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2017 (5) TMI 1809 - HC - Indian LawsCancellation of License of the Gas Agency - indulging in malpractices to enforce the provisions of the Essential Commodities Act. It is the submission of appellant that in view of the offence for which the applicants have been charged for has been committed while acting or purporting to act in discharge of their official duty sanction of the Government was a must. HELD THAT - Section 197 of the Code of Criminal Procedure provides that when any person or a public servant 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 of the Government. In the case of SHAMBHOO NATH MISRA VERSUS STATE OF U.P. AND ORS. 1997 (3) TMI 645 - SUPREME COURT the Supreme Court referred to the judgment of B. Saha vs. M.S. Kochar 1979 (7) TMI 242 - SUPREME COURT . In the aforesaid case a complaint was filed under Sections 409 420 465 468 477-A against a cashier who after fabricating the signature of the complainant therein withdrew money. The High Court recorded a finding that the act was done in discharge of duties as there was a reasonable connection between the act and discharge of official duties. In the case of Parkash Singh Badal 2006 (12) TMI 548 - SUPREME COURT the Supreme Court has referred to a judgment in the case of PK PRADHAN VERSUS THE STATE OF SIKKIM REPRESENTED BY C.B.I. 2001 (7) TMI 1298 - SUPREME COURT . In the case of P.K. Pradhan the Supreme Court while dealing with the legislative mandate of Section 197 that the offence alleged to have been committed must have something to do or must be related in some manner with discharge of official duty even if it is excess if the needs and requirements establish then it can be said to be done in discharge of official duty and after reviewing the case law it was held that The Court had observed that before arriving at a conclusion whether the provisions of Section 197 of the Code will apply the court must conclude that there is a reasonable connection between the act complained of and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty. Recently also the Supreme Court considered the case law on Section 197 of the Code of Criminal Procedure in the case of Punjab State Warehousing Corporation versus Bhushan Chander and Another reported in 2016 (6) TMI 1138 - SUPREME COURT . In the said case the Supreme Court was considering the case of an employee of a Public Sector Undertaking. The High Court had held that the offences under Sections 467 468 and 471 were also with one under Section 409 of the IPC and therefore the offences were so intermingled with the discharge of official duty sanction was necessary. In light of the decisions of the Supreme Court it needs to be decided as to whether the offence alleged can be said to be one directly connected with the duty of the petitioners or has a reasonable nexus with the duties that they performed. There is a clear finding in the report that there has been tampering with the record. The learned Magistrate based on such a report has come to the conclusion that the protective umbrella of Section 197 of the Criminal Procedure Code is in the facts of the case not available to the petitioners as the offence cannot be said to have been committed in discharge of or in purported discharge of official duty nor can it be said to have been reasonably connected with the duties or under colour of office. The act or offences for which they are charged for are under Sections 465 467 471 read with Section 120(B) of the Indian Penal Code. The act of fabrication or tampering may be a part of the same transaction however the objectionable action is performed under the cloak of office whereas the intention was apparent. From the ratio of the judgments what is culled out is that even while discharging official duties if a public servant enters into a criminal conspiracy or indulges in criminal misconduct such misdemeanor on his part cannot be treated as a part of his official duties and hence provisions of section 197 are not attracted. Looking to the case on hand when the offence alleged to have been committed is tampering of records such conduct cannot but only amount to a misdemeanor not connected with or while in purported exercise of official duties. Here only the official capacity enabled the accused to carry out inspection and record statements. Further under the cloak of such official duty or when such capacity has been used to fabricate records it cannot be said that the act is under colour of duty in discharge of official duty or has a nexus with the duty. The contention of learned Senior Counsel Mr. Raju that since the offence is committed while in discharge of official duty or in purported exercise thereof is therefore rejected. Having said that no protection under Section 197 is available to the petitioners the Order of the Magistrate dated 11/2/2010 issuing process cannot be faulted - Having held that Section 197 of the Criminal Procedure Code would not apply to the case consequentially even the contention of the petitioners that the action of filing the FIR and investigation violates the provisions of Section 15-A of the Essential Commodities Act also deserves to be rejected. Application dismissed.
Issues Involved:
1. Whether the actions of the accused fall under the protection of Section 197 of the Criminal Procedure Code. 2. Whether the accused committed forgery and tampering of records. 3. Whether the prosecution of the accused is barred under Section 15A of the Essential Commodities Act. 4. Whether the complaint and subsequent proceedings should be quashed under Section 482 of the Criminal Procedure Code. Detailed Analysis: 1. Protection under Section 197 of the Criminal Procedure Code: The court analyzed whether the accused, who were public servants, acted in discharge of their official duties when they allegedly committed the offenses. The court noted that Section 197 provides protection to public servants for acts done in discharge of official duties. However, this protection does not extend to acts that are criminal in nature, such as forgery or tampering of records. The court cited several precedents to establish that if the act complained of is directly connected with official duties, protection under Section 197 is available. However, if the act is done under the cloak of official duty but is actually a criminal act, the protection is not applicable. The court concluded that the alleged acts of tampering with records and forgery were not done in discharge of official duties but were criminal acts committed under the guise of official duties. Therefore, the protection under Section 197 was not available to the accused. 2. Forgery and Tampering of Records: The court examined the allegations that the accused recorded the statement of a dead person and made alterations in another statement with a different pen. The investigation report by the Deputy Superintendent of Police (DSP) found prima facie evidence of tampering and falsification of records. The court held that these acts were intentional and aimed at damaging the reputation of the complainant's gas agency. The court emphasized that such acts cannot be considered as part of the official duties of the accused and thus do not warrant the protection under Section 197. 3. Prosecution Barred under Section 15A of the Essential Commodities Act: The court rejected the argument that the prosecution was barred under Section 15A of the Essential Commodities Act. The court noted that Section 15A provides protection to public servants acting in good faith in discharge of their duties under the Act. However, the acts of forgery and tampering of records cannot be considered as actions taken in good faith under the Act. Therefore, the prosecution was not barred by Section 15A. 4. Quashing of Complaint under Section 482 of the Criminal Procedure Code: The court considered whether the complaint and subsequent proceedings should be quashed under Section 482, which provides for the inherent powers of the High Court to prevent abuse of process or to secure the ends of justice. The court held that there was a prima facie case against the accused based on the investigation report and the allegations in the complaint. The court found no abuse of process and ruled that the complaint should not be quashed. The court emphasized that the trial should proceed based on the evidence available on record, and the observations made in this judgment should not influence the trial court. Conclusion: The court dismissed the petition, holding that the accused were not entitled to protection under Section 197 of the Criminal Procedure Code or Section 15A of the Essential Commodities Act. The court found sufficient prima facie evidence of forgery and tampering of records to proceed with the trial. The complaint and subsequent proceedings were not quashed, and the interim relief was vacated. The trial court was directed to proceed with the trial without being influenced by the observations made in this judgment.
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