Patna High Court – Orders
Rajesh Jha Raja vs State Of Bihar And Anr on 13 December, 2024
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.32637 of 2015
Arising Out of PS. Case No.-3503 Year-2010 Thana- PURNIA COMPLAINT CASE District-
Purnia
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Rajesh Jha 'Raja', Son of Shri Radha Ballabh Jha, R/o Village P.O P.S-
Bangaon, District Sasaram (Bihar)
... ... Petitioner
Versus
1. The State of Bihar
2. Md. Nasim S/o late Sk. Ismail Resident of village- Kakarjan, P.S.-K Nagar,
Disrict Purnia.
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner : Mr. P.N. Shahi, Sr. Advocate
Mr. Nishant Kumar Jha, Advocate
For the State : Ms. Madhuri Lata, APP
For the O.P. No. 2 : None
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CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL ORDER
8 13-12-2024
The present petition has been preferred by the
petitioner under Section 482 Cr.PC against the impugned order
dated 29.10.2012 passed by Ld. Judicial Magistrate, Purnia in
Criminal Complaint Case No. 3503 of 2010, whereby Ld.
Magistrate has taken cognizance of offence punishable under
Sections 468, 471, 480 and 120B of the Indian Penal Code
against the petitioner along with ten other co-accused.
2. As per the complaint the Petitioner was a Circle
Officer and passed Mutation Order dated 24.09.2004 in
Mutation Case No. 703 of 2004-05 in regard to the land in
question on the application of accused nos. 1, 2, 3 and 4 and
accused nos. 7, 8, 9, 10 and 11 were employees in the Block
Revenue Department.
3. I heard Ld. counsel for the petitioner and Ld. APP
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for the State. However, nobody is present on behalf of the
Opposite Party No.2 despite valid service of notice.
4. Ld. counsel for the petitioner submits that the
petitioner is innocent and has falsely been implicated in this
case. He further submits that the relevant facts shorn of
necessary details is that initially, one Criminal Complaint was
filed by the Complainant and as per which learned Magistrate
directed the police to lodge FIR and investigate the matter under
Section 156(3) Cr.PC. Subsequently, FIR was lodged by the
police and Final Form was submitted against all the accused
persons including the Petitioner finding no truth in the
allegation. However, in the said proceeding, the protest petition
was filed and the said protest petition was treated as complaint,
wherein the impugned order has been passed taking cognizance
against the Petitioner as well as other co-accused.
5. Ld. counsel for the petitioner further submits that
the Magistrate has passed the Mutation Order in good faith after
giving notice to the Opposite Parties in the Mutation Proceeding
and the same Mutation order has been upheld in Mutation
Appeal No. 10 of 2006 vide order dated 08.07.2006. The
Mutation Revision filed by the Complainant is still pending
consideration.
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6. Learned counsel for the petitioner further submits
that petitioner has passed the Mutation Order in discharge of his
official duty as a Circle Officer. Hence, he can not be prosecuted
for his order without sanction of the Bihar Government as
required under Section 197 of Cr.PC. He further submits that
while passing Mutation Order, he was acting as quasi-judicial
body. Hence, he is also protected under the Judges Protection
Act, 1985 as per which Court is debarred from entertaining or
continuing any Civil or Criminal proceeding against any person
who has acted in discharge of his judicial duty.
7. However, Ld. APP for the State defends the
impugned order submitting that there is no illegality or
impropriety in the impugned order.
8. I considered the submissions advanced by both the
parties and perused the material on record.
9. Here, it would be relevant to refer to Section 197
Cr.PC which provides for protection to a Judge, Magistrate or a
Public Servant from prosecution for any offence which has been
allegedly committed by him while acting or purporting to act in
the discharge of his official duty unless previous sanction by the
appropriate Government for his prosecution is granted. Without
such previous sanction, no Court can take cognizance of such
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offence. A trial without a valid sanction, where one is necessary,
is a trial without jurisdiction rendering the criminal proceeding
void ab initio. In this regard, one may refer to the following
judicial precedents:
(i) R.R. Chari Vs. State of U.P., AIR 1962 SC 1573
(ii) S.N. Bose Vs. State of Bihar, AIR 1968 SC 1292
(iii) Md. Iqbal Ahmed Vs. State of A.P., AIR 1979 SC 677
(iv) R.S. Nayak Vs. A.R. Antulay, AIR 1984 SC 684
10. Section 197 Cr.PC 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:
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.
Explanation. – For the removal of doubts it is
hereby declared that no sanction shall be required in case
of a public servant accused of any offence alleged to have
been committed under section 166A, section 166B,
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section 354D, section 370, section 375, section 376,
section 376A, section 376AB, section 376C, section
376D, section 376DA, section 376DB,] [Inserted by
Criminal Law (Amendment) Act, 2013] or section 509 of
the Indian Penal Code(45 of 1860).
……………………………………………………”
11. The object and purpose underlying this Section is
to afford protection to public servants against frivolous,
vexatious or false prosecution for offences alleged to have been
committed by them while acting or purporting to act in the
discharge of their official duty. The larger interest of efficiency
of State administration demands that public servants should be
free to perform their official duty fearlessly and undeterred by
apprehension of their possible prosecution at the instance of
private parties to whom annoyance or injury may have been
caused by their legitimate acts done in the discharge of their
official duty. This Section is designed to facilitate effective and
unhampered performance of their official duty by public servant
by providing for scrutiny into the allegations of commission of
offence by them by their superior authorities and prior sanction
for their prosecution as a condition precedent to the cognizance
of the cases against them by the Courts. In this regard, the
following judicial precedents may be referred to:
(i) Bhagwan Prasad Srivastava v. N.P. Mishra
(1970) 2 SCC 56
(ii) Pukhraj Vs. State of Rajasthan
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(iii) Lakshmansingh Himatsingh Vaghela (Dr) Vs.
Naresh Kumar Chandrashanker Jah
(1990) 4 SCC 169
(iv) Centre for Public Interest Litigation Vs. U.O.I.
(2005) 8 SCC 202
(v) Choudhury Parveen Sultana Vs. State of W.B.,
(2009) 3 SCC 398
(vi) State of Bihar Vs. Rajmangal Ram
(2014) 11 SCC 388
12. Explaining the meaning and scope of Section 197
Cr.PC, Hon’ble Supreme Court in Pukhraj Vs. State of
Rajasthan, (1973) 2 SCC 701 has held that what is necessary is
that the offence must be in respect of an act done or purported to
be done in the discharge of an official duty. It does not apply to
acts done purely in a private capacity by a public servant.
13. Interpreting the meaning of the expression
“official duty”, Hon’ble Supreme Court in State of Orissa Vs.
Ganesh Chandra Jew, (2004) 8 SCC 40 has held that the
official duty implies the Act or omission done by the public
servant in course of his service and it has been done in discharge
of his duty. It has further held that Section 197 Cr.PC does not
extend its protective cover to every Act or omission done by a
public servant while in service. The scope of operation of the
Section is restricted to only those Acts or omissions which are
done by a public servant in discharge of his official duty.
14. In Shreekantiah Ramayya Munipalli Vs. State
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of Bombay, (1954) 2 SCC 992, Hon’ble Supreme Court has
held if Section 197 Cr.PC is construed too narrowly, it 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.
15. In P. Arulswami Vs. State of Madras, AIR 1967
SC 776, Hon’ble Supreme Court has held that it is the quality
of the Act that is important and if it falls within the scope and
range of his official duties, the protection contemplated by
Section 197 Cr.PC would be attracted. But, if the Act is totally
unconnected with the official duty, there can be no protection. It
is only when it is either within the scope of the official duty or
in excess of it that the protection is claimable.
16. In B. Saha Vs. M.S. Kochar, (1979) 4 SCC 177,
Hon’ble Supreme Court has held that sine qua non for the
applicability of section 197 Cr.PC is that the offence charged
must be one which has been committed by the public servant
either in his official capacity or under colour of the office held
by him.
17. In Om Prakash Vs. State of Jharkhand, (2012)
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12 SCC 72, Hon’ble Supreme Court has held that the true test
as to whether a public servant was acting or purporting to act in
discharge of his duties would be whether the act complained of
was directly connected with his official duties or it was done in
the discharge of his official duties or it was so integrally
connected with or attached to his office as to be inseparable
from it. It has been further held that protection given under
Section 197 Cr.PC 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.
18. Hon’ble Supreme Court in D. Devaraja Vs.
Owais Sabeer Hussain, (2020) 7 SCC 695 has held that to
decide whether sanction is necessary, the test is whether the act
is totally unconnected with official duty or whether there is a
reasonable connection with the official duty. In the case of an
act of a policeman or any other public servant unconnected with
the official duty there can be no question of sanction. Hon’ble
Apex Court further held that if the act alleged in a complaint
purported to be filed against the public servant is reasonably
connected to discharge of his official duty, the cognizance
thereof cannot be taken unless requisite sanction of the
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appropriate Government is obtained under Section 197 Cr.PC.
19. Hon’ble Supreme Court has also held in para 74
of D. Devaraja case (supra) that it is well settled that an
application under Section 482 of the Criminal Procedure Code
is maintainable to quash proceedings which are ex facie bad for
want of sanction, frivolous or in abuse of process of court. If, on
the face of the complaint, the act alleged appears to have a
reasonable relationship with official duty, where the criminal
proceeding is apparently prompted by mala fides and instituted
with ulterior motive, power under Section 482 of the Criminal
Procedure Code would have to be exercised to quash the
proceedings, to prevent abuse of process of Court.
20. In a celebrated judgment of State of Haryana Vs.
Bhajan Lal [1992 Suppl (1) SCC 335], Hon’ble Supreme
Court has held, amongst other things, that in case of any bar of
institution or continuation of prosecution under any provisions
of law, the Court can invoke inherent power under Section 482
Cr.PC to prevent the abuse of the process of the Court and
secure the ends of justice.
21. Coming to the case on hand, I find that the alleged
offence is connected with Mutation Order dated 19.10.2004
passed by the Petitioner in Mutation Case No. 703 of 2004-05
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and there is no dispute that Mutation Order has been passed by
the Petitioner officiating as Circle Officer in discharge of his
official duty upon the application filed by co-accused. The
Petitioner has also followed the procedure while passing the
Mutation Order and this order passed by the Petitioner has been
upheld by the Appellate Authority and even the Revision
preferred by the Complainant against the Appellate Order is
pending consideration. But admittedly, there is no sanction
obtained by the Complainant for prosecution of the petitioner
from the Government of Bihar who is the employer of the
Petitioner. Hence, Ld. Magistrate was not competent to take
cognizance of the alleged offence against the Petitioner. As
such, the impugned order is not sustainable and liable to be
quashed under Section 482 Cr.PC.
22. I also find that the complaint and the subsequent
impugned order against the Petitioner is not
maintainable/sustainable even in the light of the Judges
(Protection) Act, 1985 which provides additional protection to
Judges. The definition of Judge under Section 2 of the Act of
1985 is very wide which includes quasi-judicial authority or
body like Circle Officer while passing order in Mutation
proceedings. Section 2 of the Judges (Protection) Act, 1985,
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reads as follows:-
“2. Definition.–In this Act, “Judge” means not only
every person who is officially designated as a Judge, but
also every person-
(a) who is empowered by law to give in any legal
proceeding a definitive judgment, or a judgment which, if
not appealed against, would be definitive, or a judgment
which, if confirmed by some other authority, would be
definitive; or
(b) who is one of a body of persons which body of
persons is empowered by law to give such a judgment as
is referred to in clause (a).”
23. Madhya Pradesh High Court in similar
situations has held in the following judgments that
Tehsildar/Naib Tehsildar is entitled to get the protection as
provided in the Judges (Protection) Act, 1985 while exercising
powers under the M.P. Land Revenue Code including the
Mutation proceedings.
(i) Mahesh Kumar Badole Vs. The State of M.P.
Station House Officer, Manu/MP/1769/2023
(ii) S.K. Jamra and Ors. Vs. Rajaram and Ors. in
Cr. Appeal No. 2017/2016 dated 15.03.2019.
(iii) Balram & Anr. Vs. Ashwani Kumar Yadav &
Anr., 2001 (2) MPHCT 330.
(iv) Om Prakash Vs. Surjan Singh, 2004 RN 31
(v) S.S. Trivedi Vs. State of M.P.,
MANU/MP/0954/2007
24. Section 3 of the Act of 1985 clearly provides that
no civil or criminal proceeding can be entertained or continued
against any judge in regard to any act allegedly committed while
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acting or purporting to Act in discharge of his official or judicial
duty or function. Hence, complaint itself was not maintainable
before the Ld. Magistrate. The Magistrate should not have
entertained or continued the complaint proceeding, because the
same is barred under Section 3 of the Judges (Protection) Act,
1985. Section 3 of the Act reads as follows:-
“3. Additional protection to Judges. — (1)
Notwithstanding anything contained in any other law for
the time being in force and subject to the provisions of
sub-section (2), no court shall entertain or continue any
civil or criminal proceeding against any person who is or
was a Judge for any act, thing or word committed, done or
spoken by him when, or in the course of, acting or
purporting to act in the discharge of his official or judicial
duty or function.
(2) Nothing in sub-section (1) shall debar or affect in any
manner the power of the Central Government or the State
Government or the Supreme Court of India or any High
Court or any other authority under any law for the time
being in force to take such action (whether by way of
civil, criminal, or departmental proceedings or otherwise)
against any person who is or was a Judge.”
25. Accordingly, the present petition is allowed,
quashing the entire criminal proceedings arising out of the
Criminal Complaint No. 3503 of 2010, including the impugned
order dated 29.10.2012, passed by Ld. Judicial Magistrate,
Purnia, in the Complaint qua the Petitioner.
(Jitendra Kumar, J.)
Chandan/-
U T AFR/NAFR AFR