Public Servants can't act Arbitrarily much less High Handedly according to Whims & Fancies like Autocrats [CASE LAW]

Penal Code, 1860 - Ss. 447, 448, 452, 453, 380, 120-B - Panchayati Raj Act, 1994 - S.19 - Criminal Procedure Code, 1973 - S.197 - Protection under - Quashing of FIR - Petitioners were the office bearers of Gram Panchayat - Dispute between the landlord and tenant with respect to commercial shop - Officers forcibly dispossessed the tenant by breaking upon the locks - Petitioners being office bearers of the Gram Panchayat betrayed complete ignorance to the fact that Gram Panchayat is creation of statute and is a State within the meaning of Article 12 of the Constitution of India and, therefore, cannot act like a private individual, who is free to act in a manner whatsoever he likes, unless it is interdicted or prohibited by law.

The petitioners have admittedly evicted respondent No. 2 from the premises, that too, forcibly and without any authority of law, as such the action was not only illegal but also arbitrary. The petitioners could at best have advised the aggrieved party to approach competent Court or authority to have respondent No. 2 evicted in accordance with law but could not have under any circumstance taken law in their own hands and thereby forcibly evicted him i.e. respondent No. 2 from the premises. In the instant case, there is no reasonable connection between the act of the petitioners and the discharge of their official duties and, therefore, they are not entitled to the protection under Section 197 of the Act as prima facie the petitioners have acted not just in excess of jurisdiction but illegally by entertaining the dispute between the landlord and tenant with respect to commercial shop and thereafter have proceeded to the spot and forcibly dispossessed the tenant by breaking upon the locks. Such acts do not fall within the colour of office, nor can the same be termed to have been performed in discharge of public duty.

The State and its instrumentalities have to act strictly within the four corners of law and all its activities are governed by Rules, regulations and instructions etc.

Ours is a country governed by a rule of law which applies to the State and the citizens alike. The petitioners, at the relevant time, were office bearers of the Gram Panchayat and, therefore, could not have acted arbitrarily much less high handedly according to whims and fancies like autocrats. As observed above, the country is governed by the rule of law, and to put it in the immortal words of the 17th Century Church Man and Thomas Fuller “Be you never so high, the law is above you”. In a system governed by the rule of law there is nothing like absolute or unbriddled power exercisable at the whims and fancies of the repositories of such powers. There is nothing like a power without any limit or constraint. The petitioners while riding high on the fuel of power failed to realize that public offices both big and small are sacrosanct. Such offices are meant for use and not for abuse and in case the repositories of such offices spoils the rule, then the law is not that powerless and would step in.

Criminal Procedure Code, 1973 - S.197 - Sanction - Sanction to prosecute under Section 197 of the Act is required only when the alleged act has reasonable nexus between the act done and official duty.

Principles 

1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. 

2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner. 

3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule. 

4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. 

5. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. 

6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. 

7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. 

8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits. 

9. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.”

The protection given under Section 197 of the Act is to protect responsible public servants against the institution of vexatious criminal proceedings for offences alleged to have been committed by them, while they acting or purporting to act as public servant. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. However, this protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, the public servant acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. [Para 11 & 12]

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Cr. MMO No. 190 of 2018

Date of decision : 11.12.2018.

Naveen Kumar & Ors. v. State of Himachal Pradesh & anr.

For the Petitioners : Mr. Jagan Nath, Advocate.

For the Respondents : Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl. A.G., with Mr. Bhupinder Thakur Dy. A.G. for respondent No.1. : Mr. P. P. Chauhan, Advocate, for respondent No.2.

Tarlok Singh Chauhan, Judge

The petitioners were the office bearers of Gram Panchayat Mahadev and have sought quashing of FIR No. 66 of 2013, under Sections 447, 448, 452, 453, 380, 120-B of the IPC registered at Police Station BSL Colony and subsequent proceedings pending before the learned Additional Chief Judicial Magistrate, Court No. (I), Sunder Nagar, District Mandi, H.P.

2. The undisputed facts of the case are that one Brij Lal had moved an application to the Gram Panchayat on 18.05.2013 complaining that respondent No. 2 was not vacating his shop and not paying the arrears of rent and electricity bill. The Gram Panchayat issued notice to respondent No. 2 and having failed to put in appearance, he was proceeded exparte in those proceedings. The Panchayat in its proceedings on 06.08.2013 visited the spot and opened the lock which was affixed by respondent No. 2 on the shop and took into possession the articles which were in the shop. This led respondent No. 2 to file an application under Section 156(3) Cr.P.C. before the learned Additional Chief Judicial Magistrate, Court No. 1, Sunder Nagar, who directed the registration of FIR against the petitioners on 14.08.2013. The police after investigation filed a cancellation report taking a view that Panchayat officials/accused had acted under Section 19 of the Panchayati Raj Act, 1994 (for short the ‘Act’).

3. Respondent No. 2 filed objections to the cancellation report which was accepted by the learned Magistrate, who thereafter issued process against the petitioners.

4. It is vehemently argued by Shri Jagan Nath, Advocate, that the learned Magistrate has failed to appreciate the fact that the complainant i.e. respondent No. 2 illegally occupied the premises and despite several notices had not appeared before the Panchayat nor vacated the premises, therefore, no case could have been instituted against the petitioners, especially when they acted bonafidely in discharge of their official duties. I have heard learned counsel for the parties and have gone through the material on record.

5. At the outset, it needs to be stated that the petitioners, at the relevant time, were officers of the Panchayat and being public servant, were entitled to the protection under Criminal Procedure Code, 1973 read with Section 197 of the Cr.P.C. (for short the Code), provided the petitioners while carrying out the act allegedly to be committed by them, were purportedly acting in the discharge of their official duties.

6. However, in the instant case, it would be noticed that the dispute before the Panchayat was with regard to arrears of rent of commercial property. The dispute, as per the record was that respondent No. 2 had not paid arrears of rent for 9 months and had not paid the electricity bill amounting to Rs.5681/- which apparently was more than Rs.2000/-. Under Section 41 of the Act, the Panchayat has jurisdiction only with respect to money suit, suit claiming compensation and damages and suit for recovery of movable property not more than Rs.2000/-. Meaning thereby, that the Panchayat has not been conferred with any power or jurisdiction to try dispute between landlord or tenant or dispute with respect to possession of commercial shop or dispute involving more than Rs. 2000/-.

7. Section 37 of the Act clearly provides that where the Panchayat has no jurisdiction, it has to return the complaint to the Magistrate having jurisdiction, therefore, once the petitioners had no jurisdiction to entertain the dispute there was no question that they could have got the shop vacated.

8. The protection afforded to public servant can only be said to be available when he acts or purport to acts in discharge of official duty, if his act is such as to lie within the scope of official duty. The question, therefore, would be that whether the act done by the petitioners was in discharge of official duty or by virtue of their office, so as to entitle them to the protection under Criminal Procedure Code, 1973 read with Section 197 of the Code, the answer to the same is obviously in the negative.

9. It is more than settled that sanction to prosecute under Section 197 of the Act is required only when the alleged act has reasonable nexus between the act done and official duty. Reference in this regard can be made to recent judgment of the Hon’ble Supreme Court in Devender Singh and others vs. State of Punjab through CBI 2016 (12) 87, wherein after taking into consideration the entire law on the subject, the principles emerged therefrom were summarized as under:

“39. The principles emerging from the aforesaid decisions are summarized hereunder : 

39.1. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime.

39.2. Once act or omission has been found to have been committed by public servant in discharging his duty it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 CrPC has to be construed narrowly and in a restricted manner.

39.3. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection it will not deprive him of protection under section 197 Cr.P.C. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule.

39.4. In case the assault made is intrinsically connected with or related to performance of official duties sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply.

39.5. In case sanction is necessary it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority.

39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.

39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.

39.8. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.

39.9. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial.”

10. In Punjab State Wareshousing Corporation vs. Bhushan Chander and another, 2016 (13) SCC 44, the Hon’ble Supreme Court again considered the entire law on the subject and thereafter concluded as follows:-

“A survery of the precedents makes it absolutely clear that there has to be a reasonable connection between the omission or commission and the discharge of official duty or the act committed was under the colour of the office held by the official. If the acts, omission or commission of which is totally alien to the discharge of the official duty, question of invoking Section 197 Cr.P.C. does not arise.”

11. Thus, what can be conveniently deduced from the law expounded above is that the protection given under Section 197 of the Act is to protect responsible public servants against the institution of vexatious criminal proceedings for offences alleged to have been committed by them, while they acting or purporting to act as public servant. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. However, this protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, the public servant acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity.

12. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

13. Now, adverting to the facts of the case, it is clear that the petitioners have admittedly evicted respondent No. 2 from the premises, that too, forcibly and without any authority of law, as such the action was not only illegal but also arbitrary. The petitioners could at best have advised the aggrieved party to approach competent Court or authority to have respondent No. 2 evicted in accordance with law but could not have under any circumstance taken law in their own hands and thereby forcibly evicted him i.e. respondent No. 2 from the premises.

14. Ours is a country governed by a rule of law which applies to the State and the citizens alike. The petitioners, at the relevant time, were office bearers of the Gram Panchayat and, therefore, could not have acted arbitrarily much less high handedly according to whims and fancies like autocrats. As observed above, the country is governed by the rule of law, and to put it in the immortal words of the 17th Century Church Man and Thomas Fuller “Be you never so high, the law is above you”.

15. In a system governed by the rule of law there is nothing like absolute or unbriddled power exercisable at the whims and fancies of the repositories of such powers. There is nothing like a power without any limit or constraint. The petitioners while riding high on the fuel of power failed to realize that public offices both big and small are sacrosanct. Such offices are meant for use and not for abuse and in case the repositories of such offices spoils the rule, then the law is not that powerless and would step in.

16. The petitioners being office bearers of the Gram Panchayat betrayed complete ignorance to the fact that Gram Panchayat is creation of statute and is a State within the meaning of Article 12 of the Constitution of India and, therefore, cannot act like a private individual, who is free to act in a manner whatsoever he likes, unless it is interdicted or prohibited by law.

17. It needs no reiteration that the State and its instrumentalities have to act strictly within the four corners of law and all its activities are governed by Rules, regulations and instructions etc.

18. In the instant case, there is no reasonable connection between the act of the petitioners and the discharge of their official duties and, therefore, they are not entitled to the protection under Section 197 of the Act as prima facie the petitioners have acted not just in excess of jurisdiction but illegally by entertaining the dispute between the landlord and tenant with respect to commercial shop and thereafter have proceeded to the spot and forcibly dispossessed the tenant (Respondent No. 2) by breaking upon the locks. Such acts do not fall within the colour of office, nor can the same be termed to have been performed in discharge of public duty.

19. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed.

20. However, before parting, it is made clear that observations made herein are solely for the purpose of deciding the present lis and shall not in any way be construed to be an opinion on the merits of the case.