magistrate on protest application, the words used stated
as Mala na kodaka, mala bastard, nuvu mala lanjakodukuvi, nee anthu
chusta, leave about some difference in the said version even before the
investigating officer but both convey the same thereby it is clear that the
investigating officers investigating is not fair as what are the words stated in
his examination of witnesses that he recorded but for that if at all
investigating officer one sided as contended by the complainant. Like in the
statement of Ramakrishna before the investigating officer nothing speaks of
any words uttered actually. It could be even from the statement of L.W.4
A.Srinivas also from the police investigation statement.
       9. Coming to the sworn statement of Raju before the Magistrate is in
tune with A.Sreenivas, J.Ramakrishna and Nagaraju supra which are almost
stereotyped version with even a parrot like.
      10. The learned Magistrate therefrom passed an order dated 10.02.2015
which reads as follows:-
     Complainant is present. His advocate is present. Perused
the case record. The contents of the final report clearly go to
show that there were exchange of filthy words in between the
complainant and accused. Moreover, the contents of the sworn
statements of the complainant and his witnesses P.W.2 to P.W.4
corroborating the allegations leveled by the complainant in his
complaint. The contents of the final report have strengthened
the allegations made by the complainant as the contents
mentioned in the final report clearly visualizing that there was
exchange of words coupled with the filthy nature in between the
complainant and proposed accused. Hence, I felt the allegations
made against the accused are well founded under Section 3(1)(x)
of SC/ST (POA) Act, 1989. Therefore, I felt it will be just and
proper to take the cognizance against the accused under Section
3(1)(x) of SC/ST (POA) Act, 1989. Hence, the cognizance is taken
on accused Sri S.Balakrishna under Section 3(1)(x) of SC/ST
(POA) Act, 1989. The office is directed to register the complaint
as PRC No.11 of 2015. Issue summons to accused and call on  
08.05.2015.
        11. It is against said cognizance order the quash petition filed with
the
contentions that the police having examined as many as 22 witnesses and
concluded from the investigation of a false implication of the CEO Balakrishna
by said Jai Prakash(complainant) for his insult discharged his duties for
extraneous reasons as pointed, taking cognizance by the Magistrate simply by
recording 4 sworn statements besides of complainant as L.Ws.2 to 5 is
untenable and it is not a mere private complaint but outcome after police
investigation referred report from protest application and the cognizance
order of the learned Magistrate is by non-application of mind as unsustainable
apart from the alleged occurrence even from the say in discharge of official
duties in the public Board meeting where the accused was functioning as CEO.
When such is the case, the sanction under Section 175 of Cr.P.C. is mandatory
for the Magistrate to take cognizance without which the cognizance order is
unsustainable and liable to be quashed. Apart from that, the case is falsely
foisted and none of the provisions of SC & ST Act applies and the provisions
are in misuse out of spite and ill-will by the complainant and the Court cannot
allow such an abuse of process to subserve the ends of justice. Apart from
delay in report of occurrence also to be viewed for the deliberations and
consultations in false implication and therefrom to be quashed.
       12. Whereas, the defacto-complainant as 2nd respondent to the quash
petition supported the order of the learned Magistrate saying it is in the four
corners of law as per the Sections 200 to 202 Cr.P.C. in taking cognizance
u/sec. 190 of Cr.P.C. and issued process u/sec. 204 of Cr.P.C. and thereby
sought for dismissal for nothing to interfere by this Court u/sec. 482 of
Cr.P.C.
       13. Heard and perused the material on record.
       14. Instead of reproducing the details respective contentions to avoid
bulky, this Court is going into merits with reference to respective contentions
in arriving just decision of the lis.
       15. Undisputedly, the order of the Magistrate taking cognizance is simply
from statement of the protest petitioner/defacto-complainant-the L.W.1 and
P.Ws.1 and 4 more witnesses whose sworn statements recorded as P.Ws. 2 to  
5 and nothing beyond. If it is a private complaint for the first time to take
cognizance from the enquiry contemplated u/sec.200 to 202 read with 190 of
Cr.P.C. it is a different thing. It is not the same from facts on hand
undisputedly. It is in fact, the alleged occurrence taken place on 22.08.2011
in the Board official meeting while going on where the complainant
participated as 8th ward member whereas, the accused C.E.O. participated in
the official capacity as Member Secretary of the Board. It is in that Course
even from the versions so called heated exchanges took place including in slip
of words or abuse.  In the facts, it is difficult to decipher actual words
uttered context with other official meeting proceedings and participation
from the context as even from the very complainant/informant, it is in
question about the alleging in recording of earlier meeting minutes by the
C.E.O. it was pointed out, for which there was a reply and in that official
status and discharge of duties and in the official meeting there is the alleged
excess in uttering words touching the caste if at all the same is even believed
true.
        16. It is in this context where sanction is required or not to take
cognizance under Section 197 of Cr.P.C. is to be answered.

       17. Section 197 of Cr.P.C. reads as follows:-
197. Prosecution of Judges and public servants.

(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-

(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;

(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: 1 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.

(2) No Court shall take cognizance of any offence alleged to have been
committed by any member of the Armed Forces of the Union while acting or 
purporting to act in the discharge of his official duty, except with the
previous
sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of
sub- section (2) shall apply to such class or category of the members of the
Forces charged with the maintenance of public order as may be specified
therein, wherever they may be serving, and thereupon the provisions of that
sub- section will apply as if for the expression" Central Government" occurring
therein, the expression" State Government" were substituted.

(3A) 1 Notwithstanding anything contained in sub- section (3), no court shall
take cognizance of any offence, alleged to have been committed by any member 
of the Forces charged with the maintenance of public order in a State while
acting or purporting to act in the discharge of his official duty during the
period
while a Proclamation issued under clause (1) of article 356 of the Constitution
was in force therein, except with the previous sanction of the Central
Government. 

(3B) Notwithstanding anything to the contrary contained in this Code or any
other law, it is hereby declared that any sanction accorded by the State
Government or any cognizance taken by a court upon such sanction, during the
period commencing on the 20th day of August, 1991 and ending with the date
immediately preceding the date on which the Code of Criminal Procedure
(Amendment) Act, 1991 , receives the assent of the President, with respect to an
offence alleged to have been committed during the period while a Proclamation
issued under clause (1) of article 356 of the Constitution was in force in the
State, shall be invalid and it shall be competent for the Central Government in
such matter to accord sanction and for the court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may
determine the person by whom, the manner in which, and the offence or
offences for which, the prosecution of such Judge, Magistrate or public servant
is to be conducted, and may specify the Court before which the trial is to be
held.

       18. As per Section 197(1) supra the sanction is mandatory from the
government concerned of the public servant, the accused of an offence
alleged to have been committed by him while acting or purporting to act in
the discharge of official duty and without such previous sanction, no Court
shall take cognizance such alleging offences. In three judge Bench expression
of Apex Court in P.K.Pradhan Vs. State of Sikkam Rep. by the CBI  held at
paras-5 to 16 that referring to several of the earlier expressions right from
Hori Ramsingh Vs. Emperor , HHB Gill Vs. the King , Amrik Singh Vs. State
of Pepsu  Sreekantiah Ramayya Munipalli Vs. State of Bombay , Matajog
Dobey Vs. H.C.Bhari , Omprakash Gupta Vs. State of U.P. , B.Saha Vs. M.S.  
Kochar , Baijnath Gupta Vs. State of Madhya Pradesh , Abdul Vahab Ansari
Vs. State of Bihar , K.Satwant Singh Vs. State of Punjab  observed in para-
5 that the legislative mandate engrafted in sub section (1) of Section
197debarring a court
from taking cognizance of an offence except with the previous sanction of the
Government
concerned in a case where the acts complained of are alleged to have been
committed by a
public servant in discharge of his official duty or purporting to be in the
discharge of his official
duty and such public servant is not removable from office save by or with the
sanction of the
Government touches the jurisdiction of the court itself. It is a prohibition
imposed by the
Statute from taking cognizance. Different tests have been laid down in decided
cases to
ascertain the scope and meaning of the relevant words occurring in Section 197
of the Code,
"any offence alleged to have been committed by him while acting or purporting to
act in the
discharge of his official duty." The offence alleged to have been committed must
has
something to do, or must be related in some manner, with the discharge of
official duty. No
question of sanction can arise under Section 197, unless the act complained of
is an offence,
the only point for determination is whether it was committed in the discharge of
official duty.
there must be a reasonable connection between the act and the official duty. It
does not
matter even if the act exceeds what is strictly necessary for the discharge of
the duty, as this
question will arise only at a later stage when the trial proceeds on the merits.
What a court has
to find out is whether the act and the official duty are so inter-related that
one can postulate
reasonably that it was done by the accused in the performance of official duty,
though,
possibly in excess of the needs and requirements of situation  and further
discussing in
para-6 from Hori Ram Singh supra observed that  the question was considered as
to
whether the protection under Section 197 of the Code can be confined only to
such acts of the
public servant which are directly in pursuance of his public office, though in
excess of the duty
or under a mistaken belief as to the existence of such duty, and in para-8
referring to
Sreekantiah Ramavva Munipalli supra quoting Hori Ram Singh supra observed
that Section 197 of the Code should not be construed in such a narrow way so
that the same
can never be applied for of course it is no part of an official's duty to commit
an offence and
never can be. But it is not the duty we have to examine so much as the act,
because an official
act can be performed in the discharge of official duty as well as in dereliction
of it. The section
has content and its language must be given meaning." In para-9 referring to
Amrik
Singh supra held that held Section 197 of Cr.P.C. that if the discharge of
official
duty and the act of the accused complained of are inseparable, sanction under
Section 197 of
the Code would be necessary.. In para-12 referring to Sureshkumar Bhikamchand
Jain supra referring to earlier expression of Matajog Dobey held the
legislative
mandate engrafted in subsection (1) of Section 197 debarring a court from taking
cognizance
of an offence except with previous sanction of the Government concerned, this
Court has laid
down that he said provision is a prohibition imposed by the statute from taking
cognizance
and, as such, exercising jurisdiction of the court in the matter of taking
cognizance and,
therefore, a court will not be justified in taking cognizance of the offence
without such
sanction on a finding that the acts complained of are in excess of the discharge
of the official
duty of the government servant concerned.  Para-14 to 16 referring to the
Constitutional Board expressions of K.Satwanth Singh and also Om Prakash
Gupta supra observed that for claiming protection u/sec. 197 Cr.P.C. it has to
be shown reasonable connection between the Act, complained of and
discharge of official duty. It is well settled that the question of sanction
u/sec. 197 of Cr.P.C. can be raised at any time after the cognizance, may be
immediately after cognizance or framing of charge or even at the time of
conclusion of trial and after conviction as well, any appeal. In Rajib Ranjan
Vs. R.Vijakumar  two judge Bench at paras 14 to 18, it is observed sanction
however is necessary if the offence alleged against the public servant is
committed by him after acting or purporting to act in the discharge of his
official duties as held in Buddi Kota Subbar Rao Vs.K.Prakasham  para-6 the
fact or omission on facts found reasonable connection that discharge of his
duty by the accused thereby sanction is required that cannot be disputed. In
Raghunath Anant Govilkar Vs. State of Maharashtra  supra referring to
Sreekantaiah and Amrik Singh supra observed if the act complained of is
concerned with official duties, sanction would be necessary and therefrom
observed if a public servant enters into a criminal conspiracy and indulges in
criminal misconduct and misdemeanor, it is not to be treated as an act in
discharge of official duty thereby in that case sanction held not necessary.
Even from Rajib Ranjan supra, the principle of law laid down of the act
complaint of no way connected to the discharge of duties, sanction is imposed
is reiterated. In Inspector of Police Vs. Battenapatla Venkateramaiah  the
three judge Bench expression of the Apex Court referring to Rajib Ranjan
supra observed the facts of that case while reiterating the principle of the
protection u/sec. 197 given to the public servant is in the public interest and
in Subramanian Swamy Vs. Manmohan Singh -it was held that the provisions
dealing with sanction u/sec. 197 of Cr.P.C. must be construed in such a
manner as to advance the cause of honesty, justice and good governance and
the para-74 therein speaks that public servants are treated as a special class
of persons enjoying the special protection so that they can perform their
duties without fear and favour and without threats of malicious prosecution.
Thus even from this Battenapatla Venkata Ratnam supra if it is connected
with the discharge of duties even there is excess sanction is required.
                19. In Om Prakash V. State of Jharkhand and Kailashpathi Singh V.
Rajiv Ranjan Singh  (common order) in relation to the encounter killings
from the attack against police, it was observed on the scope of Section 197
Cr.P.C that prior sanction is a pre-condition for taking cognizance of offences
against the police officials and there is no requirement for such accused
officials to wait till framing of charges to raise the plea.  In Sankaran Moitra
V. Sadhana Das  it was held that when police fired in defence and in
performance of their officials duties cannot be prosecuted without sanction
under Section 197 Cr.P.C and therefrom quashed the prosecution initiated
against them by the Apex Court.  In N.K.Ganguly Vs. CBI, New Delhi  though
a case under Section 19 of the P.C.Act referring to Section 197 of Cr.P.C. also
referring to the earlier three judge Bench expression of R.R. Chary Vs. State
of U.P.  on the scope of Section 197 of Cr.P.C. the word cognizance indicates
very initially of proceedings against the public servant and the three judge
Bench in Amrik singh supra held the requirement of sanction can be raised at
any stage and in Matajog Dubey supra it was held Section 197 of Cr.P.c is not
ultra vires to Article 14 of the Constitution of India, and it is imperative to
obtain sanction of the alleged offence is committed in discharge of official
duty by the accused in saying without sanction the proceedings are
unsustainable also referring to the conclusion, several expressions including
Srikanthaiah and Hori Ramsingh, a Federal Court and Satwanth Singh of
Constitutional Bench expression and Baidyanath Gupta supra in concluding
that if the application of the Cr.P.C. of also held in another Constitutional
Bench expression B.Saha supra is that the offence charged for want of
commission or omission must be one which has been committed by the public  
servant either in his official capacity or under the colour of the office held
by
him. In another recent expression of the Apex Court in Nanjappa Vs. State of
Karnataka . No doubt the case under Section 19 of P.C. Act by also referring
to several expressions including u/sec.197 of Cr.P.C. including the
Constitutional Bench expressions of B.Saha, Badrinath Tripati supra and State
of Karnataka Vs. C.Nagarajaswamy  among the others to the conclusion that
the order of acquittal on the ground of acquittal recorded by setting aside by
the High Court found fault by allowing the appeal setting aside the reversal
order of the High Court saying sanction required.
                20. In Nagarajaswamy supra it was held that when prior sanction by
competent authority is provided by statutory provision which is a sine-qua-non
for taking cognizance, ordinarily the question to be dealt with is at the stage
of taking cognizance.  Even cognizance taken erroneously, once the same
comes to the notice of the Court at a later stage finding to that effect is to
be
given by the Court.  The accused is entitled to take such plea or sanction
required at any point of time including even in hearing the appeal before the
appellate Court.  It was held that when all the mandatory requirements of the
statutory formalities not complied with, practically cognizance cannot be
taken by the Court and any cognizance taken is therefrom is unsustainable.
                22. In further saying as held in Nagarajaswamy supra and State of
Goa
Vs. Babu Thomas  for want of sanction the Court taking cognizance is
incompetent and that error was so fundamental that invalidated the
proceedings conducted by trial Court by relegating the parties to apposition
where the competent authorities could issue on appropriate order sanctioning
the prosecution. In another expression D.T.Virupakshappa Vs.C.Subhash
referring to Kumar Raghavendra Singh Vs. Ganesh Chandra Jew  of
protection u/sec.197 Cr.P.C. is to protect responsible public servant against
the institution of possibly vexatious criminal proceedings for the offences
alleged to have been committed by them while they are acting or purporting
to act as public servants. If in doing his official duty he even acted in excess
of a duty when there is reasonable connection between the act and
performance of duty, the excess will not be sufficient ground to deprive the
protection to the public servant and it was observed ultimately when police
allegedly exceeding in exercise of his power in alleging while investigating he
assailed the complainant and detained him in police station, said offence
committed is when reasonably connected with the performance of the official
duty previous sanction is mandatory and the proceedings thereby followed
vitiated in quashing the proceedings.
        23. Having regard to the above, from the above expressions referring to
the principle laid down as to when sanction is required when not, coming to
the facts of the case on hand, when it is a clear case that the accused is
discharging official duty as CEO-Principle Secretary of the Board in the
respective meetings including it is a duty to attend and record the minutes
and while the official meeting was going on including from presence of the
complainant and questioning of earlier minutes of meeting not properly drawn
and there were exchange of heated words between them and in the course
the alleged abuse taken place, it is interconnected with the discharge of
official duties with alleged excess thereby sanction is mandatory, without
which the proceedings are null and void and unsustainable and are liable to be
quashed of the cognizance taken by the learned Magistrate without adverting
to the requirement or any of the sanction and without application of judicial
mind engrafting mechanically cognizance by taken on file to allot PRC Number
to commit to the Special Court of Sessions. Apart from the above coming to
the facts further on the cognizance taken otherwise sustainable or not
concerned, the Apex Court in the expression of 5 judge Bench in Dharampal
Vs. State of Maharashtra  held that the Magistrate has a role to play while
committing a case to the Court of Sessions upon taking cognizance on the
police final report submitted u/sec.173 of Cr.P.C. read with Section 190
Cr.P.C. In the event, the Magistrate disagrees, when the police final report,
has to choice that is made to act on the basis of a protest petition that may
be filed or made, while disagreeing with the police report, to issue process
and summoning the accused.  From this, it is clear that even police filed final
referred report, Magistrate may defer with the opinion of police and can take
cognizance and going through the entire material or on even protest
application filed by the complainant may proceed to enquire into to take
cognizance or thereunder.
       24. No doubt, it is not therefrom a mere proceeding like a private
complaint case while proceeding against the accused on a protest application
even the Magistrate accepted the police referred report while proceeding on
the protest application of the accused, leave about the Magistrate by going
through the final report even deferred with the police referred report
opinion and can take cognizance. Here the Magistrate did not take
cognizance by deferring with police final referred report containing more
than 22 witnesses examined including the President of Cantonment Board
among other officials and non-officials, including Ward Members attended
public meeting whether the issue allegedly taken place. Then out of the two
options referred in Dharampal supra, one not availed by the Magistrate and
the other is to proceed on the protest application. When such is the case, the
Magistrate is bound not only simply to accept the facts referred in the
protest application and the sworn statement of protest petitioner-cum-any
other witnesses but also bound to consider earlier police referred report and
also if necessary accept any explanation impugning the investigation
including among those witnesses examined by the Investigating officer if
explained away as to they did not so state before investigating officer or
they were not even examined or of they stated not correctly reflected.
Without which,  that too, when police filed referred report outcome of
earlier crime registered is part of the Court record and it is based on report
alone, protest application is filed impugning the referred report from the
very protest raises that referred report formed part for consideration to
consider the protest against. By then the Magistrate shall have no right at all
to totally ignore the earlier investigation final referred report. From that
principle when applied to the facts here from the police final referred report
there are as many as 22 witnesses examined of whom but for one Kesava
Reddy shown sailing with the complainant and from perusal of the material is
the main person besides B.Narmada, Mallikarjuna(husband of B.Narmada)
and J.Ramakrishna whose wife is Anuradha-Board member, on investigation
material clearly shows they all got grievance apart from the others viz;
Nagaraju in sailing with the complainant, CEO wants to cancel the Toll Tax,
Octroi collection contract that was the issue also in the meeting for which he
is not accommodating them that causes loss to them from any extension of
the contract they got the grievance. In the protest application there is
nothing against the investigating officer personally attributed even to say
what is the basis for investigating officer if at all to allegedly acted is
unfairly or with any bias. On perusal being a senior officer of the D.S.P.
cadre when investigated the case in the absence of showing how the
investigating officer is not fair, the Court is bound to accept such
investigation before. No doubt by reason, the protest complainant is entitled
to point out here there is nothing basis to say investigation by the Senior
Police Officer is not fair. Here importantly several of the witnesses like
K.Ramachandra and staff reporter(among the media persons) attended,
stated there was some sudden arguments between the CEO  
Balakrishna(accused) and Ward Members Jai Prakash(complainant) and  
Krishna Reddy and other cited and Krishna Reddy and Jai Prakash raised from
their chairs by proceeding towards CEO Balakrishna by abusing him as rowdy
and they were stopped by Pratap, Venkata Rao, and Balakrishna Pointed
them for their using as rowdy in his saying he is responsible member they
have to behave as responsible members and the same was after pacified
particularly at the request of the President of the Cantonment Board Major
General K.Digvijay Singh and work was resumed and the agenda further
meeting went on peacefully and the CEO Balakrishna did not abuse in his
presence, the said Jai Prakash and another Press reporters among the media
also stated so including the District Revenue Officer, Parasani Shyam Kumar,
Member of the 7th ward of the cantonment, Panasa Venkata Rao another
Board member, A.Ashok Kumar, journalist among the press on behalf of the
TV5 news channel and Ramadugu Venkat another Press Reporter of Andhra  
Prabha, Nampally Srinivas Press Reporter of Vaartha daily newspaper,
J.Pratap, Board Member of the Cantonment, one Yogeshswamy another  
nominated Member of the cantonment, another Major General Digwijay,
President of the Cantonment Member, one Joseph M.G.Celestian so and one  
Geetha Kumari Office Superintendent supra also stated so when all they in
one voice being the independent witnesses stated that there was no any
abuse by the C.E.O. Balakrishna of Jai Prakash but for Jai Prakash and
Krishna Reddy that abused Balakrisha including addressing meeting as rowdy
for which he felt sorry for it and questioned them to behave like responsible
member of the cantonment member and he is discharging his official duties,
it clearly speaks without any such incident happened on 22.08.2011 as
pointed out rightly by the investigating officer after deliberations and
consultations with the motive behind to implicate the CEO-Balakrishna as he
is not acting to their tunes to benefit them in the Octroi and toll tax contract
extension and also in other aspects for the C.E.O. discharging his official
duties strictly as per law and procedure being a public servant, to malign him
and demeaning him and made him to tend to them if possible a distorted
version brought into existence after three days by false implication for the
first time in that report and once the investigating officer from the
independent witnesses version and also from the versions of the persons
noted in the F.I.R. among others members including attended besides the
President of the Cantonment Member and several press people mostly in one
voice stated any such instances was happened the referred report is right and
justified by the conclusions. When such is the case, the learned Magistrate by
recording 34 sworn statements of the complainant and the persons to his
tunes brought by him, taken cognizance of the case totally ignoring the
police referred report supra and none of the even independent witnesses
who categorically stated no such incidents as happened, even not examined
at least one to say the investigating officer did not record his statement or
he did so state or even he stated to the investigating office about any abuse
taken place it is not properly reflected even to defer with the investigating
officer from the so called protest to take cognizance, thereby the cognizance
taken by the learned Magistrate simply based on the few versions of the
complainant/protest petitioner and his three or four more persons which he
cited to his tunes is unsustainable and it is nothing but abuse of process by
the complainant to wreak vengeance for which the legal machinery cannot
be allowed to use and any such permission is nothing but grave abuse of
process and the inherent powers are there to prevent such abuse to subserve
the ends of justice.
        25. Having regard to the above, cognizance taken by the Magistrate per
se unsustainable for no factual foundation for the police final report with 22
witnesses with mostly about more than 15 including all independent witnesses
show any such incidents happened to believe in distorted version of the
defacto-complainant as protest petitioner in his saying in tune to his report
given after 4 days of the alleged incident and in citing three or four more
persons to support him when they have got motive behind the issue to support
the complainant as the official is not acting to their tunes to accommodate
for their extraneous gains. Further more when the act incredibly connected
with the official discharge of duty sanction is mandatory. The Apex Court in
Smt. Nagavva Vs. V.S.Kojalgi  held whether the allegations in the complaint
are highly improbable and no prudent person can believe or reach to the
conclusion to support the allegations.  It is a fit case for quashing the same
is
really by the recent expression of the Apex Court in D.T.Virupakshappa supra
where categorically held even there is excess of discharge of official duty,
sanction is mandatory in quashing the proceedings and referring to it and also
the Apex Court including Anjani Kumar Vs.State of Bihar , it was held when
complaint filed against the government official as a counterblast to the action
taken by him and when the facts show the complaint as afterthought with
deliberations roped the official in continuation of proceedings amounts to
abuse of process therefrom quashed the proceedings and for that conclusion
referred several expressions.
          26. In the result, the Criminal Petition is allowed quashing the
proceedings in Crl.M.P.No.236 of 2015 in Cr.No.154 of 2011 on the file of the
X Additional Chief Metropolitan Magistrate, Secunderabad. Consequently,
miscellaneous petitions, if any, pending in this Criminal Petition shall stand
closed.
____________________________    
Dr. B. SIVA SANKARA RAO, J  
Date:28.01.2016

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