Deciding authority: Supreme Court of India
Name of the Judges: Justice Arjit Pasayat and Justice G.P. Mathur
Date of Judgment: 03/01/2006
Facts of the Case: This was an appeal against the judgment of Patna High Court where the Court dismissed the petition filed by the Appellant under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the order of cognizance taken by learned Judicial Magistrate, Patna, on a complaint filed by Ramesh Kumar Dubey (Respondent No.2). By order dated 11.1.2000 learned Judicial Magistrate took cognizance of offences punishable under Sections 342, 389, 469, 471 and 120(B) of the Indian Penal Code, 1860. Appellant before the High Court contested that proceeding cannot be continued since there was absence of sanction required under Section 197 of Code of Criminal Procedure. In the impugned judgment High Court rejected the prayer holding that since the requirement of Section 100(4) of the Code were not followed, while search was conducted in the premises of Respondent No.2, the provisions of Section 197 of the Code were not applicable.
Judgement: Learned counsel for Appellant submitted that the High Court has held that the protection under Section 197 of the Code was not available without noticing relevant factual background. According to him a report on commission of dacoity was received on 8/9-7-1996. Supervision of the case was being done by the Appellant and according to an information there was alleged involvement of Ratnesh Kumar Dubey, son of Respondent No.2. Search was conducted on basis of such information in the house of Respondent No. 2 where Ratnesh was not found and also no material substance was found. It was alleged by Respondent No. 2 and his son that the search was motivated and was for the purpose of humiliating and harassing, as the concerned officials did not have a search warrant, and complaint on 26.11.1996 was filed on behalf of Respondent No. 2c and his son in the Court of Chief Judicial Magistrate, Patna. Subsequently, the application under Section 482 of the Code was filed by the appellant which came to be dismissed by the impugned judgment. It was submitted that High Court overlooked the powers available to be exercised under Sections 41, 165 and 166 of the Code and Rule 165 of the Bihar Police Manual. Respondent No. 2 alleges that no material has been brought on record from where name of Ratnesh had cropped up and the act done was outside scope of official duty. Therefore, protection under Section 197 is not available. In view of the aforementioned arguments, the Court took reference of case Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr., AIR (1988) SC 257, where it was found. that 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. The Court was of view that if on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to official to which applicability of Section 197 of the Code cannot be disputed. Court took reference of Law Commission where in its 41st Report in paragraph 15.123 while dealing with Section 197, as it then stood, observed “it appears to us that protection under the Section is needed as much after retirement of the public servant as before retirement and this position was highlighted in R. Balakrishna Pillai v. State of Kerala, AIR (1996) SC 901, in State of M.P. v. M.P. Gupta, [2004] 2 SCC 349, in State of Orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew [2004] 8 SCC 40, and in Shri S.K. Lutshi and Anr. v. Shri Primal Debnath and Anr., [2004] 8 SCC 31. The Court after considering the factual background came to a conclusion that the High Court was not justified in holding that the Section 197 was not applicable to the facts of the case and Section 197 of the Code had clear application in the instant case. High Court focused only on the absence of the search warrant and relevant facts were ignored. The events which allegedly took place after 11.7.1996 on which emphasis was laid by the respondent no.2 have really no relevance for the issue under consideration. Their effect can be considered at the appropriate stage. The Court makes it clear that its view was only in respect of applicability of Section 197 of the Code.
Held: The appeal was allowed and the order of Magistrate taking cognizance was set aside.
By: Ashna Handa, 5th Year, Amity Law School-II, Noida
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