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Supreme Court of India
Indra Devi vs The State Of Rajasthan on 23 July, 2021Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Hemant Gupta
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 593 OF 2021
[Arising out of SLP (Crl) No. 1605 of 2018]
INDRA DEVI ……APPELLANT
VERSUS
STATE OF RAJASTHAN & ANR. ….RESPONDENTS
WITH
CRIMINAL APPEAL NO. 594 OF 2021
[Arising out of SLP (Crl) No.5015 of 2021
D.No. 7196 of 2019]
STATE OF RAJASTHAN ……APPELLANT
VERSUS
YOGESH ACHARYA ….RESPONDENT
JUDGMENT
SANJAY KISHAN KAUL, J.
1. Indra Devi, the appellant, is the complainant in FIR No.80 dated
23.02.2011 registered under Sections 420/467/468/471/120B of the IPC and
Signature Not Verified
Sections 3(1)(4)/3(15)/3(5) of the Scheduled Caste & Scheduled Tribe
Digitally signed by
Charanjeet kaur
Date: 2021.07.23
15:26:59 IST
Reason:
(Prevention of Atrocities) Act at P.S. Kotwali, Distt. Barmer. It was alleged
that she and her husband Bhanwar Lal purchased two plots in Khasra
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No.1179/03 located in Distt. Barmer. Out of these two plots, one plot was
sold to one Megharam while another plot was sold to one Chetan Choudhary.
In the plot purchased in the name of her husband, a residential house and
shops are stated to have been made. Megharam is alleged to have
tampered with and fabricated the agreement with the intention to defraud.
This was allegedly done in collusion with the then executive officer of the
Municipality, one Surender Kumar Mathur and “the concerned clerk and
others”, by enlarging the dimensions of the plot which have been sold to him
with the intention to grab the land and house occupied by the complainant
and her husband. The Khasra number is also alleged to have been changed
from 1179/03 to 1143/04. This fact is stated to have come to the notice of
the complainant only when they were served with a court notice when they
were in physical possession of the plot with the house and the shop. Her
husband is stated to have gone to Jaipur for treatment of cancer. The
accused persons are, thus, alleged to have committed the offences of
fraudulently making a scheduled caste women, her cancer diagnosed
husband and other family members homeless. It may be noted that
Respondent No.2 herein, Yogesh Acharya was not named in the FIR but,
apparently, he is stated to be “the concerned clerk”.
2. In pursuance of the investigation, a chargesheet was filed and charges
were framed vide order dated 10.04.2012 against Megharam. Once again
Respondent No.2 was not named in the chargesheet but a reference was
made to Megharam acting in collusion with “co-accused persons”.
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3. The records placed before us do not reflect how Respondent No.2 was
exactly roped in, but suffice to say, Respondent No.2 moved an application
under Section 197 of the CrPC before the trial court stating that he was a
public servant and what he did in respect of allotment of lease, that was
executed in favour of Megharam, was done during the course of his official
duty and thus he was entitled to protection under the aforementioned
provision. He also sought to assail the chargesheet as the same had been
filed without obtaining sanction of the competent authority under Section
197 of the CrPC.
4. The trial court dismissed the application vide order dated 10.08.2017,
while noticing that Respondent No.2 had not been mentioned in the FIR. It
was opined that it was the duty of Respondent No.2 to bring irregularities to
the knowledge of the competent officers, i.e. Megharam had mentioned the
wrong Khasra number in the lease but no documents of ownership of the
land were produced. The trial court was of the view that had the
discrepancies been brought to the knowledge of the competent officers by
Respondent No.2, the disputed lease would not have been issued. The result
of the failure to do so caused the forged lease to be prepared. Respondent
No.2 had also drafted the disputed lease in which he failed to mention
necessary details. It was, thus, opined that Respondent No.2 was liable to be
prosecuted against for having committed criminal offence to procure a
forged lease. What Respondent No.2 did was held not to be done by the
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public servant in discharge of his official duty and thus protection under
Section 197 of the CrPC would not come to his aid.
5. Respondent No.2 thereafter filed a Crl. Misc. Petition No.3138/2017
under Section 482 of the CrPC before the High Court of Judicature at Jodhpur
assailing the said order of the trial court. The High Court, vide impugned
order dated 03.10.2017, allowed the petition. It was opined that the case
was similar to the one of Devi Dan v. State of Rajasthan1. The High Court
had opined therein that sanction under Section 197 of the CrPC was required
before triggering any prosecution against the Station House Officer for
filing/failing to file an FIR and for other criminal acts committed during the
discharge of his duties. The complainant, aggrieved by the said judgment,
has approached this court by filing a special leave petition. The State has
also filed an SLP. Leave was granted in both the matters.
6. The appellant contended before us that the involvement of Respondent
No.2 only came to light during investigation. He had failed to bring the
irregularities to the knowledge of his superiors which was instrumental in
issuing the forged lease. Thus, he had conspired with his superiors in
dishonestly concealing the forgery, and intentionally omitting mentioning the
date of the proceedings on the order sheet. Such action of forging
documents would not be considered as an act conducted in the course of his
official duties and, thus Section 197 of the CrPC would not give protection to
Respondent No.2.
1 Crim. Misc. Pet. No.2177/2013 decided on 10.10.2014
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7. On the other hand, Respondent No.2 endeavoured to support the
impugned judgment of the High Court by emphasising that in FIR only
Megharam alongwith some unnamed officials were mentioned. Surender
Kumar Mathur, the Executive Officer of the Nagar Palika, had filed a petition
under Section 482 of the CrPC relating to the same transaction and the High
Court had granted him protection under Section 197 of the CrPC vide order
dated 22.02.2018. The conduct of putting his initials was held to be an act
done in discharge of his duties. Similarly, Sandeep Mathur, a Junior
Engineer, who was part of the same transaction, was granted protection by
the Sessions Court vide order dated 19.03.2020, once again under the same
provision, i.e., Section 197 of the CrPC. Both the orders remained
unchallenged by the complainant and the State. Further, it has been argued
that Respondent No.2 was simply carrying out his official duty which is
apparent from the work allotted to him that pertained to allotment,
regularisation, conversion of agricultural land and all kinds of work relating to
land and conversion. The application of Megharam was routed through the
office, and the proceedings show that the file was initially put up before the
Executive Officer, who directed inspection, which was carried out by the
Junior Engineer. Thereafter, file was placed before the Executive Officer
again and only then was it signed by the Municipal Commissioner. The two
key people involved in the process had already been granted protection and
thus Respondent No.2 herein, who was merely a Lower Division Clerk, could
not be denied similar protection.
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8. Learned counsel for Respondent relied upon the judgments of this
Court in B. Saha & Ors. Vs. M.S. Kochar2 and State of Maharashtra Vs. Dr.
Budhikota Subbarao3 to contend that Section 197 of the CrPC ought to be
read in a liberal sense for grant of protection to the public servant with
respect to actions, which though constitute an offence, are “directly and
reasonably” connected with their official duties.
9. We have given our thought to the submissions of learned counsel for
the parties. Section 197 of the CrPC seeks to protect an officer from
unnecessary harassment, who is accused of an offence committed while
acting or purporting to act in the discharge of his official duties and, thus,
prohibits the court from taking cognisance of such offence except with the
previous sanction of the competent authority. Public servants have been
treated as a special category in order to protect them from malicious or
vexatious prosecution. At the same time, the shield cannot protect corrupt
officers and the provisions must be construed in such a manner as to
advance the cause of honesty, justice and good governance. [See
Subramanian Swamy Vs. Manmohan Singh4]. The alleged indulgence of the
officers in cheating, fabrication of records or misappropriation cannot be said
to be in discharge of their official duty. However, such sanction is necessary
if the offence alleged against the public servant is committed by him “while
acting or purporting to act in the discharge of his official duty” and in order
2 (1979) 4 SCC 177
3 (1993) 3 SCC 339
4 (2012) 3 SCC 64
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to find out whether the alleged offence is committed “while acting or
purporting to act in the discharge of his official duty”, the yardstick to be
followed is to form a prima facie view whether the act of omission for which
the accused was charged had a reasonable connection with the discharge of
his duties. [See State of Maharashtra Vs. Dr. Budhikota Subbarao]5. The real
question, therefore, is whether the act committed is directly concerned with
the official duty.
10. We have to apply the aforesaid test to the facts of the present case. In
that behalf, the factum of Respondent No.2 not being named in the FIR is not
of much significance as the alleged role came to light later on. However,
what is of significance is the role assigned to him in the alleged infraction,
i.e. conspiring with his superiors. What emerges therefrom is that insofar as
the processing of the papers was concerned, Surendra Kumar Mathur, the
Executive Officer, had put his initials to the relevant papers which was held
in discharge of his official duties. Not only that, Sandeep Mathur, who was
part of the alleged transaction, was also similarly granted protection. The
work which was assigned to Respondent No.2 pertained to the subject matter
of allotment, regularisation, conversion of agricultural land and fell within his
domain of work. In the processing of application of Megharam, the file was
initially put up to the Executive Officer who directed the inspection and the
inspection was carried out by the Junior Engineer and only thereafter the
Municipal Commissioner signed the file. The result is that the superior
5 supra
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officers, who have dealt with the file, have been granted protection while the
clerk, who did the paper work, i.e. Respondent No.2, has been denied similar
protection by the trial court even though the allegation is of really conspiring
with his superior officers. Neither the State nor the complainant appealed
against the protection granted under Section 197 of the CrPC qua these two
other officers.
11. We are, thus, not able to appreciate why a similar protection ought not
to be granted to Respondent No.2 as was done in the case of the other two
officials by the Trial Court and High Court respectively. The sanction from
competent authority would be required to take cognisance and no sanction
had been obtained in respect of any of the officers. It is in view thereof that
in respect of the other two officers, the proceedings were quashed and that
is what the High Court has directed in the present case as well.
12. In view of the aforesaid, the appeals are dismissed leaving the parties
to bear their own costs.
……..……………………………….J.
[SANJAY KISHAN KAUL]
……..……………………………….J.
[HEMANT GUPTA]
NEW DELHI.
JULY 23, 2021
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